UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


1    0 


A 


DIGEST 


OF 


DECISIONS  IN  CRIMINAL  CASES, 


CONTAINED   IN   THE   REP-^JJRTS 


FEDERAL  COURTS  AND  THE  COURTS  OF  THE 
SEVERAL  STATES, 

FROM  THE  EARLIEST  PERIOD  TO  THE  PRESENT  TIME. 


By   THOMAS   W.  WATERMAN, 


COUNSELLOR    AT    LAW. 


NEW    YORK: 
BAKER,   VOORHIS   &   CO.,  LAW   PUBLISHERS, 

G6    NASSAU    STREET. 

1877. 


Entered  according  to  Act  of  Congres?,  in  the  year  one  thousand  eight  hundred  and  seventy-seven, 

By   baker,    VOORHIS   <fe   CO., 

In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


6c 


f?77 


BAKER  &  GODWIN,  Printers, 
25  Park  Row,  N.  Y. 


PREFACE. 


The  preparation  of  the  following  pages  was  undertaken 
by  the  author  at  the  solicitation  of  the  publishers,  who,  from 
their  familiarity  as  booksellers  with  the  wants  of  the  profession, 
were  convinced  of  the  desirability  of  such  a  work.  A  digest 
of  decisions  on  criminal  law,  compiled  by  Mr.  John  L.  Hakes, 
was  published  several  years  ago,  and  it  was  at  first  designed 
to  revise  and  republish  Mr.  Hanes'  book,  adding  thereto  the 
subsequent  cases.  That  project  was,  howev^er,  abandoned  as  im- 
practicable ;  it  being  found  necessary,  for  purposes  of  condensa- 
tion and  rearrangement,  to  write  an  entirely  new  w^ork,  which 
has  been  done. 

The  leadino;  features  aimed  at  in  this  dio;est  have  been,  the 
incorporation  into  it  of  all  of  the  Federal  and  State  decisions 
on  criminal  law  of  any  importance,  omitting  such  as  are  obso- 
lete, or  of  merely  local  and  temporary  interest;  tlie  presenta- 
tion of  the  points  decided  in  simple  and  concise  language,  with- 
out repetition ;  the  giving  of  a  succinct  and  comprehensive  state- 
ment of  facts,  whenever  such  statement  is  needed  for  the  under- 
standing of  the  subject ;  the  bringing  together  under  each  head 
all  the  cases  which  support  the  same  proposition,  thus  avoiding 
the  needless  reiteration  of  similar  legal  principles ;  and  finally, 
the  systematic  and  orderly  arrangement  of  the  whole,  with  ap- 
propriate cross  references.  How  far  the  author  has  succeeded 
in  carrying  out  the  foregoing  programme,  must  be  determined 
by  others;  but  he  indulges  the  hope,  that  in  view  of  the 
difficulty  of  such  a  task,  of  which  none  are  so  well  aware  as 
those  w'hose  opinion  is  of  the  most  value,  the  measure  of  its 
performance  may  be  deemed  sufficient. 

By  an  elaboration  of  the  materials  at  command,  the  work 
might  easily  have  been  swelled  to  two  volumes.  Such  an  in- 
crease of  its  size  would  however  have  enhanced  its  cost,  without 


7 


?.'  rjT'.y 


VI 


REPORTS  REFERRED   TO. 


Michigan 

NAME    OF    REPORT. 

Douglass 

Manning  (1  Michigan)   . 

Michigan 


Minnesota 


Minnesota 


NO.    OF    VOLS. 

2 

1 

33 


Mississippi. 

Howard  ("2-8  Mississippi)    . 
Mississippi  (33-49) 
Sincdes  and  ^Marshall  (9-32  Miss.) 
Walker  (1  Mississippi)  . 


Missouri 


Montana 


Nebraska 


Nevada 


Missouri, 


Montana. 


Nebraska. 


Nevada, 


New  Hampshire. 
Foster  (31-31  New  Hampshire) 
New  Hampshire  (1-20  and  33-55) 

New  Jersey. 

Coxe  (1  New  Jersey) 
Dutcher  (25-29  New  Jersey)     . 
Green  (13-15  New  Jersey) 
Halsted  (6-12  New  Jersey) 
Harrison  (16-19  New  Jersey) 
Pennington  (2-3  New  Jersey)    , 
Southard  (4-  5  New  Jersey) 
Spencer  (20  New  Jersey) 
Vroom  (30-37  New  Jersey) 
Zabriskie  (21-24  New  Jersey)  . 


New  York 
Abbott 
Barbour 
Caines 

Caines'  Cases 
City  Hall  Recorder 
Comstock  (1-4  New  York) 
Court  of  Appeals  Decisions,  by  Abbott 
Cowen 
Denio 
Hill  . 
Johnson 
Johnson's  Cases 
Keyes 
Lansing 
New  York 
New  York  Supreme  Court  (New  Series) 
Parker 
Selden  (5-10  New  York) 


20 


1 

66 

3 

2 

6 

4 

4 

9 

5 

7 

20 

3 

4 

7 

61 

14 

0 

6 


New  York — continued. 

NAME    OF    REPORT.  NO. 

Transcript  of  Appeals 

Wendell 

Wheeler's  Criminal  Cases 

North  Carolina. 
Busbee  (44  North  Carolina) 
Devereux  (12-15  North  Carolina)  . 
Devereux  and  Battle  (18-21  North  Ci 
Hawks  (8-11  North  Carolina)  . 
Haywood  (1-2  North  Carolina) 
Iredell  (23-35  North  Carolina) 
Jones  (46-53  North  Carolina) 
Martin  (1-3  North  Carolina)     . 
Murphey  (5-7  North  Carolina) 
North  Carolina  (63-74) . 
Phillips  (61  North  Carolina) 
Taylor  (3  North  Carolina) 

Ohio. 

Griswold  (14-19  Ohio)  . 

Hammond  (1-9  Ohio) 

McCook  (1  Ohio,  N.  S.) 

Ohio.  .... 

Ohio  (New  Series) 

Stanton  (11-13  Ohio) 

Wright  .  ,  .  . 


OF    VOLS. 

7 

26 

3 


Oregon. 


Oregon 


Pennsylvania, 
Addison  .  .  ,  . 

Ashmead 

Barr        ,  .  .  . 

Binney 

Browne  .... 
Pennsylvania 

Rawle     .... 
Sergeant  &  Rawle    . 
Watts     .  .  . 

Watts  &  Sergeant     . 
Wharton 
Yeates 

Ehode  Island. 
Rhode  Island 

South   Carolina. 
Bailey     .  .  .  . 

Bay   . 
Brevard  . 
Cheves 

Constitutional  Court 
Dudley 
Hill 

McCord 
McMullan 

Nott  and  McCord     . 
Rice 
Richardson  . 


REPORTS   REFERRED   TO. 


Vll 


South  Carolina — continued. 


NAME  OF  REPORT. 

Richardson  (New  Series) 

Riley 

Speer 

Strobhart 

Tennessee. 
Coldwell 
Cooke 
Head       . 
Heiskell 
Humphrey 
Martin  &  Yerger 
Meigs 
Overton 
Peck 
Sneed 
Swan 
Yerger 


Texas 


Texas 


United  States 
Baldwin  . 
Bissell 
Blatchford 
Bond 
Call 

Campbell 
Clifford   . 
Curtis 
Dillon     . 
Gal  li  son 
Hempstead 
Mason 
McAllister 
McLean 
Paine 
Peters 
Sawyer   . 
Story 
Sumner   . 
Wallace 
Wallace,  Jr. 
Washington  . 
Woodbury  &  Minot 
Woods 
Woolworth 


CiRCl 


NO.  OF  VOLS. 

5 

1 

2 


Court 


43 


1 
5 
13 
3 
6 
1 
2 
3 
2 
3 
1 
5 
1 
6 
3 
1 
3 
3 
3 
3 
8 
4 
3 
1 
1 


United  States  Circuit  and  District 
Courts. 

NAME  OF  REPORT. 

Abbott    . 
Deady 


NO.  OF  VOL?. 

2 


United  States  District  Court. 

Bee's  Admiralty 

Benedict       .... 

Crabbe    ..... 

Gilpin  .  . 

Lowell    .  .  .  .  ■  , 

Newberry's  Admiralty 

United  States  Supreme  Court. 

Cranch    ..... 
Dallas  .... 

Howard  ..... 
Peters  .... 

Wallace  ..... 
Wheaton       .... 


Vermont. 


Aiken 
Brayton 
D.  Chipman 
N.  Chipman 
Tyler      . 
Vermont 


Virginia. 


Grattan  . 

Hening  &  Munford  . 

Leigh      ... 

Munford 

Randolph 

Robinson 

Virginia  Cases    . 

West  Virginia. 
West  Virginia     . 


Wisconsin. 


Chandler 
Smith  (1-3  Wis.) 
Wisconsin  (3-39) 


9 

4 
34 
16 
33 
13 


3 
1 
3 
1 
3 
47 


26 
4 

13 
6 
6 
2 
3 


4 

2 

37 


A 

TABLE    OF   TITLES    AND    SUBJECTS, 

WITH  REFERENCES   TO  THE  PAGES  WHERE  THEY  ARE   FOUND. 


ABATEMENT,  PLEA  IN. 

1.  When  proper,  1. 
Pendency  of  indictment,  1. 
Omission  by  justice,  1. 
Misnomer,  1. 

Objections  to  grand  jury,  1. 
Exemptions  from  JU17  duty,  1. 

2.  Validity,  2. 
When  double,  2. 
UnnecesSLiry  averment,  2. 
Plea  insufficient,  2. 
Waiver,  2. 
Judgment,  2. 

ABDUCTION. 

What  constitutes,  2. 
How  regarded  in  the  several  States,  2,3. 
Indictment,  3. 
Verdict,  3. 

ABORTION. 

1.  Nature  of  the  offense,  3,  4. 
In  Maine  and  Massachusetts,  3. 
In  Vermont,  3,  4. 

In  New  York,  4. 

2.  Indictment,  4,  5. 
Averment  of  time  and  place,  4. 
Averment  of  means,  4. 
Unnecessary  averments,  4,  5. 

3.  Evidence,  5-7. 
Priiof  of  time,  5. 
Medicine  administered,  5. 
Prosecutidx  as  a  witness,  5,  6. 
Declarations  of  female,  6. 
Prosecutrix  to  be  corroborated.  G. 
Impeachment  of  prosecutrix,  6. 
Presumptions,  6,  7. 

Proof  in  defense,  7. 

4.  Verdict,  7,  8. 

Defendant  need  not  be  present,  7. 
Of  guilty,  when,  7, 
For  miinslaughter,  7. 
For  offense  against  person  not  named, 
7,8. 

ACCESSORY. 

1.  Who  drkmed,  8,  9. 
Distinction  as  to  guilt  or  innocence  of 

principal,  8,  !J. 
Encouraging  design,  9. 
B 


ACCESSORY— c«??i«mMe(Z. 

2.  Liability,  9. 
As  principal,  9. 

3.  Absence  op  liability,  9. 
Principal  not  in  general  liable  for  act 

of  agent,  9. 

Person  present  not  liable  for  not  pre- 
venting felony,  9. 

Person  absent  from  State  not  amenable 
to  punishment,  9. 

4.  Indictment,  9, 10. 

Of  accessory  as  principal,  9. 
What  to  contain,  9, 10. 

5.  Trial,  10,  11. 

May  be  with  or  without  principal,  10. 
Principal  to  be  first  convicted,  10,  11. 

6.  Evidence,  11. 

Proof  of  conviction  of  principal,  11. 

Threats  of  principal,  11. 

Under  indictment  charging  defendant 

as  principal,  11. 
Of  i^rincipal,  11. 

8te  Indictment. 

ACCOMPLICE. 

See  Accessory;   Evidence;   Par- 
don; Witness. 

ACQUITTAL. 

See  Former  acquittal  or  convic- 
tion; Verdict. 

ADJOURNMENT. 

See  Continuance. 

ADULTERY. 

1.  What  constitutes,  11-13. 
How  defined,  11,  12. 

By  whom  committed,  12. 

Where  husband  remains  absent,  12. 

Must  be  open  and  notorious,  12,  13. 

2.  Place  of  trial,  13. 

Improper  change  of  venue  not  ground 
of  reversal,  13. 
8.  Indictment,  13,  14. 

Parties,  13. 

Township  need  not  be  stated,  13. 

Certainty  required  in,  13. 

Averment  that  woman  is  not  wife,  13, 14. 
4.  Evidence,  14-16. 

Time,  14. 


TABLE   OF   TITLES   AND   SUBJECTS. 


ADULTERY— (-^^w^i/i  ued. 
]\rarriage,  14. 
Bunlen  of  proof,  14. 
Evidence  must  supijort  charge,  14,  15. 
Husband  not  a  competent  witness,  15. 
Admissions  and  presumptions,  15, 16. 
Proof    of    acts   subsequent    to   indict- 
ment, 16. 
Proof  of  divorce,  16. 

5.  Verdict,  16. 
Designation  of  time,  16. 
For  less  oftense,  16. 

6.  Judgment,  16. 

For  support  of  child,  16. 
See  Bigamy;  Incest. 

AFFRAY. 

1.  What  constitutes,  16, 17. 
What  is  meant  by,  16,  17. 
May  be  by  words.  17. 
Fighting  must  be  public,  17. 

2.  Indictment,  17. 

Must  specify  what  was  done,  17. 
Averment  of  place,  17. 

3.  Evidence,  17, 18. 

Proof  of  time  and  place,  17. 
Declarations,  17,  18. 

4.  Verdict,  18. 

Some  of  the  defendants  may  be  acquit- 
ted and  the  rest  convicted,  18. 
For  assault  and  battery,  18. 

See  Assault  and  battery  :  For- 
mer ACQUITTAL  OR  CONVIC- 
TION; Homicide. 


ALIBI. 


See  Evidence. 


AMENDMENT. 

Of  process,  18. 
ANIMALS. 

1.  Cruelty  to,  18,19. 
Nature  of  offense,  18. 
Indictment,  18. 
Evidence,  18, 19. 

2.  Rescuing,  19. 
Indictment,  19. 

APPEAL. 

By  State,  19. 
Jur'sdiction,  19. 
Objection  to  evidence,  19. 
Judgment,  19. 

See  Writ  of  error. 

ARREST. 

1.  Nature  and  power  of,  in  general, 

19,  20. 
What  deemed  an  arrest,  19,20. 
Law  governing,  20. 
Exemption  from,  20. 
Ground  of,  may  be  investigated,  20. 

2.  By  private  person,  20. 
Without  warrant,  20. 
Disposal  of  prisoner,  30. 
Bv  command  of  ofBcer,  20. 


XBKE^T—contintied. 
Must  give  notice,  20. 
3.  By  officer,  20-22. 
Without  warrant,  20,21. 
Right  to  break  open  doors,  21. 
How  arrest  should  be  made,  21. 
Notice  of  authority,  21. 
When  notice  need  not  be  given,  22, 
On  void  process,  22. 
Out  of  State,  22. 
Rearrest,  22. 

ARREST  OF  JUDGMENT. 


See  Judgment. 


ARSON. 


23. 


1.  What  constitutes. 
The  burning,  23.  ' 
Guilty  intent,  23. 

2.  Subject  of,  23-25. 
House  of  another,  23. 

What  deemed  a  dwelling-house,  23,  24. 
Burning  one's  own  house,  24. 
Tenant  setting  fire  to  house,  24,  25. 
By  setting  fire  to  adjoining  building,  25. 
Burning  jail,  25. 
Burning  school-house,  25. 
What  not  deemed  a  building,  25. 
Burning  barn,  25. 

3.  Indictment,  25-20. 
Averment  of  burning,  25,  26. 
Averment  of  time  and  place,  26. 
Charging  intent,  36,  27. 
Description  of  property  burned,  27,  28. 
Allegation  of  ownership  of  property,  28. 
Averment  of  value,  29. 
Conclusion,  29. 

4.  Evidence,  39-31. 
Property  burned,  29. 
Ownership  of  building,  29. 
Proof  of  tlie  burning,  29. 
Guilty  motive,  29,  30. 
Presumptions,  30,  31. 

5.  Verdict,  31. 

For    lower    degree  ,  of    offense     than 
charged,  31. 

ASSAULT  AND  BATTERY. 
1.  Simple,  32-47. 

(a)    What  constitutes,  32-37. 
Meaning  of  assault,  32. 
Must  be  violence,  32,  33. 
Accompanied  with  threats,  33,  34. 
Must  have  been  ability  to  injure,  34. 
Eflect  of  absence  of  intention,  34. 
Liability  of  infant,  34,  35. 
By  mutual  consent,  35. 
Inciting  an  assault,  35. 
By  direction  of  another,  35. 
By  husband  on  wife,  35,  36. 
By  parent,  36. 
By  teacher,  36. 
By  master,   36. 
By  officer,  36. 
In  resisting  officer,  36,  37. 
By  conductor,  37. 


TABLE   OF   TITLES   AND   SUBJECTS. 


Xt 


ASSAULT  AND  BA.TTmtY— continued 

(b)  Jmtifiiihle  vse  of  force,  37-39. 

In  ejecting  passenger  from  car,  37,  38. 
Defense  of  property,  38. 
Defense  of  person,  38,  39. 
Abusive  language,  39. 

(c)  Indictment,  39-42. 
Finding,  39. 
Venue,  39. 

Effect  of  omitting  to  state  time,  39. 
Description  of  person  injured,  39,  40. 
For  resisting  officer,  4^. 
Charging  offense,  40,  41. 
Immaterial  averments,  41. 
Averment  of  intent,  41,  42. 
Conclusion,  43. 

Not   abated    by   death   of  complain- 
ant, 43. 
id)  How  tried,  42. 
Under  joint  indictment,  43. 
Election  of  ofienses,  43. 

(e)  Evidence  for  prosecution,  42-45. 
Record,  43. 

Proof  of  time  and  place,  42,  43. 
Wife  may  testify  against  husband,  43. 
Proof  of  party  injured,  43. 
Weapon,  43. 

Character    of    weapon,    how    deter- 
mined, 43. 
Proof  of  act,  43,  44. 
Proof  of  intent,  44. 
Burden  of  proof,  44. 
Presumptions,  44,  45. 
What  need  not  be  proved,  45. 

(f)  Evidence  for  defense,  45-47. 
Where  person  assaulted  is  unknown, 

45. 
Self-defense,  45. 
Defense  of  property,  45. 
Character  of  prosecutor,  45. 
Character  of  defendant,  45. 
Wife  may  testify  for  husband,  45. 
Mitigating  circumstances,  46. 
Declarations  of  defendant,  46,  47. 

(g)  Verdict  and  jud'jment.  47. 

Under  plea  of  former  conviction,  47. 

Without  plea,  47. 

Where  there  are  two  indictments,  47. 

Conviction  in  case  of  several  defend- 
ants, 47. 

Verdict  for  part  of  offense   charged, 
47. 

Construction  of  verdict,  47. 

Compromise,  47. 
2.  Assault  with  intent  to  kill,  48-58. 
(a)    Whdt  conditutea,  48,  49. 

Need  not  be  wounding,  48. 

Act  must  be  adapted  to  design,  48. 

Weapon  need  not  have  been  deadly, 
48. 

What  intent  required,  48,  49. 

Need  not  be  malice  in  fact,  49. 

Meaning  of  assault  with  intent,  49. 

When  deemed  a  felony,  49. 
(J)  Indictment,  49-51. 


ASSAULT  AND  Bk.TTE.Wl— continued. 

Averment  of  acts  constituting  offeme,^.^^ 

Description  of  weapon,  49,  50. 

Description  of  person  injured,  50. 

Averment  of  malice,  50,  51. 

Charging  intent,  51. 

Immaterial  averments,  51. 
(c)  Evidence,  51-56. 

Proof  of  place,  51,  53. 

Person  injured,  52. 

Weapon,  52. 

Proof  of  intent,  53. 

Proof  of  character  of  assault,  53. 

Proof  of  malice,  53. 

Declarations  of  party  assaulted,  54. 

Declarations  of  defendant,  54. 

Declarations  of  co-defendant,  54. 

Presumptions,  55. 

Circumstances,  55. 

Affront  by  words  will  not  extenuate, 
55. 

Where  defendant  was  the  aggressor, 
55. 

Defense  of  property,  55,  56. 

Exercise  of  legal  right,  56. 

Antecedent  grudge,  56. 

Previous  assault,  50. 

Mutual  combat,  56. 

Wife  as  witness,  56. 
{d)   Verdict,  56-58. 

Form,  56,  57. 

Variant  from  charge,  57. 

On  one  of  two  counts,  57,  58. 

Amendment,  58. 

See  Affray.  For  assault  with  in- 
tent to  commit  rape,  see  Rape. 

ATTORNEY. 

Right  to  visit  jail,  58. 

Designation  by  court,  58. 

Buying  claim,  58. 

Removal,  58. 

As  to  privileged  communications  be- 
tween attorney  and  client,  see 
Evidence. 

AUTREFOIS     ACQUIT    AND     AUTRE- 
FOIS CONVICT. 

See  Former  acquittal  or  con- 
viction. 

BAIL  AND  RECOGNIZANCE. 

1.  Authority  to  admit  to  bail  or   to 

compel  a  recogniz.1nce,  59,  00. 
In  general,  59. 
By  courts  of  record,  59. 
By  justices  of  the  peace,  59,  60. 
By  U.  S.  commissioner,  60. 
Sureties  for  good  behavior,  60. 

2.  Bail  when  in  general  refused  or 

ALLOWED,    60-63. 

In  treason,  60. 
in  murder,  60,  01. 

Circumstances    of   homicide  to  be  in- 
quired into,  01. 
Illness  of  prisoner,  61. 


Xll 


TABLE   OF   TITLES  AND   SUBJECTS. 


BAIL  AND  RECOGNIZANCE— 0(?«ii«we(Z. 
In  cases  not  capital,  61,  63. 
For  omission  to  prosecute,  62. 
After  conviction,  02. 
Upon  tillowauce  of  writ  of  error,  63. 
Appeal  from  decision,  62,  63. 

3.  Proof  required  to  admit  to  bail, 

63. 
In  genera],  63. 
Testimony  at  inquest,  63. 
Affidavits  or  oral  testimony,  63. 

4.  Form  and  requisites   op    recogniz- 

ance. 63-66. 
At  common  law,  63. 
Hew  taken,  63. 
Date,  63. 

Commencement,  64. 
General  requisites,  64. 
Description  of  ofi'ense,  64. 
Name.  64. 
Condition,  64,  65. 
Amount,  65. 

Number  of  sureties,  65,  66. 
How  executed,  66. 
Approval,  06.  I 

Ameudment,  66. 

5.  Construction  and  validity,  66-68. 
Rule  of  construction,  66,  67. 
Sufficiency  of  complaint,  67. 

Taken  by  unauthorized  person,  67. 
Sufficiency  of  recital,  67. 
Entered  into  by  several,  67. 
Place  to  appear,  67. 
Force  and  eft'ect,  67. 

6.  Return  op  recognizance,  68. 
How  to  be  made,  68. 

What  to  be  returned,  68. 
To  be  filed,  68. 
Right  of  sureties,  68. 

7.  DiSCEARGE    OF    BAIL,    68,  69. 

In  general,  68. 

Failure  to  prosecute,  68. 

By  appearance  of  defendant,  68,  69. 

Unlavv'ful  ai'rest,  69. 

Arrest  on  other  cliarge,  69. 

Surrender  of  defendant,  69. 

8.  Forfeiture  op  recognizance,  69-73. 
When  to  be,  69. 

Calling  defendant,  69. 

Time  to  appear,  70. 

Neglecting  to  appear,  70. 

Failure  to  comply  with  judgment,  70. 

Entry,  71. 

Efiect,  71. 

Remission,  71. 

See  Bastardy. 
BARRATRY. 
Meaning  of,  71. 

Cannot  be  committed  by  negligence,  71. 
Intoxication  not  an  excuse,  71. 
BARRETRY. 

Who  deemed  a  barretor,  71, 

Justice  cf  the  peace  indictable  for,  71. 

What  indictment  should  contain,  71. 


BAKWETRY— continued. 
Bill  of  particulars,  71. 
Punishment,  73. 

j  BASTARDY. 

1.  The  complaint,  73,  73. 
I  By  whom  made  in  tiie  different  State8,73. 

Nature  of  the  proceedings,  73. 
Requisites  of  complaint,  72,  73. 
3.  Warrant,  73. 
How  issued,  73. 
Must  aver  the  time  of  the  child's  birth, 

73. 
How  far  evidence,  73. 

3.  Examination,  73. 
By  whom  had,  73. 

Defendant  need  not  be  arraigned,  73. 
Proceeding  when  barred,  73. 

4.  Indictment,  73,  74. 
Requirements  of,  in  different  States,  73, 

74. 

5.  Evidence,  74,  75. 
Testimony  of  prosecutrix,  74. 
Proof  of  birth  of  child,  74. 
Proof  of  non-access,  74. 
Presumption  as  to  paternity  of  child,  75. 
Admissions  of  defendant,  75. 
Impeachment  of  prosecutrix,  75. 
Proof  of  intercourse  of  jirosecutrix  with 

others,  75. 
Proof  of  efforts  to  produce  an  abortion, 

75. 
Proof  required  to  convict,  75. 

6.  Security,  75,  76. 
Nature  and  effect,  75,  76. 
How  dated,  76. 

7.  Settlement  op  prosecution,  76. 
When  the  parties  may  or  may  not  settle, 

76. 
Payment  of  fees  and  expenses,  76. 
Proceedings  not  abated  by  marriage  of 

prosecutrix,  76. 
Effect  of  t!ie  taking  by  defendant   of 

the  poor  debtor's  oath,  76. 
Order  of  maintenance  notwithstanding 

paidon,  76. 

8.  Concealing  death  of  bastard  child, 

76,  77. 
Child  must  have  been  born  alive,  76. 
Indictment  and  evidence,  77. 

BAWDY  HOUSE. 

See  Nuisance, 

BIGAMY. 

1.  Who  may  commit,  77. 

By  nephew.  77. 

By  emancijiated  slave,  77. 

In  case  of  infant,  77. 
3.   When  committed,  77,  78. 

In  case  of  divorce,  77,  78. 

In  case  of  absence  of  husband  or  wife,  78. 

Place  of  second  marriage,  78. 
3.  Indictment,  78,  79. 

Immaterial  averments,  78. 

Where  to  be  tried,  78. 


TABLE   OF   TITLES   AND   SUBJECTS. 


XIU 


BIGAMY — eontlrmed. 
4.  Evidence,  79-81. 

Marriage  must  be  proved,  79. 
License  and  certificate,  79,  80. 
Testimon}'   of  persons   present  at  cere- 
mony, 80. 
"Wife  as  witness,  80. 
Confession  of  defendant,  80,  81. 
Testimony  for  defense,  81. 

BILL  OF  EXCEPTIONS. 

1.  Nature  and  office,  81,  82. 
Meaning.  81. 

In  New  York.  81. 

Wiien  it  will  or  will  not  lie,  81,  82. 

Waiver,  82. 

2.  What  it  should  contain,  82. 
•    Must  set  out  the  evidence,  82. 

In  case  of  exceptions  to  charge  of  court. 

82. 
When  to  be  disregarded,  82. 

3.  Settlement.  83,  83. 

By  whom  made  in  New  York,  82,  83. 

4.  Effect,  83. 

What  brought  up,  83. 
AV'hat  entertained,  83. 
Presumption  in  favor  of  court  below.  83. 
Where  there  is  no  proof  of  venue.  83. 
See  Appeal;  Indictment;  Trial; 
Writ  of  error. 

BILL  OF  PARTICULARS. 

Is  in  the  discretion  of  the  court,  83. 
BLASPHEMY. 

At  common  law,  and  by  statute,  83. 
Indictment,  84. 
Evidence,  84. 

BOARDING  VESSEL. 

Constitutionality  and  construction  of  act 

of  Congress,  84. 
What  con.stitutes  the  offense,  84. 
Evidence  for  the  prosecution,  84. 
What  not  a  defense,  84. 

BREACH  OF  THE  PEACE. 
By  improper  language,  84. 
By  assaulting  another,  84. 
By  rapid  driving,  84. 
By  forcible  entry,  84. 

As  to  sureties  of  tlie  jvxice,  se<i  Bail 
and  recognizance. 

BRIBERY. 
Power  of  Congress  to  punish,  83. 
Venue,  85. 

Bribery  at  election,  85. 
Bribing  officer,  85. 
Offering  bribe,  85. 
Indictment,  85. 

BURGLARY. 

1.  What  constitutes,  85-89. 
Definiticm,  85. 

What  breaking  and  entering  is,  85.  80. 
Constructive  breaking,  87. 


BVRGLAUY— continued. 
May  be  in  day  time,  87. 
Must  be  a  lelonious  intent,  87. 
Intent  when  not  an  ingredient  of  offense, 

88. 
Building  in  which  it  may  be  committed, 

88,  89. 

2.  Indictment,  89-92. 
Averment  of  breaking,  89. 
Description  of  premises,  89,  90. 
Allegation  of  ownership  of  building,  90. 
Averment  of  the  time  of  breaking,  90^ 

91. 
Averment  of  intent,  91. 
Averment  of  steaHng,  91. 
Place  of  trial,  91,  92. 

3.  Evidence,  92-94. 
Proof  of  the  breaking,  92. 
Proof  of  time  and  place,  92. 
Proof  of  intent,  92. 

Proof  that  house  was  occupied,  93. 
Presumptions,  93. 
Possession  of  burglar's  tools,  94. 
Possession  of  stolen  property,  94. 
Proof  of  other  offense,  94, 

4.  Verdict,  95. 
Form,  95. 

In  case  of  larceny,  95. 

CARRYING  CONCEALED  WEAPONS. 

See  Concealed  weapons. 
CEMETERY. 

Desecration  of,  95. 
Removal  of  dead  bodies,  95. 
See  Disinterring  the  dead. 

CERTIORARI. 

1.  When  it  will  lie,  95,  96. 
Basis  of  application,  95,  96. 
When  proper,  96. 

When  demandable,  96. 

Under  the  statute  of  New  York,  96. 

2.  Form,  96,  97. 
In  general,  96. 

In  special  cases,  96,  97. 

3.  Service,  97. 

Upon  whom  made,  97. 

4.  Return,  97. 
Order  for,  97. 
Contents  of,  97. 
Correction  of,  97. 
Cannot  be  refused,  97. 

5.  Judgment,  97,  98. 

By  what  court  rendered,  97,  98. 
Ground  of,  98. 

CHALLENGE. 

See  Dueling  ;  Trial. 

CHEAT. 

See  False  pretenses. 

COMMITMENT. 

Jurisdiction  of  court,  98. 

Form  and  requisites  of  the  warrant,  98,  99. 


XIV 


TABLE   OF   TITLES  AISID   SUBJECTS. 


COMMON  DRUNKARD. 

Who  deemed,  99. 
Complaint,  99. 
Evidence,  99. 

COMPLAINT. 

Venue,  99. 

Allegation  of  time,  99. 
Necessary  averments,  100. 
Conclusion,  100. 
Execution,  100. 
Amendment,  100. 
Waiver  of  objection,  100. 

CONCEALED  WEA.PONS. 
When  deemed  deadly,  101. 
Complaint,  101. 
Indictment,  101. 
Evidence,  101. 

Construction  and  constitutionality  of  stat- 
utes, 101. 

CONSPIRACY. 

1.  What  cokstitutes,  101-104. 
How  defined,  101. 

What  essential  to,  102. 

By  new  party,  102. 

Need  not  be  overt  act,  102. 

Must  be  intent  to  injure,  102. 

What  deemed  at  common  law,  102, 103. 

Acts  which  amount  to,  103,  104. 

All  engaged  equally  liable,  104. 

Act  must  lelate  to  common  object,  104. 

When  merged  in  the  offense,  104. 

2.  Indictment,  104-107. 
Parties,  104. 

Description  of  offense,  104,  105. 
Averment  of  means  employed,  105, 106, 

107. 
Matters  of  inducement,  107. 

3.  Triai,,  107. 

Must  be  where  act  was  committed,  107. 
Cannot  be  separate,  107. 

4.  EvroENCE,  107-109. 

Must  sustain  charge,  107,  108. 
Proof  of  overt  acts,  108. 
Consummation  of  design,  108. 
Proof  of  other  acts,  108. 
Acts   and  declarations   of  confederate, 

108,  109. 
Proof  of  circumstances,  109. 

5.  Verdict  and  judgment,  109,  110. 
Form  of  judgment,  109,  110. 
Verdict  variant  from  charge,  110. 

CONTEMPT. 

Power  of  courts  to  punish,  110. 

What  constitutes,  110. 

Proceeding,  110,  111. 

Review  of  judgment,  punishing  for,  111. 

CONTINUANCE. 

1.    In  BEHALF  OF  PROSECUTION,  111. 

Ground  for,  111. 

Affidavit,  111. 

When  it  operates  as  an  acquittal.  111. 


CONTmUAT^CE— continued. 
2.  In  behalf  of  defendant,  111-114. 
In  general  discretionary  with  court.  111, 

112. 
Decision  subject  to  review,  112. 
What  defendant  required  to  show,  112, 

113. 
When  defendant  entitled  to  continuance, 

113. 
Absence  of  witnesses  to  character  not 

in  general  ground  for,  114. 
Eifect  of  admission  of  absent  testimony, 

114. 
Imposition  of  terms,  114. 

CONVICTION. 

See  Summary  conviction  ;  Verdict. 

CORONER'S  INQUEST. 

Nature  of,  at  common  law,  114. 
Holding  of  second  inquest,  114. 

CORPORATION. 

Right  under  charter,  114. 
Forfeiture  of  franchises,  114. 
Wlien  liable  to  indictment,  114. 
Judgment  against,  114. 

DEAD  BODY. 

Leaving  unburied  indictable,  115. 

See  Cemetery  :  Disinterring  the 
dead. 

DEADLY  WEAPONS. 

See  Concealed  weapons. 
DEMURRER. 

Judgment  on,  115. 
Admission  by,  115. 

DISINTERRING  THE  DEAD. 

Was  a  crime  at  common  law,  115. 
What  constitutes,  115. 
Indictment,   115. 
Evidence,  115. 

DISORDERLY  HOUSE. 

See  Nuisance. 
DISORDERLY  PERSON. 

Proof  of  marriage,  116. 

Defense,  116. 

Requiring  security,  116. 

Review  of  proceedings,  116. 

DISTURBING  RELIGIOUS  MEETING. 

See  Religious  meeting. 
DRUNKENNESS. 

See  Common  drunkard;   Intoxi- 
cation AS  A  defense. 

DUELING. 

Sending  challenge,  116,  117. 
Form  of  challenge,  117. 
Indictment,  117. 
Evidence,   117. 


TABLE   OF   TITLES   AND   SUBJECTS. 


XV 


DURESS. 

What  deemed,  117. 
How  deteriiiined,  117,  118. 
Order  from  superior   authority  does  not 
excuse,  118. 

ea\t:sdropptng. 

How  committed,  118. 
EMBEZZLEMENT. 

1.  What  constitutes,  118-120. 

There  need  not  have  been  demau(^  or 

denial,  118. 
By  person  mingling  funds  with  his  own, 

118. 
By  misappropriation  of  property,  119. 
By  fraudulent  conversion  of  propertv, 

119. 
Acts  which  do  not  amount  to,  119,  120. 
Who  not  deemed  servant  or  agent,  120. 

2.  Indictment,  120-122. 

Averment  of  relation  of  defendant  to 

party  injured,  120,  121. 
Description  of  property,  121. 
Averment  of  ownership,  121,  122. 
Charging  distinct  acts,  122. 

3.  Jurisdiction,  122. 
Of  State  courts,  122. 

4.  Evidence,  122,  123. 

Proof  of  delivery  of  property,  122. 
Must  be  proof  of  fraud,  122,  123. 
Need  not  be  jjroof  of  separate  acts,  123. 
Presumptions,  123. 
Employer  a  competent  witness,  123. 

5.  Verdict,  123. 
Against  several,  123. 

Under  indictment  for  embezzlement  and 

larceny,  123. 
Cannot  be  for  diftereut  offense,  123. 

EMBRACERY. 

At  common  law,  123. 
ENLISTMENT. 

Indictment,  123. 

ERROR. 

See  Writ  of  error. 

ESCAPE. 

At  common  law,  123,  124. 

What  constitutes,  124. 

Who  not  liable,  124. 

Rendering  aid  or  assistance,  124. 

What  not  deemed  aiding,  124. 

Indictment,    124,  125. 

Evidence,  125. 

Effect  on  the  rights  of  the  defendant,  125. 

ESTRAY. 

Taking  up,  indictable,  125. 
Indictment,  125,   126. 

EVIDENCE. 

1.  In  general,  120-129. 

When  material,  must  be  received,  120. 
To  be  derived  from  the  facts,  126,  127. 


EVIDENCE— co«^?«  ued. 

Must  be  responsive  to  the  issue,  127. 
Proof  of  defendant's  name,  127. 
Proof  of  name  of  party  injured,  127,  128. 
Middle  letter  of  name  not  in  general 

material,  128. 
Proof  of  identity  of  prisoner,  128. 
Immaterial    averments     need    not     be 

proved,  128. 
Precise  time  need  not  be  proved,  128. 
Proof  of  place  essential,  129. 

2.  Amount  op  proof  required  to  con- 

vict, 129,  130. 

Must  satisfy  the  jury  beyond  reasonable 
doubt,  129. 

Cleaning  of  reasonable  doubt,  129. 

When  negation  equivalent  to  affirma- 
tion, 129,  130. 

Testimony  partly  false,  how  regarded, 
130. 

3.  BmDEN    OF    PROOF,  130. 

When  on  prosecution,  130. 
When  with  defense,  130. 

4.  Documentary  evidence,  130-132. 
Record  to  be  produced,  130,  131. 
When  copy  of  record  competent,  131. 
Proof  of  record,  131. 
Proof  of  indictment,  131. 
Entries,  when  admissible,  131. 
Books  of  science,  131. 
Admission    of    map    in    discretion   of 

court,  132. 
Advertisements,  132. 
Letters,  132. 
Papers  of  insolvent,  132. 
Depositions,  132. 
Writing  partly  illegal,  132. 

5.  Written  instroments  how  proved, 
132-135. 

In  general,  132,  133. 

Proof  of  handwriting  by  witness,  133. 

Proof  of  handwriting  by  comparison, 
133. 

Standard  of  comparison  how  determin- 
ed, 134. 

Proof  of  alterations,  134. 

Proof  of  contents  of  writing,  134,  135. 

6.  Proof   of  testimony  given  on  for- 
mer trial,  135. 

Waiver  by  defendant,  135. 

Proof  of  testimony  given  before  grand 

jury,  135. 
Proof  of  testimony  of  deceased  witness, 

135. 
Proof  of  testimony  of  living  witness, 

135. 

7.  Admissions  and  declarations, 135-140. 
Declarations  of  party  injured  not  com- 
petent, 135. 

Acts  and  declarations  of  accused,  135, 

136. 
Distinction  as  to  time,  130. 
To  be  confined  to  subject  of  inquiry,  136. 
Must  have  been  made  understand ingly, 

136. 


XVI 


TABLE   or   TITLES  AlS^D   SUBJECTS. 


EVIDENCE  —continued. 

By  hiisliand  or  wile,  136. 

Proof  of  conversations,  186,  137. 

Declarations  of    defendant  in  his  own 
beljalf,  137,  138. 

Declarations  of  co-defendant,  138,  189. 

Declarations  of  third  person,  139. 

Tacit  admission  of  defendant,  139. 

Tclegiaphic  messages,  140. 

Admissibility  of  jjroof  improperly  ob- 
tained, 140. 

Order  of  proof,  140, 

Evidence  in  rebuttal,  140. 

Declarations  do  not  bind  prosecution, 
140. 
8.   COMFESSIOKS,  140-149. 

Capacity  to  make,  140. 

Manner  V.  140,  141. 

Subject  of,  141. 

General  grounds  of  admission  or  exclu- 
sion, 141. 

By  witness,  141,  142. 

By  person  under  arrest,  142. 

By  intoxicated  person,  142. 

By  prisoner  of  his  own  accord,  142. 

Obtained  by  artifice,  142. 

In  answ^er  to  question,  142,  143. 

Obtained  bv  promise  of  advantage,  143, 
144. 

Confession  obtained  by  persuasion,  ad- 
missible, 144. 

Justifiable  inducements,  144,  145. 

Improper  inducements,  145,  146. 

Made  through  fear,  146. 

Obtained  by  threats,  146. 

Threatening  circumstances  not  ground 
of  exclusion,  146. 

Confession  obtained  wliile  the  jjrisoner 
is  tied,  147. 

Confession  admissible  notwithstanding 
improper  influence,  147. 

Facts  obtained  by  confession  whicli  is 

inadmissible,  147,  148. 
Confession  of  co-defendant,  148. 

Admissibility  of,  to  be  determined  by 

the  court,  148. 
Confession  when  presumed  to  have  been 

improperly  obtained,  148. 
Confession  how  proved,  148,  149. 
Must  be  corroborated,  140. 
"Weight  of  confession,  149. 
Waiver  of  objection,  149. 
Reversal  of  decision  admitting  confes- 
sion, 149. 

9.  Privileged  commtinicatioss,  150, 
Attorney  and  client,  150. 
Physician,  150. 

Clergyman,  150. 
Husband  and  wafe,  150. 
Telegraph  operatoi-,  150. 

10.  Character,  150,  151. 

Proof  of,  how-  regarded,  150,  151. 
Proof  confined  to  the  time  previous  to 

the  commission  of  the  oftense,  151. 
Proof  restricted  to  character  in  issue,  151. 


EVIDENCE— cor?  /fm  uecl. 

Eft'ect  of  failure  to  jMove,  151. 

11.  Presumptive  evidence,  152-157. 
Capacity  for  crime,  152. 

General  presumption  as  to  guilt,  152. 

Concealment,  152. 

Giving  false  account,  152. 

Trying  to  escape.  152. 

Destruction  of  evidence,  152. 

Falsehood  or  silence  of  defendant,  152. 

Failure  to  produce  evidence  in  explana- 
tion, 153,  154. 

Neglect  to  make  special  defense,  154. 

Defendant  not  to  testify  in  his  own  be- 
half, 154. 

Conduct  of  defendant,  154,  155. 

Condition  of  clothes,  155. 

Proof  of  motive,  155. 

Guilty  knowledge  and  intent,  155. 

Proof  of  malice,  155,  156. 

Proof  of  marriage,  156. 

Coercion  of  wife,  156 

Proof  of  independent  facts  relied  on  as 
a  presumption  of  guilt,  156. 

General  presumptions,  156,  157. 

Presumption  from  relationship,  157. 

Non-existence  of  facts  on  the  record, 157. 

Rebuttal  of  presumj)tions,  157. 

12.  Proof  op  other  offense,  157,  158. 
Not  in  general  admissible,  157,  158. 
May  be  received  when  it  tends  to  prove 

offense  charged,  158. 
Proof  that  oflense  is  difiierent  from  that 
proved  before  grand  jury,  158. 

13.  Testimony  of  accomplice,  158-160. 
When  admissible,  158. 
Conviction  may  be  upon  uncorroborated 

testimony  of  accomjslice,  158,  159. 
Ought  in  general   to    be  corroborated, 

159. 
What  deemed  a  corroboration,  159. 
When  partly  false  must  be  corroborated, 

159. 
Who  not  deemed  an  accomplice,159, 160. 

14.  Testimony  of  experts,  160-162. 
When  admissible,  160. 
Must  be  based  on  facts,  160. 
Opinion  as  to  cause  of  death,  160. 
Opinion  as  to  instrument,  161. 
Testimony  on  the  question  of  insanity, 

161,  162. 
Mav  be  interrogated  to  test  their  skill, 

162. 
Testimony    given    through   interpreter, 

162,  163. 

15.  Opinions  of  witnesses  who  are  not 
experts,  163,  164. 

Indistinct  recollection,  163. 

Opinion  as  to  defendant's  guilt  not  ad- 
missible, 163. 

On  questions  of  common  knowledge,  163» 

As  to  age  of  person,  163. 

On  the  question  of  health,  163. 

As  to  declarations  of  the  defendant,  163, 
164. 


TABLE    OF   TITLES  A2sD   SUBJECTS. 


XVU 


EVIDENCE— w«  ifi/i  ued. 

Opinion  as  to  defendant's  intention, not 
admissible,  164. 

Speculation  or  conjecture  not  admissi- 
ble, 164. 

Opinion  relative  t®  tlie  sanity  of  the 
prisoner,  164. 

Opinion  as  to  intoxication  of  defendant, 
164,  165. 

16.  Proof  op  alibi,  165,  166. 
Nature  of,  165. 

Burden  of  proof,  165, 

What  requii'ed  to  establish,  165. 

Proof  need  not  be  exact  as  to  time,  165, 

166. 
Evidence  to  disprove,  166. 
Effect  of  failure  to  prove,  166. 

17.  Evidence  to  discredit  or  sustain 

WITNESS,   166-170. 

Improper  conduct  of  witness,  166. 
Rule  as  to  facts  collateral  to  the  issue, 

166,  167. 
Rule  as  to  contradiction  by  party  of  his 

own  witness,  167. 
Failure  to  testify  before  magistrate  not 

to  be  regarded,  167. 
Discrediting  written  statement,  167,168. 
Contradictory  acts  and  declarations,  168. 
Imi^eachment  of  character,  168,  169. 
Prejudice  of  witness  against  prisoner, 

109. 
Testimony  to  sustain  witness,  169,  170. 
Proof  of  good  character  of  witness,  170. 
For  eiidence  in  special  cases,  see  the 
titles  of  the  different  offences. 

EXAMINATION  OF  PARTY  ARRESTED. 

Proceedings  on,  171. 
EXCEPTIONS. 

See  Bill  op  exceptions. 
EXPERTS. 

See  Evidence. 
EXTORTION. 

1.  What  constitutes,  171,  172. 
At  common  law,  171. 

When  committed,  171. 

Must  l>o  a  corrupt  intent,  171. 

When   payment  voluntary,  0ifeu;^e   noL 

committed,  171,  172. 
Unconstitutionality  of  statutes,  172. 

2.  Indictment,  172. 
What  to  contain,  172. 

3.  Evidence,  172. 

Proof  of  existence  and  delivery  of  writ, 

1  ^^2 
Proof  of  time,  172. 
Proof  of  amount,  172. 
Impeachment  of  officer's  return,  172. 
See  Threatening   to   accuse   of 

CRIME. 

EXTRADITION. 

See  FcorTiVEs  from  justice. 


FALSE  IMPRISONMENT. 

What  deemed,  172. 
Indictment,  173. 

FALSE  PRETENSES. 

1.  What  constitutes,  173-180. 
^lust  be  likely  to  deceive,  173. 
Is  not  committed  where  party  has  means 

of  information,  174. 
Not  committed  by  mere  falsehood,  174. 
Must   have   been  part  of   inducement, 

174,  175. 
Must  relate  to  past  event,  175. 
Property  must  have  passed,  175,  176. 
Property  must   have   been   parted  with 

for  honest  purpose,  176. 
Intention  to  restore  the  property  not  a 

defense,  176. 
False  statement  as  to  ownership  of  prop- 
erty, 176,  177. 
In  purchase  or  sale  of  goods,  177. 
In  payment  of  money,  177. 
Inducing  person  to  sign  a  note,  177. 
Between  creditor  and  del)tor,  177,  178. 
Under  the  statutes  of  New  York,  178. 
Under  the  statutes   of  Massachusetts, 

178,  179. 
In  several  other  States,  179. 
Under  acts  of  Congress,  179. 
Where  the  money  was  in  custody  of  a 

bailee,  179. 
By  one  of  several,  179. 
Otfense,  when  completed,  179,  180. 

2.  Affidavit  for  arrest,  180. 
What  to  contain,  180. 

3.  Indictment,  180-185. 
Must  charge  that  the   property  was  ob- 
tained by  means  of  the  representa- 
tions, 180. 

Should   set   forth  sale  or  exchange  of 
property,  180,  181. 

For  removing  and  concealing  property, 
181. 

For  obtaining   signature   to  written  in- 
strument, 181. 

Charging  bankrujjt,  181. 

Must  set  out  the  pretenses,  181, 182,  183. 

Averment  of  intent,  183. 

Description  of  property,  183,  184. 

Averment  of  ownership,  184. 

Allegation  of  value,  184,  185. 

Charging  several,  185. 

^lust  negative  truth  of  pretenses,  185. 

SufRciency   of  indictment,  question    of 
law,  185. 

Place  of  trial,  185. 

4.  Evidence,  185-189. 
Burden  of  proof,  185. 
Best  evidence  must  be  produced, 185,1 86. 
All  of  the  pretenses  need  not  be  proved, 

186. 
Variance  as  to  name  of  parly  injured, 

186. 
Proof  as  to  amount  falsely  represented, 

186,  187. 


XVIU 


TABLE   OF   TITLES   AND   SUBJECTS. 


FALSE  PRETENSES— w»^??i(/eJ. 
Proof  as  to  propertj^,  187. 
Ivcprcscntation  as  to  indebtedness,  187. 
AVherc    goods   are    obtained    from   an 

agent,  187. 
Proof  of  credit,  187,  18§. 
Proof  of  guilty  knowledge  and  intent, 

188,  18<J. 
Testimony  for  the  defense,  189. 
Testimony  to  impeach  witness,  189. 
Pretense,  question  for  jury,  189. 

FELONY. 

What  deemed,  189,  190. 

See  the  titles  of  the  several  offenses. 

PINE. 

When  it  will  go  to  the  State,  190. 

FIRE  ARMS. 

Careless  use  of,  190. 

See  CONCEAXED  WEAPONS. 

FISHERY. 

Town  no  right  in,  190. 
Unlawful  taking  of  fish,  190. 
Complaint,  190. 

FORCIBLE  ENTRY  AND  DETAINER. 

1.  What  constitutes,  190,  191. 
When  entry  deemed  forcible,  190,  191. 
Detainer,  when  forcible,  191. 

2.  Proceedings.  191,  193. 
Nature,  191,  193. 

Who  may  maintain,  193. 
Against  whom  they  will  lie,  192. 

3.  Complaint,  193. 

What  it  must  contain,  193. 
Verification,  193. 

Objection,  how  and  where  made,  193. 
Waiver  of  objection,  193. 

4.  Indictment,  193,  194. 
At  common  law,  193. 
Averment  of  title,  193. 
Description  of  premises,  193,  194. 
Traverse,  194. 

5.  Evidence,  194. 

As  to  premises,  194. 
Proof  of  possession,  194. 
Proof  of  entry,  194. 
Injured  party  as  witness,  194. 

6.  Trial,  194,  195. 

Right  of  defendant  on,  194. 
Defendant  to  be  notified  of  inquisition, 

194. 
Inquisition  may  be  dated  in  figures,  194. 
What  inquisition  should  contain,  194. 
Restitution,  194. 
Damages,  195. 
Certiorari,  195. 

FORCIBLE  TRESPASS. 
IIow  committed,  195. 
When  indictable,  195. 
Indictment  and  evidence,  195. 
See  Trespass. 


FORGERY  AND   COUNTERFEITING. 

1.  What  constitutes,  195-198. 
How  defined,  195,  196. 

Acts  which  are  deemed,  196,  197. 

The  uttering,  197.- 

False  instrument  need  not  have  been 
received  as  genuine,  197. 

Fraudulent  intent,  197,  198. 

May  be  committed  by  agent,  198. 

Must  be  in  the  name  of  some  one  in  ex- 
istence, 198. 

By  several  acts,  198. 

2.  What  may  be  the  subject  of,  198-202. 
Must  appear  to  be  the  act  of  another,  198. 
Must  be  calculated  to  injure,  198,  199. 
Need  not  be  such  as  that,  if  genuine,  it 

would  be  binding,  199. 

Must  be  likely  to  deceive,  199,  200. 

Must  be  such  that  it  would  have  been 
good  if  genuine,  200. 

Forgery  of  instrument  having  no  valid- 
ity, 200. 

Printed  instrument,  201. 

Instrument  without  address,  201. 

Revenue  stamp,  201. 

Writing  made  on  Sunday.  201. 

Deed  of  laud  in  another  State,  201. 

Instrument  for  counterfeiting  coin,  301. 

Note  or  order,  201,  202. 

Indorsements.  203. 

3.  Indictment,  202-211. 

Must  show  the  forgery  of  a  valid  in- 
strument, 202,  203. 

Need  not  allege  validity  of  instrument, 
203. 

Forged  instrument  need  not  be  named, 
203. 

Instrument  should  be  set  out,  203,  204. 

Where  forged  instrument  is  in  foreign 
language,  204. 

Charging  the  forgery  of  note,  204. 

For  forgery  of  indorsement  on  note,  204. 

Charging  the  forgeiy  of  a  bond,  deed 
or  mortgage,  204. 

Description   of    counterfeit  bank   bill, 

204,  205. 

Existence  of  bank  need  not  be  alleged, 

205. 
lucorjDoration  of  bank  must  be  averred, 

205,  206. 

Charging  non-existence  of  bank,  206. 

Description  of  counterfeit  coin,  206. 

Description  of  bank  check,  206. 

Description  of  order  for  payment  of 
money,  207. 

Charging  the  forgery  of  a  county  war- 
rant, 207. 

Information  for  uttering  forged  power 
of  attorney,  207. 

Description  of  party  injured,  207,  208. 

Averment  of  time,  208. 

Charging  guilty  knowledge  and  intent, 
208,  209. 

Descriptive  averment,  209. 

Immaterial  averments,  209,  210. 


TABLE   OF   TITLES   AND   SUBJECTS. 


XIX 


FORGERY  AND  COUNTERFEIT.— ra?!f.r7. 
Charijing  several  acts,  310. 
Insufficieut  or  improper  averments,  210, 

211 
Conclusion,  211. 

4.  Place  of  trial,  211,  212. 

For  counterfeiting  U.  S.  coin,  211. 
Where  the  forgery  is  in  one  county,  and 

the  uttering  in  another  county,  211, 

212. 

5.  Evidence,  212-222. 

Party  injured  may  be  a  witness,  212. 

Proof  must  support  charge,  212,  213. 

Proof  of  part  of  charge  sufficient,  213. 

A  trifling  variance  not  regarded,  213, 
214. 

Must  be  confined  to  the  issue,  214. 

Instrument  must  be  produced  or  its  ab- 
sence accounted  for,  214,  215. 

Proof  of  existence  of  bank,  215. 

Name  of  bank  and  of  its  president,  215. 

Proof  of  false  character  of  bank  bills, 
215,  216. 

Proof  of  handwriting  in  general,  216. 

Comparison  of  hands,  216,  217. 

Proof  of  contents  of  writing,  217. 

Name  of  party  injured,  217. 

Proof  of  attempt  to  pass  forged  instru- 
ment made  through  agent,  217,  218. 

Declarations  of  party  injured,  218. 

Acts  and  declarations  of  defendant,  218. 

Presumption  as  to  bank,  218. 

Presumption  from  conduct  of  defend- 
ant, 218,  219. 

Presumption  from  possession,  219,  220. 

Presumption  as  to  place,  220. 

Bad  character  of  prisoner,  220. 

Proof  of  guilty  knowledge  and  intent, 
220,  221,  222. 

Intoxication  of  defendant,  223. 

Forged  instrument  to  be  submitted  to 
jury,  322. 

6.  Verdict,  223. 

Need  not  negative  mitigating  circum- 
stance, 223. 
When  bad  for  uncertainty,  223. 

FORMER    ACQUITTAL     OR     CONVIC- 
TION. 

1.  General  principles,  223,  224, 
Rights  of  prisoner,  223. 

What  required  to  constitute  a  bar,   323. 
Pendency  of  second  indictment,  223. 
Demurrer  to  j)lea  to  jurisdiction,  223. 
Impaneling  jury  without   arraignment, 

223,  234. 
Where  the  offense  is  against   separate 

jurisdictions,  224. 

2.  Former  acquittal,  224-227. 
Discharge  by  magistrate,  224. 
Quashing  indictment,  224. 
Suspension  of  trial,  224. 
Entry  of  nolle  prosequi,  224. 
Discharge  of  jury,  224. 
Separation  of  jury,  224. 


FORMER  ACQUITT.   OR  COlHY.—confd. 
Acquittal  through  error  of  court,  224, 

225. 
Effect  of  judgment  that  ofl'cnse  is  not 

punishable,  225. 
In  case  of  variance,  225. 
Acquittal  of  co-defendant,  225. 
Acquittal  of  joint  otiense,  325. 
Acquittal  on  some  of  several  counts,  325. 
Acquittal   in   case  of   distinct  offenses, 

225,  226. 
In  case  of  larceny,  220. 
In  case  of  forgery,  226,  237. 
In  case  of  seduction,  227. 

3.  Former  conviction,  227-231. 
Where  the  proceedings  were  illegal,  227. 
Conviction  ol>tained  by  fraud,  227. 
Improper  dismissal  of  indictment,  338. 
Insufficient  verdict,  338. 

Arrest  of  judgment,  238. 

Improper  reversal  of  judgment,  228. 

Where  there  are  several  indictments, 
228. 

Must  have  been  for  same  offense,  228, 
229. 

Conviction  of  lesser  offense,  229. 

Where  the  same  act  constitutes  distinct 
offenses,  229,  230. 

Need  not  have  been  a  judgment,  230. 

Where  the  verdict  is  improper  or  insuf- 
ficient, 331. 

4.  Plea,  231. 

At  common  law,  331. 
What  to  contain,  331. 
Demurrer  to,  231. 
Trial,  231. 

5.  Evidence,  231,  232. 
Burden  of  proof,  331. 

Weight   and   effect   of   previous  judg- 
ment, 333. 
Oral  testimony,  333. 

FORNICATION. 

See  ADLTiTERY ;  Bastardy  ;  Rape  ; 
Seduction. 

FRAUD. 

See  False  Pretenses. 

FUGITIVES  FROM  JUSTICE. 

1.  From  foreign  country,  232-234. 
Who  is,  232. 

"  Right  to  demand  surrender,  233. 

Extradition  treaties,  332. 

Jurisdiction  in  proceedings  for  extradi- 
tion, 232,  233. 

Autliority  not  to  be  exercised  by  State, 
233. 

What  necessary  to  give  jurisdiction,  233. 

Complaint  and  warrant,  233. 

Evidence,  233. 

Adjournment,   234. 

Review  of  decision,  234. 

2.  From  othkr  State,  234,  335. 
Who  deemed,  234. 

Construction  of  U.  S.  Constitution,  234. 


:sx 


TABLE   OF   TITLES   A^D   SUBJECTS. 


FUGITIVES  FROM    JVSTICE— continued 
Need  uot  have  been  requisition,  2'i'A. 
Arrest  after  letting  to  bail,  234. 
Must  be  charge  pending,  234,  235. 
Evidence  required  for  issuing  warrant. 

235. 
Warrant;  Review;  Stay  of  proceedin<;s. 

335. 
Reward,  235. 

See  Habeas  corpus. 
GAMING. 

1.  What  constitutes,  235-241. 
In  general,  235,  230. 

By  playing  once,  236. 

Setting  up  table,  236,  237. 

Betting,  237,  238. 

Inciting  others  to  bet,   238. 

Horse  racing,  238. 

What  not  deemed  gaming.  238. 

Offense  with  reference  to  place,  238,239, 

240. 
What  uot  deemed  a  public  place,  240, 

241. 
Power  and  duty  of  grand  jury,  241. 
Construction  of  statutes,  241. 

2.  Indictment,  241-244. 
Parties,  241,  242. 
Description  of  game,  242. 
Averment  of  keeping  house  for  gaming, 

242,  243. 

Averment  of  betting,  243. 

Time  need  not  be  charged  with   partic- 
ularity, 243. 

Averment  of  place,  243,  244. 

Charging  several  acts,  244. 

3.  Evidence,  344-246. 
Bill  of  particulars,  244. 
Proof  of  time  and  place,  244. 
Proof  of  betting,  244,  245. 

Proof  as  to  the  persons  |)laying,  245. 

Proof  of  game  played,  245,  246. 

Proof  as  to  the  money  won  or  lost,  246. 

GRAND  JURY. 

How  constituted,  246. 

Who  may  be  a  grand  juror,  246. 

Summoning,  246,  247. 

Proof  of  organization,  247. 

Two  grand  juries   in   same  county    at 

same  time,  247. 
Amendment  of  panel.  247. 
Objecting  to,  247,  248. 
How  sworn,  248. 
Power  and  duty,  248. 
Testimony  before,  348. 
Disclosing  testimony,  248. 
Discharge  of  grand  jurors,  248,  249. 
See  Indictment  ;  Trial. 

HABEAS  CORPUS. 

When  demandable  as  a  right.  249. 
When  not  proper  remedy.  249. 
Application  for,   249,  250. 
Notice  of  petition,  250. 


I  HABEAS  COBTTJS—cotiHnued. 

Proceedings   in    U.  S.  Supreme  Court, 

250. 
Proceedings   in    U.    S.    Circuit    Court, 

250. 
Jurisdiction  of  State  court  where  party 

is  held  by  Federal  authority,  250,251. 
Where  pany  is  detained    under    State 

process,  251. 
When  granted,  251. 
When  refused,  251,  252. 
Form,  252. 

Service,  return,  and  rule  to  aj^pear,  353. 
Certiorari  for  removal,  253. 
Duty  of  court  to  inquire  into  legality  of 

detention,  252. 
Nature  and  extent  of  inquiry,  252,  353. 
AVhen  evidence  must  be  produced,  353. 
Evidence  for  prisoner,  353. 
Evidence  as  to  legality  of  detention,  353. 
Discharge  of  prisoner,  353. 
Effect  of  decision,  253,  354. 

HAWKERS  AND  PEDDLERS. 

See  Peddlers. 
HOMICIDE. 
1.  Murder,  254-305. 

(a)  What  constitutes,  354-264. 

Definition  of  murder,  254. 

May  be  in  heat  of  passion,  254,  255. 

Intoxication  no  defense,  255. 

Need  uot  be  enmity,  255. 

May  be  committed  by  infant,  255. 

Must  be  intent  to  kill,  255. 

Intent  to  kill,  may  be  formed  on  the 
instant,  255,  256. 

Degree  of  offense  determined  by  in- 
tent, 257. 

Murder  l)y  poisoning,  357. 

In  riot  or  atiray,  257. 

Bv  engaging  another  in  a  fight,  357, 
'258. 

In  mutual  combat,  358. 

Bv  third  person  interfering  in  fight, 
"259. 

In  resisting  officer,  359. 

In  resisting  trespass,  359,  360. 

In  case  of  adultery,  360. 

While  committing  other  offense,  260, 
361. 

By  several  in  prosecution  of  common 
design,  261,  262. 

By  acts  regardless  of  life,  363,   368. 

By  cruel  treatment,  363. 

By  advising  suicide.   363,  264. 

Death  from  unskillful  treatment,  264. 
(&)  Indictment,  365-269. 

Venue,  265. 

Averment  of  time,  265. 

Averment  of  place,  2S5. 

Averment  of  means  emploved,  265, 
366. 

Name  of  deceased,  266,  267. 

Statement  as  to  location  of  wound,267. 


TABLE   OF   TITLES   AND   SUBJECTS. 


XXI 


ROMIGID  E—co}iti>med. 

Description  of  wound,  267. 

Must  show  that  party  died  of  the  in- 
jury, 267,  268. 

Averment  of  intent,  268,  269. 

Averment  of  premeditation,  269. 

Unnecessary  averments,  26l». 

Plea  to  indictment,  269. 

Trial  of  plea,  269. 
(c)  Evidence  in  general,  269-276. 

Right  of  prosecution  as  to  introduc- 
tion of  evidence,  269. 

Person  killed,  269,  270. 

Proof  of  cw^MS  delicti,  270,  271. 

Weapon  employed,  271,  272. 

Mode  of  violence,  272. 

Proof  of  time  and  place,  272,  273. 

Opinions  as  to  cause  of  death,  273. 

Opinion  on  question  of  insanitv,  273. 

Proof  of  malice,  273,  274. 

Proof  of  premeditation,  274,  275. 

Intoxication  of  accused,  275. 

Res  gestoR.  275,  276. 

Extenuating  circumstances,  276. 
{d)  Presumptio-iis,  276-283. 

What  implied  from  the  killing,  276, 
277. 

Possession  or  use  of  deadly  weapon, 
277,  278. 

Feebleness  of  person  killed,  279. 

Footprints,  279. 

Spots  of  blood,  279. 

Anonymous  letter,  279. 

Ill  feeling  between  the  parties,279,280. 

Presumption  from  threat,  280. 

Alienation  of  affection,  280. 

Adulterous  intercourse,  280.  281. 

Outcries  of  person  killed,  281. 

Conduct  and  situation  of  defendant, 
281. 

Silence  of  prisoner,  281. 

Appearance  of  defendant,  281,  282. 

Escape  of  defendant,  282. 

Handwriting  of  prisoner,  282. 

Possession  of  money  by  person  killed, 
282. 

Commission  Ijy  defendant  of   other 
offense,  283. 

Suicide  of  ])erson  killed,  282. 

Demeanor  of  deceased,  282. 

Presumptions  in  favor  of  defense,  282, 
283. 

Presumption  from  record,  283. 
{e)  Admissions  and    declarations  of  de- 
fendant, 283-287. 

In  general,  283,  284. 

Conversation    between    prisoner  and 
deceased,  284. 

Threats  by  defendant,  284. 

Testimony  l)efore  coroner,  284,  285. 

Testimony  before  magistrate,  285. 

Admissions  in  affidavit,  285. 

Confessions,  285,  286. 

Acts  and  declarations  of  defendant  in 
his  own  behalf,  286,  287. 


llOmCID'E—continved. 

Declaration  of  third  person  in  defend- 
ant's favor,  287. 
(/)  Admissions  and  declarations  of  co-de- 
fendant, 287,  288. 

Statements  in  relation  to  occurrence, 
287. 

Threats  by  one  of  several  defendants, 
287. 

Acts  and  declarations  by  husband  or 
wife,   287,  288. 

Declarations  of  witness,  288. 

Record  of  conviction  or  acquittal,  288. 
ig)  Declarations  of  person  hilled,  288-292. 

Complaint,  288. 

Statement  of  cause  of  injury, 288, 289. 

Declarations  of  deceased  as  to  his  in- 
tentions, 289,  290. 

Must  have  come  to  defendant's  knowl- 
edge, 290. 

Threats  of  deceased,  290,  291. 

In  case  of  conspiracy,  291. 

Must  have  been  overt  act,  291. 

Proof  of  declarations  in  corroboration 
or  rebuttal,  292. 

How  to  be  regarded  by  jury,  292. 
(A)  Dying  declarations,  292-298. 

General  grounds  of  admissibility,  292, 
293. 

Substance  of  declaration  suflRcient,293. 

Opinions  not  admissible,  293,  294. 

Who  competent  to  make,  294. 

Must  have  been  made  in  the  belief  of 
apiifoaching  death,  294,  295,  296. 

Declarations  of  husband,  296. 

Declarations  of  other  person  killed  at 
the  same  time,  296. 

Declarations  of  co-defendant,  296. 

How  taken,  29t). 

Admissibility    of,    how    determined, 
296,  297. 

How  proved,  297. 

How  discredited,  297,  298, 
(/)  Character  of  person  lilled,  298,  299. 

Prosecution'not  permitted  to  show, 
298. 

Cannot  in  general,  be  proved  by  the 
defense,  298. 

When  defendant  may  show,  298. 

What  may  be  proved,  298,  299. 
(j)  Character  of  de.fendant,  299,  300. 

Defendant  not  obliged  to  prove,  299. 

When  admissible,  299. 

By  whom  shbwn,  299. 

Proof    to    be    confined     to     offense 
charged,   299. 

Eifect  of    proof    of    good  character, 
299,  300. 
{Tc)  Burden  of  proof,  300-302. 

When  on  prisoner,  300. 

Rule  in  different  States,  300,  301,  302. 
(I)   Weight  and  svffinencT/  of  proof,  302. 

What  requireci  to  convict,  302. 

Disadvantage  of    circumstantial  evi- 
dence, 302. 


XXll 


TABLE   OF   TITLES   AND   SUBJECTS. 


ILOMlCTDE—con'inued. 

(m)   Charge  of  court,  302,  303. 

Duty  of  court,  303,  303. 

Withdr;nvinw  question  from  iury,  303. 
(«)    Verdict,  303-305. 

May  be  general,  303. 

May  be  for  less  offense  than  charged, 
303,  304. 

Must  find  degree,  304. 

Prisoner  must  be  present,  304,  305. 

Consent  of  prisoner,  305, 

Separation  of  jury,  305. 

Amendment,  305. 

Doubt  that  will  justify  acquittal,  305. 
(o)  Sentence,  305. 

Interrogating  prisoner,  305. 

In  case  of  escape,  305. 

How  satisfied,  305. 

2.  Maj^slaughter,  305-314. 
(«)    What  constitutes,  305-311. 

Meaning  and  characteristics,  305,  806. 
From  sudden  passion,  307. 
In  mutual  combat,  307,  808,  309. 
By  third  person  interfering  in  fight, 

309. 
Upon  provocation,   309. 
In  resisting  unlawful  arrest,  809,  810. 
In  resisting  trespass,  310. 
By  cruelty,  310. 
By  killing  unborn  child,  310. 
Through  ignorance,  310. 
From  omission,  310. 
Through  recklessness,  810,  311. 
From  negligence,  311. 
By  command  of  superior,  311. 
(&)  Indictment,  311,  312. 
Nature  and  requisites,  311. 
Averment  of  place,  311. 
Where  there  are  several  defendants, 

811,  312. 
Description  of  wound,  312. 
Averment  of  death,  312. 
Technical  averments,  312. 

(c)  Trial,  312. 

In  case  of  joint  indictment,  312. 

(d)  Evidence,  312-314. 

Facts    and    circumstances    must    be 

shown,  312. 
Nature  of  act,  312. 
Proof  as  to  nature  of  injury,  312. 
Heat  of  passion,  312,  313. 
Admissions  and  declarations,  313. 
Opinion  as  to  condition  of  deceased, 

313,  314. 
Proof  as  to  motive,  314. 
Burden  of  proof,  314. 
{e)  Verdict,  314. 

In  case  of  i)roof  of  higher  ofl^ense,  314. 
Is  not  restricted,  314. 
Effect,  814. 

3.  Justifiable  homicide,  314-323. 
{a)  In  self-defense,  314-321. 

Must  have  been  overt  act.  814,  315. 
Must  have  been  apparent  danger,  315. 


B.O'SllCVDE— continued. 

Pule  in  New  York,  315,  316. 

Rule  in  Pennsylvania   and  Missouri, 
316. 

Rule   in    Kentucky,    316,    317. 

Rule  in   Tennessee,    Louisiana,    Mi- 
chigan, and  Minnesota,  317. 

Rule   in    Iowa,    317,    318. 

Rule   in   North    Carolina,    Alabama, 
Mississippi,  and  California,  318. 

Rule  in  Virginia,  318,  319. 

Rule  in  Wisconsin,  Kansas,  Nevada^ 
and  Oregon,  319. 

Attack  may  be  anticipated,  319. 

Defendant   must   not    have   been    to 
blame,  319,  320. 

Duty  of  defendant  to  retreat,  320. 

Defendant  not  obliged   to  resort  to 
legal  protection,  820,  321. 

Person  defending  another,  321. 

Nature  of  inquiry,  321. 
(h)  In.  protecting  property,  321,  822. 

General  rule,  321. 

Defense  of  dwelling,  821,  822. 

Intruder  must  not  be  pursued,  322. 

Defending  right  to  public  property, 
322. 
(c)  In  prevention  of  felony,  322,  828. 

Reasonable  belief  sufficient,  322, 

In  arresting  felon,  322. 

In  resisting  attempt,  322. 

In  suppressing  riot,  322,  323. 
{d)  In  case  of  shipwreck,  323. 

Must  be  decision  by  lot,  323. 
(e)  In  case  of  accident,  323. 

Must  have  been  in  lawful  act,  823. 

Caused  by  disrcase,  323. 
(/)  Evidence,  823. 

Burden  of  proof,  323. 

Right  of  defendant  to  show  circum- 
stances, 323. 

IDIOCY. 

Rule  of  evidence,  323,  324. 
See  Insanity. 

IGNORANCE  OP  LAW. 
When  open  to  inquiry,  324. 

INCEST. 

1.  What  constitutes,  824. 

What  deemed  an  incestuous  marriage, 
334. 

What  deemed  an  attempt,  324. 

Cohabitation  with  a  stepdaughter  is 
not,  324. 

Offense  may  be  committed  wnth  an  il- 
legitimate daughter,  324. 

2.  Indictment,  324,  325. 
Averment  of   relationship,  324. 
Must  specify  time,  324. 
Must  charge  guilty  knowledge,  324,325. 
Defendant  may  be  convicted  of   rape, 

325. 


TABLE   OP   TITLES  A^B   SUBJECTS. 


XXlll; 


INCEST,  continued. 
3.  Evidence,  335. 

Admis.sions  and  declarations,  325. 
Proof  of  other  acts,  325. 

INDECENCY. 

See  Lasciviotjsness  ;  NniSANCE. 

INDICTMENT. 

1.  When  it  will  lie,  336. 

Constitutional  right,  326. 

When  in  general,   the  proper  remedy, 
336. 

Offenses  amenable  to,  326. 

Agreement  to  do  act, not  indictable,  o36. 
3.  Finding,  336,  338. 

Composition  of  grand  jury,  336. 

Oath  of  grand  jurors,  336,  327. 

Proof  required,  337. 

Stranger  in  grand  juiy  room,  337. 

Vacancy  in  ofRce  of  district  attorney, 
337. 

Signing  by  foreman,  327, 

Indorsing  true  bill,  337. 

Return  of  indictment,  327. 

Indorsement  of  name  of  prosecutor,  327, 
328. 

Indorsement  of  names  of  witnesses,  338. 

Filing  indictment,  328. 

Delivering  copy  of  indictment  to  pris- 
oner, 328. 

Loss  of  indictment,  328. 

3.  Venue,  328,  329. 

Must  be  laid  in  county,  328,  329. 
Where  a  new  county  is  created,  329. 

4.  Caption,  329,  330. 
Nature  and  office,  329. 
How  entitled,  329. 

What  it  should  contain,  339,  330. 
Indictment  made  certain  by,  330. 
Amendment,  330. 
Omission  of  caption,  830. 

5.  Commencement,  330. 
Form,  330. 

6.  Body  of  the  indictment,  330-347. 
(a)  Mime  of  defendant,  330-333. 

Must  be  alleged,  330. 

Where  name  is  unknown,  330. 

Christian  name,  330,  331. 

Abbreviation  of  surname,  331. 

Middle  letter,  331. 

Idem  sonans,  331. 

Description  of  defendant,  331,  332. 
(6)  Niirne  of  party  injured,  332. 

Must  be  alleged,  333. 

Averment  that  name  is  unknown,  333. 

Describing  by   initials   of    christian 
name,  332. 

Need  not   describe  by  any  addition, 
332. 

Omission  of  name,  333.   * 

Name  of  deceased  person,  how  deter- 
mined, 333. 
(c)   Tiine  and  place,  332-335. 

Must  be  stated,  with  certainty,  333. 


mDlCTME^H— continued. 

Words  then  and  there,  332,  333. 

Rule  as  to  the  averment  of  time,  333^ 
384. 

Use  of  figures,  334. 

Rule  as  to  averment  of  place,  334,335.. 
{d)   Statement  of  the  offense,  335-847. 

Must  be  intelligible,  335,  336. 

Averment  of  means,  336. 

Office  of  videlicet,  336. 

One  count  sufficient,  330. 

Mast  state  facts  constituting  the 
offense,  336,  337,  338. 

Charging  ofi'ense  in  different  ways, 
838. 

Charging  several  acts,  838,  389. 

Disjunctive  averment,  339. 

Charging  distinct  offenses,  339,  340. 

Joinder  of  ofienses,  340. 

Charging  several  with  dift'erent  of- 
fenses, 340,  341. 

Charging  time  of  enactment  of  stat- 
ute, 341. 

Describing  statutory  offense,  341,  343. 

Charging  offense  in  words  of  statute, 
343,  343,  344. 

When  exceptions  in  statute  must  be 
negatived,  344,  345. 

Description  of  written  instrument,  845. 

Description  of  property,  345. 

Averment  of  guilty  knowledge  and. 
intent,  345,  346. 

Technical  words,  346. 

Conclusion,  346,  347. 

7.  Removal  op  indictment,  347. 
How  eff"ected,  347. 

8.  Peoop  required,  347-349. 

As  to  holding  of  court,  347,  348. 

Indictment  on  tile  proves  itself,  348. 

Evidence  as  to  finding  of  indictment,. 
348. 

Must  be  shown  that  offense  was  com- 
mitted in  county,  348. 

Proof  of  immaterial  averments,  348. 

Proof  must  supjiort  charge.  348,  349. 

9.  Objection  to  indictment,  349,  350. 
How  made,  349. 

Waiver  of  objection  not  binding  on  ac- 
cused, 349,350. 
When  objection  too  late,  350. 

10.  Amendment  op  indictment,  350,351. 
Not  in  general  permitted,  350,  851. 
When  amendment  allowed,  351. 
Rejecting  words  as  surplusage,  351. 
Mutilation,  351. 

11.  Quashing  indictment,  351-353. 
Motion,  351. 

By  prosecution,  351. 
Is  in  discretion  of  court,  351,  352. 
Grounds  for  granting  motion,  352. 
In  case  of  several  defendants,  353,  353. 
When  motion  denied,  353. 

See  Grand  Jury.     For  indictments 

in  the  several  offenses,  see  the  titles 

of  those  offenses. 


XXIV 


TABLE   OF   TITLES  AND   SUBJECTS. 


INFORMATION. 
Nature.  353. 
When  it  will  lie,  353. 
What  it  should  contain,  353,  354. 
Amendmeut;  plea;  conclusion,  354. 

INNKEEPER. 

What  constitutes,  354,  355. 
Right  to  detain  horses,  355. 
Indictmeat  against,  355. 

INSANITY. 

1.  When  a  defense,  355,  356. 
Partial  insanity,  355. 

Moral  insanity,  355. 

Test  of  responsibility,  855,  356. 

How  determined,  356. 

2.  Evidence,  356-360. 

When  given  contrary  to  wishes   of  de- 
fendant, 356. 

Importance  of,  to  defense,  356. 

What  proof  required,  356. 

Jury  must  be  satisfied  of  prisoner's  san- 
ity, 356,  357. 

Acts  and  declarations  of  accused,  357, 
358. 

Good  character  of  prisoner,  358. 

Opinions  of  non-professional  witnesses, 
358. 

Rumor,  358. 

Hereditary  taint.  358. 

Presumption    from    previous    derange- 
ment, 358. 

Presumption  from  proof  of  insanitv  at 
trial,  358,  359. 

Burden  of  proof,  359,  860. 
See  Homicide. 

INTOXICxiTION  AS  AN   EXCUSE    FOR 
CRIME. 
Will  not  in  general  excuse,  360. 
When  entitled  to  consideration,  360,  33 L 
Where  defendant  was  unconscious  of  his 

act,  361,  362. 
Where  intoxication  causes  madness,  362. 
Proof  to  be  contined  to  date  of  offense, 
862. 

JEOPARDY. 

See   Former    acquittal   or   con- 
viction. 

JUDGMENT. 

1.  Nature  and  requisites,  362,  363. 
On  demurrer,  362. 

Judgment  on  conviction,  362. 

Date  may  be  given  in  figures,  362,  368. 

Reversal  of  judgment,  363. 

2,  Arrest  of  judgment,  363,  364. 
Nature  and  object  of  motion,  363. 
When  the  motion  may  be  made,  363. 
Where  the  oflense  is  barred,  363. 
When  the  motion  will  be  denied,  363. 
Presumption  that  motion  was   rightly 

overruled,  364. 
See  New  trial;  Trial. 


JURISDICTION. 

1.  Of  courts  in  general,  364,365, 
Cannot  be  conferred  by  consent,  364. 
Judge  de  facto,  364. 

Ab-ence  of  judge.  364. 

Judge  interested,  364. 

Irregularity  in  issuing  precept,  364. 

End  of  term,  865. 

Jurisdiction,  how  determined,  365. 

2.  With  riiFerence  to  the   place  op 

TRIAL,  365,  366. 
Designation  of  place  by  court,  365. 
Where  the  offense  is  committed  out  of 

the  State,  365. 
What  included  in  county,  365,  366. 
Where  the  offense  is  committed  on  the 

boundary  of  two  counties,  366. 

3.  Jurisdiction  op  State  courts,  366- 

868. 
In  case  of  unlawful  arrest  out  of  State, 

366. 
In  the  case  of  Indians,  366. 
Offenses  against  the  United  States,  366, 

367. 
New  York  Supreme  Court,  367. 
New  Y^ork  Court  of  Oyer  and  Terminer, 

367. 
New  York  Court  of  Sessions,  367,  368. 
Supreme  Court  of  Louisiana,  368. 

4.  Jurisdiction    op    United    States 

COURTS,  868. 
In  relation  to  offenses  in  general,  368. 
In  cases  of  Tiolation  of  State  law,  368. 

JURY. 

Eight  to  trial  by.  368,  369. 

Prisoner  cannot  waive,  369. 

Who  may  serve  on,  869. 

Persons  who  are  incompetent  to  serve  as 

jurors,  369,  370. 
Exemption  from  service  on,  370. 
Struck  jury,  370. 
Jury  de  medietate  liuQUce,  370. 
How  summoned.  870. 
Officer's  return,  870. 
Objection  to  venire,  370,  371. 
Drawing  j ury,  871. 
Summonirg  talesmen,  371. 

See  Grand  Jury.      For   challenges 

and  other  matters  relating  to  jurors, 

see  Trial. 

KIDNAPPING. 

Nature  of  offense,  371. 
What  constitutes,  371. 
Indictment,  871. 
Evidence,  371,  372. 

LARCENY". 
1.  The  tIking,  372-^80. 
JMust  be  against  will  of  owner,  373. 
Must  have  been  a  removal,  372. 
Slight  removal  sufficient,  872,  373. 
Delivery  of  property  by  owner,  373. 


TABLE   OF   TITLES  AND   SUBJECTS. 


XXV 


LA-HCET^Y— continued. 

Where  the  owner  parts  with  the  posses 

sion,  but  not  with  the  title,  373-375. 
Taking  by  servant,  375. 
Taking  by  clerk,  375. 
Consent  of  wife  of  owner,  375. 
In  committing  trespass,  375,  376. 
Is  included  in  robbery,  376. 
When  taking  deemed  larceny  and  not 

robbery,  376. 
When    attempt    to   steal   from  person 

complete,  376. 
Suing  for  fictitious  demand,  376,  377. 
Acquiring  jDOSsession  through  mistake, 

377. 
Obtaining  property  by  trick,  377. 
Obtaining    goods    by   false   pretenses, 

377,  378. 
Obtaining  property  by    borrowing   or 

hiring,  378. 
Fraudulent  taking  of  goods  by  owner, 

378. 
When  finder  of  property  is  guilty  of 

larceny,  378,  379,  380. 
Taking  from  house  or  building,  380. 
3.  The  intent,  380-383. 

Felonious  intent  essential.  380,  381. 
Must  be  intent   to   deprive   owner  of 

property,  381. 
Intent  to  destroy  propertv  not  sufficient, 

381. 
Intent  to   deprive   owner   of  property 

temporarily,  381. 
Intent  to  charge  another,  381,  383. 
Need   not   be  intent  to  convert  prop- 
erty, 383. 
Time  of  forming  intent,  383. 
Where  owner  is  unknown,  383. 

3.  Subjects  op  larceny,  383-384. 
Must  be  of  some  value,  383. 
Bonds  and  notes,  383. 

Bank  bills,  383,  383. 
Receipt,  383. 
Account  books,  383. 
Mail  matter,  383. 
Mortgaged  property,  383. 
Domestic  animals,  383,  384. 
Animals  of  a  wild  nature,  384. 
Property  unlawfully  obtained,  384. 
Things  which  savor  of  the  realty,  384. 

4.  Warrant,  384. 
For  arrest,  384. 

Of  commitment,  384. 

5.  Place  of  indictment,  385,  386. 
Where  property  is  stolen  abroad,  385. 
Where   property   is   stolen   in   anotlier 

State,  385. 
AVhere  goods  stolen  in  one  county  are 

carried  into  another  county,  385,  386. 
For  offenses  against  United  States,  386. 

6.  Indictment,  386-398. 

Otiense  only  punishable  by  process  of 

law,  380. 
Will  lie  against  deaf  and  dumb  person, 

386. 


LA.nC'E.'NY— continued. 

Cannot    be    maintained    against   feme 

covert,  386. 
When  acquittal  not  a  bar,  386. 
Statement  of  venue,  386. 
Joinder  of  defendants,  886,  387. 
Averment  of  guilty  knowledge  and  in- 
tent, 387. 
General  rule  as  to  description  of  prop- 
erty, 387,  388. 
Description  of  promissory  notes,  388. 
Averment  of  the  stealing  of  money,  389. 
Description  of  bank  bills,  389,  390. 
Describing   bank    bills    as   promissory 

notes,  390. 
Need  not  name  bank,  390,  391. 
Insufficient  description  of  bank  bills,391. 
Description  of  coin,  391,  393. 
Description  of  building,  393. 
Ownership  of  property  must  be  averred, 

393. 
Owner  of  stolen  goods  must  be  named, 

393. 
Ownership  of  mail  matter,  how  averred, 

393,  393. 
Describing  articles  furnished  by  parent 

to  child,  393. 
Property  of  married  woman,  how  de- 
scribed, 393. 
In  case  of  joint  ownership,  393. 
In  case  of  a  general  and  special  owner- 
ship, 393,  394. 
Averment  of  possession,  394. 
Averment  of  value,  394,  395. 
Averment  of  place  of  offense,  395,  396. 
Charging  attempt  to  commit  offense,  396. 
Charging  second  offense,  396,  397. 
Charging  offense  in  different  ways,  397. 
Averment  of  the  stealing  of  articles  be- 
longing to  different  pei'sons,  397. 
Charging  distinct  offenses,  397,  398. 
Material  and  immaterial  averments,  398. 
Conclusion,  398. 

7.  Evidence,  398-413. 

(rt)  Proof  of  taking,  398,  399. 
Taking  must  be  shown,  398. 
To   convict   of   stealing  letters  there 

must  be  proof  of  a  taking  from  the 

mail,  398. 
Proof  of  substance  of  charge  sufficient, 

398,  399. 
Uncorroborated  testimony  of  prosecu- 
tor, 399. 
W^hen  prosecution  compelled  to  elect, 

399. 
Question  for  jury,  399. 
(b)  Evidence  as  to  property  talen,  399, 400. 
Proof  of  stealing  more  than  charged, 

399. 
Proof  as   to  one  of   several  articles 

stolen,  399. 
Slight  variance  disregarded,  399,  400. 
When  description  must  be  proved  as 

laid,  400. 


XXVI 


TABLE   OF   TITLES   AND   SUBJECTS. 


LARCENY— CO?!  tm  iied. 

(c)  Proof  of  place  of  offense,  400,  401. 

Exact  proof  not  required,  400,  401. 
{(f)  Proof  of  ownership  of  jiroperty,  401- 
403. 

How  made,  401. 

Proof  of  special  ownership  sufBcient, 
401,  402. 

Property  of  married  woman  must  be 
proved  as  laid,  402. 

Proof  ol  stealing  property  of  corpora- 
tion, 402. 

In  case  of  joint  ownership,  402. 

Proof  of  name  of  owner.  402,  403. 
(e)  Proof  of  value  of  property,  403,  404. 

Genuineness  of  bank  notes  must  be 
shown,  403. 

Genuineness     of    bank     bills,     how 
proved,  403. 

Presumption    as    to    genuineness   of 
b;ink  bills,  403. 

Proof  of  contents  of  bank  bills.  403, 
404. 

Value  ofgoods  stolen,  how  proved,404. 

Value  inferred,  404. 
{f)  Presumptite  evidence,  404-410. 

From  handwriting,  404. 

From  footprints,  404. 

From    possession    by    defendant    of 
other  property,  404. 

Embarrassed  circumstances  of  the  de- 
fendant, 404,  405. 

Acts  of  defendant,  405. 

Defendant  pointing  out  stolen  prop- 
erty, 405. 

Taking  by  defendant  of  other  goods, 
405,  4fi6. 

Commission  of  distinct  larceny,  406. 

Flight  and  return  of  defendant,  406. 

Possession  of  stolen  property,  406. 

Possession  of  property  must  have  been 
recent,  400,  407. 

Possession  of  stolen  property,  how  re- 
garded in  the  different  States,  407, 
408,  409. 

Pact  of  possession  of  stolen  property 
to  go  to  jury,  409. 

Possession  of  stolen  property  may  be 
explained.  409. 

Possession  of  stolen  property  obtained 
from  carrier,  409. 

Presumption  of  discharge  from  former 
conviction,  410. 

Effect  of  circumstantial  evidence,  410. 
(g)  Admissions,  declarations  and  confes- 
sions, 410-412. 

Not  to  be  excluded  because  owner 
not  a  witness,  410. 

When  not  sufficient,  410. 

Silence  of  defendant,  410. 

Offer  of  defendant  to  pay  for  prop- 
erty, 410. 

Confession,  410. 

Declarations   of   owner  of   property, 
410,  411. 


LARCENY — con  tin  ued. 

Declarations  of  defendant  in  his  own 

behalf,  411,413. 
Admission  by  district  attorney,  412. 
Wife  of  defendant  as  witness.  412. 
(A)  Ouilty  hnoidedge  and  intent,  412, 413. 
must  be  proved,  412. 
Possession  of  other  stolen  property, 

412. 
Mental  condition  of  defendant,  412. 
Minority  of  defendant,  413. 
Proof  of  mistake  by  defendant,  413. 
Right  of  defendant  to  explain  intent, 

413. 
To  be  determined  by  jury,  413. 
(j)  Former  conviction,  413. 
To  be  alleged  and  proved,  413. 
Waiver  of  objection,  413. 

8.  Charge  of  court,  413,  414. 
Charging  as  to  value,  413,  414. 

9.  Verdict,  414,  415. 

Where  the  stealing  of  several  articles  is 

charged,  414. 
When  finding  of  value  is  necessary,  414. 
Finding  value  of  part  of  articles  stolen, 

414. 
Finding  collective  value,  414,  415. 
Where  another  offense  is  charged,  415. 
In  case  of  charge  against  two,  415. 

10.  Sentence,  415,  416. 

Must  be  consistent  with  verdict,  415. 
For  part  of  offense  found,  415. 
Defendant  disfranchised,  415,  416. 

See  Receiving  stolen  property. 

LASCIVIOUSNESS. 

1.  What  constitutes,  416,  417. 
Wanton  behavior,  416. 
Indecent  exposure,  416. 
Obscene  language,  416. 
Keeping  house  of  ill-fame,  416. 
Renting  house  for  prostitution,  416. 
Lascivious  cohabitation,  416,  417. 

2.  Indictment,  417.  418. 
When  it  will  lie,  417. 
Joinder  of  parties,  417. 
Name  of  defendant,  417. 
Charging  lascivious  behavior,  417. 
Averment  of  indecent  exposure,  417, 418. 
Description   of  common  night-walker, 

418. 
Charge  of  publication  or  sale  of  indecent 

prints,  418. 
Charge  of  keeping  house  of  ill-fame,  418. 
Charge  of  unlawful  cohabitation,  418. 

3.  Evidence,  418-420. 
Complainant  as  a  witness,  418. 
Intent  of  defendant  material,  418,  419. 
Proof  of  open  lewdness,  419. 

Acts  of  illicit  intercourse,  419. 

Proof  of  renting  house  for  purposes  of 

prostitution,  419. 
Proof  of  evil  reputation  of  house,  419. 
Proof  of  keeping  house  of  ill-fame,  419, 

420. 


TABLE   OF   TITLES   AND   SUBJECTS. 


XXVll 


LASC\Y10\J  SN'ESS—contimted. 

Proof  of  UDlawful  cohabitation,  420. 
Proof  of  marria<i;e,  420. 
Admissions  and  declarations,  420. 

See  Adtxltery;  Bigamy;  Incest; 
Nuisance  ;  Obscene  publica- 
tions. 

LETTER. 

Unlawful  to  open,  420,  421. 

Indictment,  421. 

When  defendant  entitled  to  acquittal,  421. 

See  THREATENJNCi  TO  ACCUSE  OF 
CRIME. 

LIBEL. 

1.  Meaning  and  nature,  421,  422. 
What  deemed,  421. 

Need  not  be  ill-will,  421. 
What  is  not,  421,  422. 

2.  Indictment,  422,  423. 

Must  show  that  the  publication  is  a  libel, 

422. 
What  it  ought  to  contain,  422. 
Office  of  an  innuendo,  422. 
AveiTQent  of  publication,  422. 
Libelous  matter  must  be  set  out,  422,  423. 

3.  Evidence,  423-425. 

Descriptive  averment  must  be  proved, 
423. 

Proof  of  publication,  423. 

When  publication  by  defendant  will  be 
presumed,  423. 

Language  of  publication  may  be  ex- 
plained, 423. 

Admissions,  423,  424. 

Malice  presumed,  424. 

Proof  of  other  publication,  424. 

Proof  in  justification  or  mitigation,  424. 

Truth  of  publication  mav  be  shown,  424, 
425. 

Proof  of  character,  425. 

Waiver  by  defendant,  425. 

4.  Verdict,  425. 
What  to  contain,  425. 

Must  be  consistent  with  charge,  425. 

5.  Writ  of  error,  425. 

For  exclusion  of  evidence,  425. 
Record,  425. 

LICENSE. 

Necessity  of,  425. 

To  partnership,  425. 

Unlawful  granting  of,  425,  42G. 

Indictment,  42(J. 

Evidence,  42G. 

See  Spirituous  liquors,  sale  of. 

LOTTERY. 

1.  What  constitutes,  426-128. 
What  deemed,  426.  427. 
Lottery  tickets,  427. 
Advertising,  when  indictable,  427. 
Prohibitory  statutes,  437,  428. 

2.  Indictment,  428. 
Descriptive  averments,  428. 


MAGISTRATE. 

Proceedings  before,  deemed    continuous, 
429. 

MALICIOUS  ARREST. 

See  False  imprisonment. 
MALICIOUS  MISCHIEF. 

1.  What  constitutes,  429,  430. 
What  meant  by,  429. 
Essence  of  offense,  429. 

At  common  laAV,  429. 
Injury  ol  animals,  429,  430. 
Destruction  of  property,  430. 

2.  Indictment,  430-432. 
Averment  of  malice,  430. 

Need  not  charge  that  oHense  was  with 

force  and  arms,  430,  431. 
Description  of  property,  431. 
Averment  of  ownership,  431. 
Allegation  of  value,  431. 
Description  of  injury,  431,  432. 

3.  Evidence,  432-434. 
Proof  of  ownership,  432. 

Proof  of  another  offense,  432,  433. 
Proof  of  malice,  433. 
Presumption,  433. 
Declarations  of  defendant.  433. 
Evidence  in  justification,  433,  434. 

4.  Verdict,  434. 

Must  find  malice,  434. 

See  Malicious  trespass. 

MALICIOUS  PROSECUTION. 

When  indictable,  434. 

MALICIOUS  TRESPASS. 

1.  What  is,  or  is  not  deemed,  434,  435. 
Destruction  of  property,  434. 
Killing  dog,  434. 

Acts  not  regarded  as  criminal,  434,  435. 

2.  Complaint,  435. 

What  it  ought  to  contain,  435. 
8.  Indictment,  435. 

Averment  of  injury,  435. 

Description  of  property,  435. 
4.  Evidence,  435. 

Proof  of  ownership  of  property,  435. 

Proof  of  malicious  intent,  435. 

See  Malicious  mischief  ;  Trespass. 

MANDAMUS. 

What  deemed  sufficient  ground  for,  435. 

MANSLAUGHTER. 

See  Homicide. 

M.WHEM. 

1.  What  constitutes,  436. 
At  common  law,  436. 

In  New  York,  Nortli  Carolina,  Alabama 
and  Arkansas,  436. 

2.  Indictment,  436. 
Necessary  averments,  436. 
Description  of  injury,  436. 

3.  Evidence,  436,  437. 

Malice  need  not  be  proved,  436. 


XXVI 11 


TABLE   OF   TITLES   AND   SUBJECTS. 


MXYUE'Sl—cmt  limed. 

Restoration  of  nieuibcr  not  a  defense, 

436.  437. 
Proof  in  justilication,  437. 
4.  Verdict,  437. 

May  be  for  simple  assault,  437. 
See  Assault  and  battery. 

MISDEMEANOR. 

1.  What  constitutes,  437,  438. 
In  general,  437. 

xVt  common  law,  437. 

Acts  which  are  deemed,  437,  438. 

Attempt  to  commit,  438. 

AVhat  is  not  a  misdemeanor,  438. 

Compounding,  438. 

Degrees  of  guilt,  438. 

2.  Indictment,  438,  439. 
When  it  will  lie,  438. 
Need  not  be  precise,  438. 
Name  of  county,  438. 
Description  of  offense,  438. 
Joinder  of  offenses,  438,  439. 

May  be  good,  although  defectire  as  to 

a  felony  charged,  439. 
Effect  of  overruling  demurrer  to,  439. 

3.  Trial,  439. 

Absence  of  defendant,  439. 

4.  Evidence,  439.  440. 
Weight  and  sutificiency  of,  439. 
Good  character  of  defendant,  440. 
Proof  of  felony,  440. 

•5.  Verdict,  440. 

May  be  given  in  the  absence  of  defend- 
ant, 440. 

May  be  for  attempt,  440. 
6.  Judgment,  440. 

Upon  conviction  of  felony,  440. 

Under  general  verdict  of  guilty,  440, 

Arrest  of,  440. 

MURDER. 

See  Homicide. 


NEW  TRIAL. 

1.  Jurisdiction  of  court,  and  when  ex- 

ercised, 440-442. 
United  States  courts,  440. 
State  courts,  440,  441. 
Motion  for,  upon  what  based,  441. 
Duty  of  court,  441. 
Discretionary  power  of  court,  441. 
In  case  of  vacancy  in  court,  441,  442. 
In  case  of  acquittal,  442. 
Where  application  should  be  made,  442. 
When  defendant  must  be  present,  442. 
Hearing  of  motion,  442. 
Affidavits  of  prisoner,  442. 
Affidavits  of  jurors,  442. 
Waiver  of  motion,  442. 

2.  Grountds  for,  442-465. 

(a)  On  account  of  indictment,  443,  443. 
Irregularity  in  finding,  442,  443. 
Indictment  stolen  or  missing,  443. 


NEW  TRIAJj— continued. 

(&)  Irregidarity  in  summoning  or  impan- 
eling jury,  443,  444. 

Objection,  how  made,  443. 

Failure  to  return  venire,  443. 

Omission  to  place  jurors'  names  in 
box.  443. 

Error  in  drawing  jury,  443. 

Setting  aside  juror  improperly,  443. 

Improper  withdrawal  of  juror,  443, 
444. 

Insufficient  number  of  jurors,  444. 
{c)  Disqualification  of  jurors,  444-447. 

Disqualification  must  have  been  un- 
known, 444. 

When  objection  must  be  made,  444. 

Insanity  of  juror,  445. 

Bias  or  prejudice,  445,  446. 

Opinion  which  is  not  fixed  will  not 
disqualify,  446. 

Opinion  founded  on  rumor,  446. 

Examination  of  juror  on  oath,  446. 

Denial  by  juror  of  previous  bias,  446, 
447. 

(d)  Improper  admission  or  exclusion  of 
evidence,  447-449. 

Witness  not  sworn,  447. 

Withdrawal  of  witness,  447. 

Irrelevant  evidence,  447. 

Admission  of  illegal  evidence,  447. 

Illegal  evidence  presumed  injurious, 
447. 

Presumption  of  injurv  may  be  re- 
butted, 447,  448. 

Misdirection  of  evidence,  448. 

Waiver  by  failing  to  object  to  evi- 
dence, 448. 

Inability  to  present  evidence,  448. 

Withholding  evidence  from  jiry,448. 

Jury  viewing  premises  in  absence  of 
prisoner,  448. 

Questionable  credibility  of   witness, 

448,  449. 
Improper  argument,  449. 
Evidence  must  be  set  out,  449. 

(e)  Erroneous  p>roceeding  or  instruction, 

449,  450. 

Must  have  caused  injury,  449. 

Erroneous  instruction  must  be  ex- 
cepted to,  449. 

Error  in  admitting  or  excluding  ju- 
rors, 449. 

Uncalled  for  remark  by  judge,  449. 

Where  the  jury  may  have  been  mis- 
led, 449,  450. 

Judge  intimating  his  opinion  of  the 
evidence,  450. 

Appeal  to  prejudices  of  jury,  450. 

Judge  neglecting  or  refusing  to 
charge,  450. 

Charging  a  second  time,  450. 

Court  neglecting  to  interrogate  pris- 
oner, 450. 
(/")  Tampering  with  jury,  450-452. 

By  prosecutor  before  trial,  450. 


TABLE   OF   TITLES   AND   SUBJECTS. 


XXIX 


NEW  TmA.L—co?itinued. 

By  counsel  for  prosecution,  450. 

By  witness  for  prosecution,  450. 

By  stranger,  451. 

By  officer,  451,  453. 

Person  not  sworn  taking  charge   of 

jury,  453. 
Judge  communicating  with  juiy  after 

they  have  retired,  453. 
(g)  Misconduct  of  jury,  453-456. 
Will  not  be  presumed,  453. 
Jurors  taking  notes,  453,  453. 
Juror  sleeping,  453. 
Sejiaration  without  improjier  motive, 

453,  454. 
Separation  of  jury  presumed  injuri- 
ous, 454. 
Unexplained  separation  of  jury  fatal 

to  verdict,  454,  455. 
Separation  of  jury  by  consent,  455. 
Jury  taking  refreshments,  455. 
When  drinking  of  spirituous  liquor 

by  jury  is  excusable,  455,  456. 
When  drinking  of  liquor  by  jury  is 

fatal  to  verdict,  456. 
Proof  of  misconduct  of  jury,  456. 
{li)  Surprise,  456-458. 
As  to  disqualification  of  juror,456,457. 
That  names  of  witnesses  were  not  on 

indictment,  457. 
Artifice  or  management,  457. 
Omission  or  mistake,  457. 
Neglect  to  obtain  witness,  457. 
Absence  of  witness,  457. 
Intoxication  of  witness,  458. 
Witness  leaving  court,  458. 
Perjury  of  witness,  458. 
Incapacity  of  interpreter,  458. 
Intoxication  of  defendant,  458. 
Unexpected  evidence,  458. 
Improper  admission  by  counsel,  458. 
(i)  Newly  discovered  evidence,  458-460. 
When  ground  for  relief,  458,  459. 
Must  have    been   unknown    and  no 

■want  of  diligence,  459. 
Must  be  material,  459. 
Must  not  be  cumulative,  459,  460. 
(j)  Irregularities  in  the  care  or  conduct  of 

the  jury, 'iGO,AQl. 
Jury  not  under  care  of  officer,  460. 
Change  of  officer,  460. 
Papers  handed  to  jury  by  officer,  460. 
Jury  taking  out  documents,  460. 
Examination  of  statutes,  460. 
Reading  newspapers,  460. 
Receiving  additional  evidence,  460, 

461. 
Juror  communicating  information  to 

his  fellows,  461. 
(A-)  Improper  rendering  of  verdict,4:CAAQ2. 
Jury  resorting  to  calculation,  461. 
Disclosing  verdict,  461. 
Absence  of  prisoner,  461, 
Jury  not  polled,  461,  463. 
Jury  not  acquiescing  in  verdict,  463. 


NEW  TRIAL— continued. 

(I)    Wrong^  verdict,  463-465. 

Insufficient  for  the  rendering  of  judg- 
ment, 463. 
Against  law  or  evidence,  463, 463. 
Withholding  from  prisoner  benefit  of 

doubt,  403. 
Verdict  variant  from  Charge,  463,464. 
Where  no  injustice  has  been  done,  464. 
Presumption  in  favor  of  verdict,  464. 
Relief  when  granted,  464. 
Review  of  decision,  464,  465. 
3,  Effect  of  setting  aside  verdict,  465. 
Prisoner  to  be  tried  again,  465. 
Subject  of  rehearing,  465. 

See  Appeal  ;  Bill  of  exceptions  ; 
Certiorari  ;  Writ  of  error. 

NOLLE  PROSEQUL 

In  the  United  States  courts,  465. 

In  the  State  courts,  465, 466. 

To  some  of  several  counts,  466,  467. 

Is  not  a  bar  to  further  prosecution,  467. 

Effect  on  bond,  467, 

Withdrawal,  467. 

NUISANCE. 

1.  Nature  and  requisites,  467, 468, 
Must  be  an  annoyance  to  the  public, 

467,  468. 
Nature  of  acts  to  be  regarded,  468. 
Must  be  obnoxious  in  fact,  468. 

2.  Acts  endangering  life,  468,  469. 
Keeping  explosives,  468. 

Spring  guns,  468,  469. 
Improper  driving,  469. 

3.  Acts  detrimental  to  health, 469,470. 
Ofifensive  trade,  469. 

Corrupting  water,  469. 
Poisoning  air  with  sta'gnant  water,  469, 
470. 

4.  Obstructing  highway,  470-473. 
Highway,  how  created,  470. 
What  deemed  a  highway,  470. 
Right  of  way,  470,471. 

Acts  rendering  party  liable,  471. 
Partial  encroachment,  471. 
Obstructing  sidewalk,  471. 
Obstructing  passage-way,  471,  473, 
Encroachment  by  railroad,  473. 
Encroachment  on  public  square,  472, 
Cattle  in  street,  473, 
Obstructing  railroad,  472,  473. 

5.  Neglect    to    repair    highway    or 

bridge,  473,  474. 
May  be  punished  criminally,  473. 
Liability  of  turnpike  company,  473, 
Neglect  of  town  to  repair  road,  473. 
Neglect  to  repair  streets,  473. 
Duty  to  repair  bridge,  473,  474. 
Neglecting  to  keep  bridge  lighted,  474. 

6.  Obstructing  river,  474. 
Indictable  at  common  law,  474, 
Erection  of  dam,  474. 
Where  indictable,  474. 


XXX 


TABLE   OF   TITLES  ATSD   SUBJECTS. 


'NJJISA'NCE— continued. 

7.  Disorderly  house,  474,  475. 
What  deemed,  474,  475. 
Regarded  as  a  nuisance,  475. 
Liability  of  keeper,  475. 
Liability  of  landlord,  475. 

8.  Gaming  house,  475. 
Indictable  at  common  law,  475. 

9.  Bowling  alley,  475,  476. 
Deemed  a  nuisance,  475,  476. 

10.  Trial,  476. 

Right  to  jury  trial,  476. 

11.  l^rDICTMENT,  476-481. 

Right  to,  not  affected  by  penalty,  476. 
Who  not  liable  to,  476. 
Liability  of  attorney,  476, 
Husband  and  wife  may  be  jointly  in 

dieted,  476. 
Landlord  and  tenant,  476. 
Corporation,  476,  477. 
Averment  of  time  and  place,  477. 
Description  of  highway,  477,  478. 
Description  of  building,  478. 
Allegation  as  to  ownership  of  property, 

478. 
Statement  of  facts  constituting  offense, 

478,479. 
Insufficient  averment,  479. 
Duplicity,  479, 480. 
Averment  as  to  defendant's  duty  and 

liability,  480. 
Averment  as  to  guilty  intent,  480,481. 
Conclusion,  481. 

12.  Evidence,  481-486. 
Proof  of  place,  481. 
View  of  premises,  481. 

Variance  as  to  ownership  of  property, 
481. 

Evidence  aS  to  person  committing  in- 
jury, 481,  482. 

Proof  of  acts  constituting  offense,  482. 

Evidence  must  tend  to  support  charge, 
482,  483. 

Presumptions,  483,  484. 

Proof  of  guilty  intent,  484. 

Admissions  and  declarations,  485. 

Weight  and  sufficiency  of  proof,  485,486. 

13.  Verdict,  486. 

In  case  of  several  defendants,  486. 

14.  Judgment,  486. 

For  obstruction  of  highway,  486. 
Must  command  defendant  to  abate  nui- 
sance, 486. 
For  removal  of  nuisance,  486. 

15.  Abatement  op  nuisance,  486. 
By  private  person.  486. 

By  mortgagor,  486. 

See  Breach  of  the  peace;    Las- 
civiousness. 

OBSCENE  PUBLICATIONS. 
Indictment,  487. 

See  Lasciviousness  ;  Libel. 


OBSTRUCTING  HIGHWAY. 

See  Nuisance. 

OFFICER. 

1.  Authority  and  duty,  487-489. 

When  magistrate  protected,  487. 

Who  deemed  an  officer  de facto,  487. 

How  far  acts  of  officer  de  facts  valid,  487. 

Duties  of  commissioners  of  excise,  487, 
488. 

Right  to  make  arrest  in  default  of  prop- 
erty, 488. 

Right  of  justice  of  the  peace  to  com- 
mand assistance,  488. 

Duty  to  arrest  deserters,  488. 

May  enter  house  without  warrant,  488. 

Right  to  search  house,  488. 

May  break  open  door  of  house,  488. 

Duty  of  officer  to  show  his  precept,  488, 
489. 

When  justified  in  taking  life,  489. 

May  take  stolen  propertv  into  his  cus- 
tody, 489. 

Magistrate  may  direct  the  delivery  of 
property,  489. 

Has  custody  of  prisoner,  489. 

Duty  to  return  warrant,  489. 

2.  Liability,  489. 
Neglect  of  duty,  489. 
Fraudulent  conversion,  489. 
Overdrawing  account,  489. 
Buying  order,  489. 

3.  Resisting  officer,  489,  490. 
What  constitutes,  489,490. 
Hindering    person    deputed    to    serve 

warrant,  490. 
Resistance  by  tax-payer,  490. 
Resisting  seizure  of  property,  490. 
Duty  of  soldiers  to  obey  orders,  490. 

4.  Indictment,  490-492. 

For  misconduct  in  office,  490,  491. 
For  taking  unlawful  fee,  491. 
Failure  to  execute  warrant,  491. 
Making  false  return,  491 . 
Falsely  personating  officer,  491. 
Resisting  officer,  491,492. 
Information  for  removal  of  officer,  492. 

5.  Evidence,  492,  493. 
Proof  of  authority,  492. 

Proof  of  intent  to  defraud,  492,  493. 
Process    admissible    although   not   re- 
turned, 493. 
Officer  not  required  to  be  a  witness,  493. 
See  Arrest;  Embezzlement. 

OUTLAWRY. 

Prosecution  to,  493. 
Process  of,  493. 

PARDON. 

Power  of  executive  to  grant,  493. 
Remission  of  part  of  fine,  493. 
May  be  conditional,  493,  494. 
By  repeal  of  statute,  494. 
Implied  promise  of,  494. 
How  proved,  494. 


TABLE   OF  TITLES   AND   SUBJECTS. 


XXXI 


PAED  ON  —con  tinued. 

How  taken  advantage  of,  494. 

Averment  of,  494. 

General  effect,  494. 

Does  not  affect  offense  not  mentioned 

in  it,  495. 
Restoration  of  competency  to   testify, 

495. 
When  person  pardoned  not  a  compe- 
tent witness,  495. 
Does  not  remit  interest  in  penalty,  495. 
Effect  on  costs,  495. 
PEACE,  BREACH  OF. 

See  Affray  ;  Breach  of  the  peace  ; 
Riot. 
PEDDLERS. 

Meaning  of,  495,  496. 
Constitutionality  of  statute  respecting,496. 
Indictment  against,  496. 
Burden  of  proof,  496. 
PERJURY  AND  SUBORNATION  OF  PER- 
JURY. 
1.  Perjury,  496-513. 

(a)   Wfceii  and  how  committed,  496-501. 
Meaning  of  perjury,  496. 
By  swearing    falsely    under  general 

oath,  496. 
Swearing  to  fact  without  any  knowl- 
edge of  it,  497. 
Swearing  contrary  to  belief,  497. 
Evidence  deemed  material,  497. 
False  statement  need  not  tend  direct- 
ly to  prove  the  issue,  497,  498. 
Where  the  false  testimony  was  inad- 
missible, 498. 
Where   the  witness   was  improperly 

sworn,  498. 
Where  case    failed    from    defect  of 

proof,  498. 
Immaterial  statements,  498. 
Mode  of  statement  not  important,  498. 
Need  not  have  caused  injury,  498,  499. 
False  oath  must  have  been  taken  will- 
fully, 499. 
Subjects  of  offense,  499. 
In  naturalization  proceeding,  499. 
In  proceedings  before  grand  jury,  500. 
By  juror  when  examined  as  to  his 

competency,  500. 
In  affidavit  required  by  statute,  500. 
Tribunal    administering    oath    must 

have  had  jurisdiction,  500. 
Oath  administered    by  unauthorized 

person,  500. 
Extrajudicial  oath,  500,  501. 
{b)   indictment,  501-509. 
General  requisites,  501. 
Must  show  t  iiat  offense  was  in  judicial 

proceeding,  501. 
Must  state  where  the  oath  was  admin- 
istered, 501. 
Must   show  authority   to   administer 

oath,  501,  502,  503. 
Must  show  nature  of  proceeding.s,  503. 
Averment  of  time  and  place,  503,  504. 


PERJURY,  &c.—continuel . 

Charging  administration  of  oath,  504. 

Form  of  oath  need   not  be  averred, 
504,  505. 

Averment  of  substance  of  oath  suf- 
ficient, 505. 

Averment  of  guilty  knowledge  and 
intent,  505. 

Averment  of  falsity  of  testimony,  505, 
506. 

Specifying  in  what  the  offense  con- 
sists, 506,  507. 

Must  charge  materiality  of  testimony, 
507.  508,  509. 

Conclusion,  509. 

Form,  509. 
(c)  Eeidence,  509-513. 

Authority  to  administer  oath,  509. 

Proof  that  defendant  was  sworn,  509. 

Evidence  as  to  nature  of  oath,  509,510. 

Proof  of  time  and  place,  510. 

Evidence  as  to  nature  of  proceedings, 
510. 

Proof  as  to  matter  sworn  to,  511. 

Testimony  required  to  convict,  511. 

Written  evidence,  511,  513. 

Party  to  suit  may  be  a  witness,  513. 

Wife  as  witness,  513. 

Presumptive  evidence,  512. 

Proof  of  guilty  knowledge  and  intent, 
513,  513. 

Declarations  of  defendant,  513. 

Proof  of  defendant's  good  character, 
513. 

Offer  of  prosecution  to  settle,  513. 

Burden  of  explanation  on  defendant, 
513. 
{d)   Verdict,  513. 

Variant  from  charge,  513. 
3.  Subornation  op  perjury,  513,  514. 
{a)  Requidtes,  513,  514. 

Perjury  must  have  been  instigated,513. 

Must  have  been  knowledge  that  tes- 
timony would  be  false,  513,  514. 

May   be   through    party   in   another 
State,  514. 

(b)  Indictment.  514. 

Must  aver  that  the  witness  testified, 514. 
Description  of  proceeding's,  514. 
Must  charge  guilty  knowledge,  514. 
May  ciiarge  several,  514. 
For  attempt,  514. 

(c)  Evidence.  514. 

One  witness  sufBcient,  514. 
PILOT. 

Liability  of,  515. 
PIRACY. 

At  common  law,  515. 

May  be  committed  on  ship  at  anchor,  515. 

Under  acts  of  Congress,  515. 

Privateers,  515,  516. 

Foreign  cruisers,  516. 

Robbery  on  foreign  vessel,  516. 

Se'zure  of  piratical  vessel,  516. 

Indictment,  516. 


xxxu 


TABLE   OF   TITLES  AND   SUBJECTS. 


TlKACY—amtimied. 

Proof  character  of  vessel,  516. 
Must  be  proof  of  guilty  knowledge  and 
intent,  516. 

See  Slate  trade. 
POISONING. 

See  Homicide. 
POUND  BREACH. 

What  essential  to  constitute  the  oifense, 
516. 
PRESENTMENT. 
At  common  law,  516. 
How  used  in  Virginia,  516. 
Finding  and  entering  of  record,  517. 
PROFANE  SWEARING. 
How  regarded,  517. 
What  constitutes,  517. 
Defendant  may  be  arrested  by  a  justice  of 

the  peace,  517. 
Indictment.   517. 

See  Blasphemy. 
PROVISIONS. 

See  Unwholesome  provisions,  sale  of. 
PUBLIC  BRIDGE. 
See  Toll. 
PUBLIC  JUSTICE,  OBSTRUCTION  OF. 

Indictment,  517,  518. 
RAILROAD       TRAIN,      UNLAWFULLY 
STOPPING. 
By  pulling  bell  rope,  518. 
RAPE. 

1.  What  constitutes,  518-520. 
Meaning  of,  518. 

Must  be  force,  518. 

Must  have  been  resistance,  518,  519. 

Where  female  is  insensible,  519. 

Purpose  accomplished  by  fraud,  519. 

Where  female  consented,  519. 

Penetration,  519. 

Emission,  519,  520. 

2.  Who  may  commit,  520. 
Boy  under  fourteen,  520. 

Ail  participating  regarded  as  principals, 
520. 

3.  Against  whom  offense  may  be  com- 

mitted, 520. 
With  reference  to  age,  520. 

4.  Indictment,  520,  521. 
Parties,  520. 

Necessary  averments,  520. 
Name  of  person  injured,  520. 
Averment  of  sex,  521. 
Description  of  female,  521. 
Charging  different  offenses,  521. 
When  barred,  521. 

5.  Evidence,  521-528. 

Of  prosecutrix  through  interpreter,  521. 
Proof  of  force,  521,522. 
Proof  of  resistance,  522. 
Proof  of  penetration,  522. 
Evidence  of  guilty  intent,  522,  523. 
Age  of  female,  523. 
Place  of  transaction,  523. 
Complaint  of  female,  523,  524. 


RAPE — continued. 

Reasons  for  delay  in  making  complaint, 
524. 

Reason  of  complaint,  524. 

Admissions  and  declarations  of  prose- 
cutrix, 524. 

Declarations  of  husband  of  prosecutrix, 
524. 

Presumptions,  524,  525. 

Bad  character  of  prosecutrix,  525,  526, 
527. 

Good  character  of  prosecutrix,  527. 

Character  of  defendant,  527. 

Identity  of  defendant,  527. 

Consent  of  female,  527. 

Weight  of  evidence,  527,  528. 

6.  Verdict,  528. 

Where  different  grades  of  offense  are 

charged,  528. 
For  lesser  offense,  528. 
For  different  offense,  528. 

7.  Assault  with  intent  to  commit  rape, 

528-533. 
(a)   What  deemed,  528,  529. 

Must  have  been  rape  if  the  purpose 
had  been  accomplished,  528. 

Intention  to  employ  force  requisite, 
528. 

Leaving  off  on  account  of  resistance, 
528. 

Consent  of  female,  529. 
(I))   Who  may  commit,  529. 

Boy  under  fourteen,  529. 

Person  standing  by,  529. 
(c)  Indictment,  529,  530. 

Description  of  female,  529. 

Must  cbarge  that  force  was  used,  529. 

Technical  averments,  529,  530. 

Unnecessarv  averments,  530. 
{d)  Evidence,' 5m-5Z2. 

Prosecutrix  need  not  be  a  witness,530. 

Proof  of  violence,  530. 

Proof  of  resistance,  530. 

Complaint  of  female,  530,  531. 

Declarations  of  female,  531. 

Appearance  of  female,  531. 

Proof  of  guilty  intent,  531. 

Character  of  prosecutrix,  531. 

Corroboration  of  charge,  531. 

Weight  and  sufficiency  of  proof,  531, 
532. 
(e)   Verdict,  532. 

Need  not  negative  higher  offense,  532. 
(/)  Punishment,  532. 

Under  former  statutes  in  relation  to 

RECEIVING  STOLEN  PROPERTY. 
1.  Offense  when  constituted,  532-534. 
What   constitutes   charge    of    conceal- 
ment, 532. 
Construction  of  statute,  533. 
What  is  a  receiving,  533. 
Possession  not  necessary,  533. 
Offense  may  I)e  committed  by  owner  of 
property,  533. 


TABLE   OF   TITLES  AND   SUBJECTS. 


XXXlll 


RECEIVING  STOLEN  PROF.— contimied. 

By  agent,  533. 

Where  there  is  a  pretense  of  agency, 
533,  534. 

Receiver  not  an  accessory,  534. 

The  thief  not  an  accomplice  of  the  re- 
ceiver, 534. 

Must  have  been  a  fraudulent  intent,  534. 

To  obtain  a  reward,  534. 

Need  not  have  been  an  expectation  of 
benefit,  534. 

2.  Indictment,  534-536. 
When  it  will  lie,  534. 
Description  of  j^roperty,  534,  535. 
Need  not  allege  value,  535. 
Averment  of  ownership  of  property,  535. 
Name  of  thief,  535. 

Unnecessary  averment,  535. 
Charging  offense  disjunctively,  535. 
Averment  of  intent,  535,  536. 
Compelling  prosecution  to  elect,  536. 

3.  Place  of  trial,  536. 

With  reference  to  the  county,  536. 
Where  the  goods  were  stolen  in  another 
State,  536. 

4.  Evidence,   536-539. 
Must  support  charge,  536. 
Admissions  and  declarations  of  defend- 
ant, 536,  537. 

Declarations  of  confederate,  537. 
Admissions  and  declarations  of  thief, 

537. 
Presumption  from  possession,  537. 
Proof  of  other  similar  acts,  537,  538. 
Proof  that  goods  were  bought  for  less 

than  they  were  worth,  538. 
Opportunity  to  commit  offense,  538. 
Presumption  from  conduct  of  accused, 

538. 
Proof  of  time  of  receiving  goods,  538, 

539. 
Testimony  of  accomplice,  539. 
Impeachment  of  witness  for  prosecution, 

539. 

5.  Charge  op  court,  539. 

Assuming  proof  of  guilty  knowledge, 
539. 

6.  Verdict  and  .judgment,  539. 
Where  there  is  a  separate  count  for  lar- 
ceny,  539. 

Need  not  name  thief,  539. 

Where    the    proof     differs     from     the 

charge,  539. 
Where  there  is  a  plea  of  guilty  of  part 
of  charge,  539. 
RECOGNIZANCE. 

See  Bail  and  recognizance. 
RELIGIOUS  MEETING,   DISTURBANCE 
OF. 

1.  Character  of  offense,  540, 

Is  indictable  at  common  law,  540. 
What  deemed  a  disturbance,  540. 
What  not  deemed  an  offense,  540. 

2.  Indictment,  540,  541. 
Averment  of  place,  540. 

D 


RELIGIOUS   M^^TINQ— continued. 
De.5cription  of  meeting,  540,  54L 
Description  of  disturbance,  541. 
3.  Evidence,  54L 

Proof  as  to  place,  54 L 
Proof  of  specific  acts,  541. 
Proof  of  disturbance  by  others,  541. 
Proof  of  character,  541. 
RESISTING  PROCESS. 

See  Officer  ;  Indictment,  sub.  37. 
REVENUE  LAW,  VIOLATION  OF. 
Indictment,   541. 
Burden  of  proof,  541. 
REVOLT. 

Restraint  of  master,  541. 
Attempt  to  commit,  541,  542. 
Proof  of  ownershijj  of  vessel,  542. 
RIOT. 

1.  What  constitutes,  542,  543. 
How  defined,  543. 

What  assemblage  requisite,  542. 
Acts  amounting  to,  542. 
By  trespassers,  542,  543. 
Destruction  of  one's  own  property,  543. 
Aiding  and  encouraging  others,  543. 
Neglecting  to  suppress,  543. 

2.  Indictment,  543,  544. 
Must  state  facts,  543. 

Must  charge  unlawful  assemblage,  543. 
Naming  the  defendants,  543. 
Description  of  propeiiy,  543,  544. 
Charging  violence  and  terror,  544. 
Averment  of  purpose,  544. 
Indorsement  of  name  of  prosecutor,  544. 

3.  Trial,  544. 

Defendants  not   entitled  to    be    tried 
separately,  544. 

4.  Evidence,  544,  545. 

Order  and  burden  of  proof,  544. 
Proof  of  possession,  544,  545. 
Sufficiency  of  proof,  545. 

5.  Verdict,  545. 

Where  the  charge  is  for  riot  and  as- 
sault, 545. 
ROBBERY. 

1.  What  constitutes,  545-547. 
At  common  law,  545. 

Need  not  have  been  a  putting  in   fear. 

545. 
Must  have  been  force  or  intimidation, 

545,  540. 
Construction  of  act  of  Congress,  546. 
Threatening  to  accuse  of  crime,  546. 
Removal  of  property,  546. 
Property  need  not  be  taken  from  owner, 

546. 
Must  be  a  felonious  intent,  546,  547. 
All  concerned,  deemed  equally  guilty, 

547. 

2.  Indictment,  547. 
Averment  of  force,  547. 

Must  charge  a  taking  from   the  person, 

547. 
Averment  as  to  place,  547. 
Descri})tion  of  proi)erty  taken,  547. 


XXXIV 


TABLE   OF   TITLES   AND   SUBJECTS. 


ROliBVMY— continued. 

Averment  as  to  ownersbijj  of  in-operty, 
547. 

3.  Evidence,  547-549. 
Proof  of  violence,  547. 
Proof  of  putting  in  fear,  547. 
Proof  of  concert  of  action,  548. 
Proof  as  to  place,  548. 

Proof  as  to  property  taken,   548. 
Declarations  of  party  injured,  548. 
Suspicious  conduct  of  accused,  548. 
Attempt  of  prisoner  to  escape,  548. 
Situation  of  party  injured,  548,  549. 
Testimony  required  to,  prove  coiyus  de- 

lidi,  549. 
Determination  of  felonious  intent,  549. 

4.  Verdict,  549. 

Cannot  find  defendant  guilty  as  an  ac- 
cessory, 549. 
May  be  for  assault  and  battery,  549. 
See  Larceny. 
SABBATH. 

See  Sunday. 
SEARCH    WARRANT. 
Can  only  be  issued  upon  oath  or  affirm- 

atiou,  549. 
Must  conform  to  statute,  549. 
Description  of  place  to  be  searched,  549, 

550. 
Right  of  officer  to  enter  apartments,  550. 
Force  and  effect  of  officer's  return,  550. 
See  Officer. 
SEDUCTION. 

1.  Offense,  when  committed,  550,  551. 
What  meant  by,  550. 

Must  be  promise  or  deception,  550. 
Promise  may  be  conditional,  550. 
Need  not  be  pregnancy,  550. 
Chastity  of  female,  550,  551. 
Intention  of  defendant,  551. 
Who  may  commit  the  oft'ense,  551. 
By  married  man,  551. 
Custody  of  female,  551. 
Statute  of  limitations,  551. 

2.  Indictment,  551,  553. 

Must  aver  that  female  was  seduced,  551, 

552. 
Need  not  allege  a  valid  promise,  552. 

3.  Evidence,  552,  553. 

Proof  of  promise  of  marriage,  552. 

Corroboration  of  prosecutrix,  552. 

Proof  of  repetition  of    oflFense  not  ad- 
mis-siljle,  552. 

Moral  character  of  prosecutrix,  552,553. 

Interrogation  of  prosecutrix  as  to  pre- 
vious acts,  553. 

Testimony  to  impeach  prosecutrix,  553. 

Proof  of  good  character  of  i^rosecutrix, 
553. 
See  Abduction  ;  Incest  ;  Lascivi- 

OUSNESS. 

SELF-DEFENSE. 

See  Assault  and  battery  ;  Homi- 
cide. 


SENTENCE. 

Duty  of  court  to  pronounce,  553,  554. 

Single  judge  may  pass,  554. 

Delaying  sentence,  554. 

Original  indictment  not  necessary,  554. 

When  accused  must  be  present,  554,  555. 

When  prisoner  need  not  be  present.  555. 

Asking  prisoner  if  he  has  anvthing  to  sav, 
555. 

When  prisoner  need  not  be  interrogated, 
555,  556. 

Upon  overruling  demurrer,  556. 

Under  pleas  of  former  conviction  and  ac- 
quittal, 556. 

In  case  of  escape,  55G. 

Where   defendant   violates    condition    of 
pardon,  556. 

In  case  of  repeal  of  statute,  556. 

Under  joint  indictment,  556. 

Under    indictment     containing     several 
couiits,  556,  557. 

Under  indictment  charging   distinct  of- 
fenses, 557. 

Under  two  indictments,  557. 

Where   there   are   distinct   punishments, 
557. 

Under  verdict  finding  less  than  amount 
charged,  557. 

Under    statute    punishing    common   law 
oft'ense,  557. 

Before  expiration  of  previous  sentence,  557. 

For  successive  terms  of  imprisonment,  557. 

To  additional  punishment,  558. 

Designating  time  of  imprisonment,  558. 

Directiug   mode   and   place  of  imprison- 
ment, 558. 

Designating  time  of  execution,  558. 

Cannot  be  upon  facts  agreed  upon,  558, 
559. 

Must  not  be  conditional,  559. 

Amendment  of  sentence.  559,  560. 

Presumption  in  favor  of  sentence,  560. 

Execution  of  sentence,  560,  561. 

Effect  of  sentence  on  rights  of  prisoner, 
561. 

Assignment  of  error  upon,  561. 

Evidence  in  mitigation  of,  561. 
SHOW. 

See  Theatrical  performance. 
SLAVE  TRADE. 

1.  UJjlawful  participation  in,  561,562. 
How  the  slave  trade  is  regarded,  561. 
Acts  of  Congress  in  relation  to,  561,  562. 
State  courts  have  not  jurisdiction,  562. 

2.  Seizure  and  forfeiture  of  vessel, 

562,  563. 
When  vessel  may  be  seized,  562. 
When  forfeiture  of  vessel  incurred,  562, 

563. 
Remission  of  forfeiture,  563. 
Disposal  of  negroes,  563. 
Effect  of  taking  negro  to  Africa,  563. 

3.  Indictment,  563,  564. 
Against  master  of  vessel,  563. 
Joinder  of  offenses,  563. 


TABLE   OF   TITLES  AND   SUBJECTS. 


XXXV 


SLAVE   TRA'D'E— continued. 
Averment  of  intent,  564. 
4.  Evidence,  564,  565. 

Ownership  and  equipment  of  vessel,  564. 
Procurinj^  negroes  with  intent  to  ruuke 

them  slaves,  564,  565. 
Burden  of  proof,  565. 
See  Piracy. 
SMUGGLING. 

What  deemed,  565. 

See  Revenue  law,  violation  of. 
SODOIVIY. 

When  committed,  565. 
Indictment,  565. 
Testimonv  of  accomplice,  565. 
SPIRITUOUS  LIQUORS,   SALE  OF. 

1.  Under  what  circumstances  illegal, 

565-568. 
Constitutionality  of  statutes,  565,  566. 
Construction  of  city  charter,  566. 
What  deemed  spirituous  liquor,  566. 
Sale  of  imported  liquor,  566. 
Unlawful  granting  of  license,  566. 
■  Protection  afforded  by  license,  566. 
License  only  good  for  a  single  place, 

566,  567. 
Validity  of  license,  567. 
What  constitutes  a  keeping  of  liquors  for 

sale,  567. 
Sale  of  liquor  for  medicinal  purposes,567. 
What  constitutes  a  sale,  567. 
Place  of  sale,  567,  568. 
Sale  to  several   persons   at    the    same 

time,  568. 
Sale  by  clerk  or  agent,  568. 

2.  Complaint,  568,  569. 
Averment  of  time,  568. 
Description  of  place,  568. 

Charging  the  offense  in  the  alternative, 

568. 
Duplicity  in,  568,  569. 
Unnecessary  averments,  569. 
Conclusion,  569. 

3.  Indictment,  569-572. 

'     Not  barred  by  previous  conviction,  569. 
Not  taken  away  by  action,  569. 
Joinder  of  parties,  569. 
Allegation  of  time,  569. 
Charging  sale,  570. 
Description  of  liquor.  570. 
Averm(mt  of  place  of  sale,  570. 
Naming  person  to  whom  sale  was  made, 

570,571. 
Charging  distinct  sales,  571,  572. 

4.  Evidence,  572-577. 

Proof  of  maintaining  building  for  sale 

of  liquor,  572. 
Offer  to  sell  need  not  be  shown,  572. 
Giving  liquor  away,  572. 
Sale  by  servant  or  agent,  572. 
Sale  to  agent,  572. 
Sale  to  minor,  572. 
Proof  that  liquor  sold  was  intoxicating, 

572,  573. 
Quantity  of  liquor  sold,  573. 
Person  to  whom  sale  was  made,  573. 


SPIRITUOUS  LIQUORS,  &c.— continued. 
Time  of  sale,  573. 
Place  of  sale,  573,  574. 
Proof  of  drinking,  574. 
Proof  of  distinct  violations  of  law,  574. 
Proof  that  defendant  is  common  seller, 

575. 
Proof  of  sale  by  partners,  575. 
Sale  by  married  woman,  575. 
Sale  to  common  drunkard,  575,  576. 
Proof  of  second  conviction,  576. 
Burden  of  proof  on  defendant,  576. 
Proof  in  justification,  576. 
Irrelevant  testimony,  578,  577. 

5.  Verdict,  577. 

In  case  of  several  acts  of  sale,  577. 
Discharge  of  defendant,  577.  • 

6.  Seizure   and   condemnation   of    li- 

quors, 577,  578. 
Course  of  procedure,  577. 
Subject  of  inquiry,  577. 
Proof  of  possession  and  destruction  of 

liquor,  578. 
Proof  of  ownership  of  liquor,  578. 
Warehouseman's  lien,  578. 
Officer's  return,  578. 
See  License. 
STATUTES. 

How  proved,  578. 
Unconstitutionality  of,  578,  579. 
When  deemed  constitutional,  579. 
When  deemed  ex -post  facto,  579,  580. 
When  not  regarded  as  ex  j)ost  facto,  ~)S0. 
When   doctrine   in  relation  to  ex  post 

facto  law  not  applicable,  580. 
Effect  of  repeal  of  statute,  580,  581. 
Revival  of  statute,  581. 
Operation  of  statute  of  limitations,  581. 
Statute  imposing  no  penalij%  581. 
In  relation  to  fieedmen,  581. 
Creating  and  regulating  courts,  581. 
City  ordinances,  581. 
Effect  of  statute  imposing  penalty,  581, 

582. 
Legalizing  obstruction  of  highway,  582. 
General  rule  of  construction,  582. 
When  to  be  liberally  construed,  582. 
Meaning  of  Avord  offender,  582. 
When  it  includes  persons  not  named  in 

it,  582. 
Construction  in  case  of  repeal,  582,583. 
SUBORNATION  OF  PERJURY. 

See  Perjury  and  subornation  of 

I'EUJURY. 

SUMMARY  CONVICTION. 

Is  regulated  by  statute,  583. 

When  statute  to  be  strictly  followed, 583. 

When  it  will  be  sustained,  583 

When  statute  in  relation  to  is  void,583. 
SUNDAY. 

Right  to  enforce  the  observance  of,  583. 

Construction  of  statute,  583. 

When  labor  on,  not  proiiibited,583,  584. 

Work  of  necessity,  5M4. 

Complaint,  584. 

Indictment,  584. 


XXXVl 


TA.BLE  OF  TITLES  AND  SUBJECTS. 


SUNDAY— continued. 

What  evidence  sufficient,  584. 

Reasonable  doubt,  584. 

Is  not  a  day  of  the  term  of  a  court,  584. 
See  Religious  meeting. 
THEATRICAL  PERFORMANCE. 

Indictment  for  unlawful  exhibition, 585. 
THREATENING  TO  ACCUSE  OF  CRIME. 

What  constitutes,  585. 

What  does  not  amount  to,  585. 

Indictment,  585,  586. 

Evidence,  586. 
See  Libel. 
TOLL. 

Indictment  for  exacting,  586. 
TREASON. 

1.  What  constitutes,  586,  587. 
Entering  the  service  of  the  enemy,  586. 
Persuading  another  to  join  the  enemv, 

586. 
Restoring  prisoners,  586. 
Resisting  act  of  Congress,  586. 
What  deemed  a  levying  of  war,  587. 
Who  regarded  traitors,  587. 
What  not  deemed  treason,  587. 

2.  Indictment,  587. 

Need  not  be  specific  as  to  number  en- 
gaged, 587. 
Must  allege  nature  of  intelligence  sent, 
587. 
'3.  Jury,  587. 

Composition  of,  587. 
4.  Evidence,  587,  588. 
Place  of  offense,  587. 
Presimiption  from  authority  of  defend- 
ant, 587. 
Proof  of  distinct  offense,  587. 
Admissions  and  declarations  of  defend- 
ant, 587,  588. 
Defendant  as  a  witness,  588. 
TRESPASS. 

Has  a  technical  meaning,  588. 
Invading  another's  premises,  588. 
Taking  personal  property,  588. 
Destruction  of  personal  projierty,  588. 
Right  of  entry,  588. 
Right  to  expel  intruder,  588,  589. 
Right  of  landlord  to  resume  possession, 

589. 
Forcibly  retaking  personal  property,  589. 
When  an  indictment  will  lie,  589. 
Averment  of  act  constituting  offense,  589. 
Description  of  place,  589. 
Trial,  589. 
Evidence,  590. 

See  Forcible  trespass. 
TRIAL. 

1.  Matters  preliminary  to, 590-593. 
Right  of  prisoner  to  speedy  trial,  590. 
Where  offense  committed  on  vessel  is  to 

be  tried,  590. 
Summoningjury  and  filing  jury  lists,590. 
Serving  prisoner  with  copy  of  indict- 
ment and  venire,  590. 
Waiver  of  right  to  copy  of  indictment, 
590,591. 


TRIAL — continued. 

Employment  of  counsel  by  prosecution, 

591. 
Compelling  bill  of  particulars,  591. 
Release  of  prisoner  for  want  of  trial,  591. 
Moving  case  for  trial,  591. 
Separate   trial  in  discretion  of  court, 

591. 
Arraignment  of  prisoner,  591,  593. 
Prisoner  standing  mute,  593. 
Waiver  of  arraignment,  593. 
Plea  in  abatement,  593. 
Plea  of  non-identity  593,  593. 
Proof  of  identity,  593. 
Replication  to  plea,  593. 
Pica  of  guilty,  593. 

Determination  of  question  as  to  insan- 
ity of  prisoner,  593. 
Plea  of  not  guilty,  593. 
Waiver  of  objection  to  grand  juror,  593. 
Refusal  to  plead,  593. 
Remanding  prisoner,  593. 
3.  Impaneling  jury,  593,  604. 
(a)  Excusing  jurors,  593. 

Authority  of  court,  593. 
{h)  Of  challenges  in  general,  593-596. 
In  United  States  courts,  593. 
Challenge  to  the  array,  593,  594. 
Order  of  challenge  to  the  polls,  594. 
Challenge  in  case  of  joint  defendants, 

594. 
Right  to  interrogate  juror,  594. 
Mode  of  determining  challenge  to  the 

polls,  594,  595. 
Trial  of  challenge  by  court,  595. 
Consent  that  court  try  challenge  not 

revokable,  595. 
Triers  how  sworn,  595. 
Written    instructions    to    triers    not 

])roper,  595. 
Testimony  on  trial  of  challenge,  595. 
Juror  not  bound  to  criminate  himself, 

595. 
Examination  of  witnesses,  595. 
Prisoner  bound  by  his  challenge,  595. 
Challenge    alter    previous   challenge 

overruled,  595. 
Waiver  of  challenge,  595,  596. 
When  challenge  too  late,  596. 
Decision  of  court.  596. 
Review  of  decision,  596. 
Right  of  court  to  set  juror  aside  after 
he  is  sworn,  596. 
(c)   Grounds  of  princi2Ml  challenge  to  the 
jjolls,  596-600. 
That  a  juror  is  not  qualified  to  serve, 

596,  597. 
That  a  juror  is  of  kin  to  the  prisoner, 

597. 
Conscientious  scruples  of  juror,  597. 
Competency  of  juror  who  is  opposed 

to  capital  punishment,  597,  598. 
Prejudice  of  juror  against  a  certain 

class,  598. 
Opinion  of  juror  as  to  guilt  or  inno- 
cence of  prisoner,  598,  599. 


TABLE   OF  TITLES  AND   SUBJECTS. 


XXX  Vll 


TRIAL — continued. 

Opinion  in  order  to  exclude  must  be 
absolute,  599,  600. 

Ojjinion  which  is  not  relative  to  the 
issue,  600. 

Juror  member  of  grand  jury,  600. 

Juror  ssYorn  on  previous  trial,  600. 

Juror  a  witness  on  former  trial,  600. 
(<?)  Grounds  of  challenge  to  the  polls  for 
f'cor.  600-602. 

Unsettle:!  opinion,  600,  601. 

Opinion  founded  on  report,  601. 

Opinion  of  prisoner's  character,  601. 

Opinion  derived  from  proceedings  in 
court,  601,  603. 

Statement  of  juror  that  he  is  impar- 
tial, but  has  a  fixed  opinion,  602. 
(e)  Peremptory  challenge,  602,  003. 

When  to  be  made,  602. 

Questions  upon,  602. 

Effectofperemptoi7challenge,602,603. 

Waiver  of  peremptory  challenge,  603. 
(/)  Completion  of  jury,  603,  604. 

Number  of  jurors  required  in  case  of 
felony,  603. 

When   less   than   twelve  jurors  per- 
mitted, 003,  604. 

3.  Initiatory  proceedings  in  the  case, 

604-607. 
Swearing  jury,  604. 
Form  of  oath  to  jury,  604. 
Reswearing  of  jury  by  consent,  604. 
Recital  in  the  record  that  the  jury  were 

sworn,  604,  60o. 
Amendment  of  minutes  as  to  swearing 

of  grand  jury,  605. 
Presence  of  accused  when  necessar3-,605. 
Presumption  as  to  the  presence  of  the 

accused,  005. 
Prisoner's  right  to  be  present  cannot  be 

waived,  005. 
Temporary  absence  of  prisoner  not  im- 
proper, 605. 
Removal  of  prisoner  from    court  room 

for  interrupting  counsel,  605,  600. 
When  presence  of  accused  not  required, 

606. 
Presumption  as  to  demand  for  trial,  fiOG. 
Continuance  of  cause  need  not  be  shown, 

606. 
Death  of  prosecutor,  606. 
Proceedings  upon  quashing  indictment, 

606. 
Effect  of  dismissal  of  sufficient  indict- 
ment, 606. 
When  prosecution  compelled  to  elect,60G. 
Accused  not  confined  to  one  of  several 

pleas,  606. 
Retrial   after   conviction   upon   ow   of 

several  counts,  606. 
Issue  on  special  plea  to  be  tried  first, 

606,  607. 

4.  Proceedings  in  the  conduct  op  the 

CASE,  607-624. 
(a)  Introduction  of  evidence,  007-609. 
What  notice  sufficient,  607. 


TRIAL — continued. 

Objection   that  names   of    witnesses 
have  not  been  furnished,  607. 

Requiring  counsel  to  state  what  they 
expect  to  prove,  607. 

Inquiry  as  to  competency  of  proof,  607. 

When  witness  must  be  objected  to, 
607. 

Objection  to  evidence  how  made,  607. 

Objection  to  mode  of  proof,  607,  608. 

Admitting   evidence   without   objec- 
tion, 608. 

Answer  not  responsive  to  question, 
608. 

Witness     testifying    without    being- 
sworn,  608. 

Evidence  given  in  absence  of  judge, 
608. 

Admission  of  hearsay,  608. 

Rule  as  to  proof  of  part  only  of  trans- 
action, 608. 

Jury  viewing  premises,  608. 

Purpose  for  which  premises  may  be 
viewed,  608. 

Latitude   of    proof    allowed    one   of 
several  defendants,  608. 

When  testimony  should  be  stricken 
out,  609. 

Admitting    testimony   after    case    is 
closed,  609. 
(J)  Ruling  of  court,  609-612. 

As  to  intercourse  with  the  bench,  609. 

Refusing  to  hear  argument,  609. 

Giving  tlie  prosecution  the  benefit  of 
legal  doubts,  609. 

Judge  expressing  an  opinion  as  to  the 
evidence,  609,  610. 

Instructingjury  to  disregard  evidence, 
610. 

Admitting    evidence   previouslv   ex- 
cluded, 610. 

Setting  aside  juror,  610,  611. 

Discharging  jury,  611,  612. 
(c)  Deportment  of  the  jury  while  the  case 
is  before  them,  612. 

Juror  leaving  box,  612. 

Juror  talking  with  bystander,  612. 

Separation  of  jurj',  612. 
{d)  Smmning  up  of  counsel,  612,  613. 

Right  to  open  and  close,  612. 

Judge    directing    as    to   remarks   of 
counsel,  612,  613. 

Reading  of  books  by  counsel,  613. 

Counsel  commenting  upon  conduct  of 
witness,  613. 

Correction   by  counsel    of    misstate- 
ments of  adversary,  613. 
{e)  Charge  (f  judge,  613-624. 

To  be  given  when  the  case  is   sub- 
mitted, 613. 

How  to  be  construed,  613. 

Must  embrace  whole  case.  613,  614. 

To  be  confined  to  actual  facts,  614. 

Should   present   the    case   in   all   its 
aspects,  614. 

Omissions  of  judge,  614. 


XXXVlll 


TABLE   OF   TITLES  AND   SUBJECTS. 


TRIAL — continued. 

Attention  of  court  must  be  called  to 
omission,  614. 

Refusing  to  charge  as  to   reasonable 
doubt,  614,  6lo. 

Refusal  to  charge  as  to  eflfect  of  false 
testimony,  615. 

Refusal  to  instruct  as  requested,  G15. 

When  request  to  charge  is   only  in 
part  correct,  615. 

Refusing  to  charge  the  same  proposi- 
tion over  again,  615. 

Refusing  to  charge  abstract  proposi- 
tion, 615,  616. 

Instruction  need  not  be  given  as  to 
what  is  obvious,  616. 

Charging  as  to  probabilities,  616. 

Presenting  to  jury  considerations  of 
public  policy,  616. 

Charging  as  to  punishment,  616,  617. 

Referring  jury  to  their  personal  ex- 
])t'rience,  617. 

Calling     attention    to    character    of 
Avound,  617. 

Charging  erroneous  legal  proposition, 
617. 

"Where  charge  though  erroneous  can 
do  no  harm,  617. 

Charging  as  to  presumptions,  617. 

Instruction  based  on  insufficient  proof, 
018. 

Judge  misleading  jury,  618. 

Charging  as  to  reasonable  doubt,  610. 

Referring  question  of  law  to  jury,  611), 

Requiring  the  jury  to  receive  the  law 
from  the  court,  619. 

Charging  as  to  the  degree  of  guilt,61'J. 

Judge  improperly  commenting  on  tlie 
evidence,   619,  620. 

Judge  assuming  the  proof  of  fticts. 
620. 

Court    improperly    determining    the 
weight  of  evidence.  620,  621,   622. 

Charging  as  to  character  of  evidence, 
623. 

Judge  qualifying  his  comments  on  the 
evidence,  623. 

Calling  attention  of  jury  to   contra- 
diction in  testimony,  623. 

Charging  as   to  construction  of  evi- 
dence, 623. 

Charging     as    to    conclusiveness    of 
proof,  623,  624. 

Instructing  jury  as  to  interpretation 
of  charge,  624. 

Charging  jury  as  to  their  duty,  624. 

Correction  of  charge,  624. 

Waiver  of  objection  to  charge,  624. 

Presumption  in  favor  of  charge,  624. 

Time  of  excepting  to  charge,  624. 
5.  Proceedings  subsequent  to  submit- 
ting CASE  TO  JURY,  624-630. 
Jury  taking  out  with  them,  or  sending 

for  books,  624,  025. 
Jury  taking  out   with  them  evidence, 

625,  626. 


TRIAL — continued. 

Jurv  procuring  a  copy  of  the  instruc- 
tions, 626. 

Officer  in  jury  room.  626. 

Judge  communicating  with  jury  pri- 
vately, 020. 

Jury  returning  into  court  for  informa- 
tion, 626,  627. 

Persons  talking  to  jurors,  627. 

Improper  separation  of  jury,  627. 

When  consent  to  separation  of  jury  pre- 
sumed, 627. 

Right  of  court  to  discharge  jury,  627, 
028. 

When  discharge  of  jury  equivalent  to 
acquittal,  028. 

Expiration  of  term  of  court  before  ver- 
dict, 029. 

Prisoner  to  be  present  when  the  verdict 
is  rendered,  629. 

Refusal  of  court  to  interrogate  jury,  629. 

Polling  jury,  629. 

Verdict  must  be  freely  rendered,  629, 
630. 

Reconsideration  of  verdict,  630. 

Amendment  of  verdict,  630. 

When  too  late  to  change  verdict,  630. 

0.  Record  op  conviction,  030,  631. 
What  it  ought  to  contain,  630,  631. 

See  Bill  op  exceptions;  Certi- 
orari ;  Contempt  ;  Continu- 
ance ;  Evidence  ;  Former  ac- 
quittal or  conviction  ;  In- 
dictment; Judgment;  Juris- 
diction ;  Jury  ;  New  trial  ; 
Nolle  prosequi  ;  Sentence  ; 
Venue,  change  of  ;  verdict  ; 
Witness  ;  Writ  of  error. 
UNWHOLESOME    PROVISIONS,    SALE 

OF. 

1.  When  seller  liable,  631. 
What  constitutes  the  offense,  631. 

2.  Indictment.  031,  032. 
Averment  of  sale,  031. 

Averment  of  guiltv  knowledge, 031,032. 
3  Evidence,  032. 

Proof  of  sale  in  market  sufficient,  632. 

Proof  that  servant  had  possession  for 
sale,  032. 

Proof  of  sale  to  wife,  632. 

Testimony  of  experts,  032. 

Proof  of  guiltv  knowledge,  632. 
USURY. 

When  committed,  633. 

What  constitutes  distinct  offenses,  633. 

Description  of  contract,  633. 

Averment  of  place,  033. 

Averment  of  intent,  033. 

Proof  of  time  of  agreement,  033. 
VAGRANT. 

Who  deemed,  033. 

Indictment,  633,  634. 

Record  of  conviction,  634. 

Inquiry  on  habeas  corpus,  034. 
VENUE,  CHANGE  OF. 

Grounds  of,  ()34. 


TABLE   OF   TITLES   AND   SUBJECTS. 


XXXIX 


VENUE,  CHANGE   OF— continued. 

Wheu  defeudtmt  entitled  to,  as  of  right, 

634. 
In  case  of  several  defendants,  634,  635. 
Bj'   court  to  which  indictment    is    re- 
moved, 635. 
Place    to    which    the    trial  should  be 

changed,  635. 
Order  of  court  and  entry  of  record,  635. 
Presumptions  in  relation  to,  635. 
Transcript  of  record,  635. 
Verification  of  clerk's  certificate,  036. 
Presumption   from    clerk's    certificate, 

636. 
Certiorari,  636. 

Jurisdiction  of  court  must  be  showu,636. 
Trial  to  be  had  on  transcript,  636. 
Prisoner  need  not  be  arraigned,  630. 
Disposal  of  indictment,  636. 
Remedy  for  denial  of  motion,  636. 

See  Indictment,   tit.  3;   Jurisdic 
TION,  tit.  2. 
VERDICT. 

1.  Right  and  duty  of  juiiy  in   deter- 
mining, 636-638. 
Jury  to  decide  as  to  credibility  of  wit- 
ness, 636,  637. 
Questions  of  fact  to  be  determined  by 

jury,  637. 
Jury  not  to  decide  upon  their  private 

knowledge,  637. 
How  far  jury  judges  of  the  law, 637,638. 
When  court  may  direct  a  verdict,  638. 
Determining  verdict  by  experiment.  638. 
Jury  entertaining  doubt,  638. 
3.  Nature  and  requisites,  638-641. 
(a)  General  verdict,  638-641. 
Must  respond  to  charge,  638. 
Under   indictment  charging  distinct 

offenses,  638,  639. 
For  part  of  offense,  639. 
For  offense  consisting  of  diftereut  de- 
grees, 639,  640. 
Under  indictment  containing  several 

counts,  640. 
Under    indictment    against    several, 

640,  641. 
Need  not  find  malice,  641. 
Must  be  oral,  641. 
Sealed  verdict,  641. 
Recommendation  of  prisoner  to  mer- 
cy, 641. 
(h)  Special  rer diet,  641. 
Must  be  definite,  641. 
Must  ascertain  facts,  641. 
Must  find  that  offense  was  committed 

in  the  county,  041. 
Consequences  of  being  set  aside,  641. 

3.  How   RECORDED,    641. 

Must  be  in  English,  641. 

4.  Validity,  641,  042. 
Must  be  delivered,  641. 

Must  have  been  arraignment  and  plea, 

641,  043. 
Mistaking  name  of  accused,  642. 
Effect  of  misconduct  of  the  jury,  648. 


YERBICT— continued. 

Jurors  not   permitted  to  impeach  ver- 
dict, 642. 
Testimony  of  jurors  to  sustain  verdict, 
642. 
5.  When  evidence,  642. 

Under  plea  of  former  acquittal,  642. 
On  trial  of  principal  in  second  degree, 
642. 
See  Judgment  ;  Trial.  As  to  settihcj 
aside  verdict,  see  New  trial.  For 
verdict  in  the  several  offenses,  see  the 
titles  of  those  offenses. 
VESSEL. 

Adding  to  equipment,  642. 
Destruction,  642. 
VOTING. 

1.  Disfranchisement   of    citizen,  642, 

643. 
On  account  of  desertion,  642,  643. 
By  striking  name  from  list  of  voters,  643. 

2.  Illegal  voting,  643-645. 
(a)  Offense  in  general,  643. 

How  regarded,  643. 

What  constitutes,  643. 

Voting  at  illegal  election,  643. 

Aiding  and  abetting  illegal    voting, 
643. 

Preventing  persons  from  voting,  643. 
(5)  Indictment,  643,  644. 

Must  state  grounds  of  defendant's  dis- 
ability, 643. 

Unnecessary  averments,  643,  644. 

Form  of  indictment  for  double  voting, 
644. 
(c)  Evidence,  644,  645. 

In  behalf  of  prosecution,  644. 

For  defense,  644,  645. 

3.  Betting  at  election,  645. 
What  deemed  a  bet,  645. 
Wheu  not  indictable,  645. 
When  prosecution  barred,  645. 
Indictment  and  evidence,  645. 
Decision  of  inspectors  of  election  as  to 

bet,  645. 
See  Bribery;  Gaming. 
WARRANT. 

Right  and  duty  of  magistrate  to  issue, 

645,  646. 
Statement  of  time  of  issuing,  646. 
Need  not  contain  facts  disclosed  to  mag- 
istrate, 646. 
Necessary  averments,  640. 
Need  not  set  out  the  evidence,  646. 
Must  name  the  party  to  be  arrested,  640. 
How  to  be  directed,  046. 
Directing  to  person  not  an  officer,  646. 
Substitution  of    person   not  an  officer, 

646. 
Command,  646. 
Must  be  under  seal,  646,  647. 
To  be  shown  and  explained  to  accused, 
647. 

See  Arrest;     Officer;     Search 
warrant. 
WEAPONS.     See  Concealed  weapons. 


xl 


TABLE  OF  TITLES  AIJD   SUBJECTS. 


WEIGHTS  AND  MEASURES. 

Fraud  in  the  use  of,  647. 
WITNESS. 

1.  Persons  who  are  competent  or  in- 

competent TO  testify,  C47-653. 

In  general,  647. 

Yoiin<T  child,  647,  648. 

Lunatic,  648. 

Effect  of  returning  to  court  room  in  vi 
olation  of  order  of  court,  648. 

Competency  not  affected  by  religion- 
belief,  648. 

Persons  interested,  648. 

Prisoner's  counsel,  648. 

Prosecutor,  648. 

Informer,   648,  649. 

Accomplice,  649. 

Accomplice  not  entitled  to  favor,  649. 

Co-defendant,  649,  650. 

Defendant  testifying  in  his  own  behalf, 
650. 

Husband,  650,  651. 

Wife  testifying  for  or  against  husband. 
651. 

Wife  of  accomplice,  651. 

Wife  of  co-defendant,  651,  652. 

Convicted  criminal,  652. 

Member  of  court,  652. 

Juror  and  grand  jurors,  652. 

Persons  incompetent  by  statute,  652, 653. 

Expert,  653. 

Interpreter,  653. 

2.  Procuring  attendance,  653. 
When  prisoner's  witnesses  are  to  be  pro- 
cured by  prosecution,  653. 

Attachment  against  witness,  653. 
Keeping  witness  away,  653. 

3.  Introducing,  653,  654. 

Calling  witness  is  in  the  discretion  of 

the  court,  653,  654. 
Administering  oath,  654. 

4.  Examination,  654-660. 
(a)  In  general,  654-657. 

Right  of  court  to  control  examination 

of  witness,  654. 
Objecting  to  witness,  654. 
Leading  questions,  654,  655. 
Witness  refreshing  his  memory,  655. 
Privileged  communications,  655. 
Answer  tending  to  criminate, 655, 656. 
Answer  tending  to  disgrace,  656,657. 
(h)  Attacking  credibility  of  icitness,  657- 

659. 
Value  of  affirmative  testimony,  657. 
Contradictoiy  statements  of  witness, 

657,  658. 
Testimony  of  defendant  may  be  im- 
peached, 658. 
Showing  that  witness  is  interested, 

658. 
Party  may  not    contradict   his    own 

witness,  658. 
Showing  hostility  of  witness,  658. 
Showing   defect  of   religious    belief, 

658. 


WITNESS— c<>«<m?<e^. 

Showing  intoxication  of  witness,  658. 

Attacking  character  of  witness.  658, 
659. 

Method  of   impeaching  character  of 
witness,  659. 
(c)  Sustaiimig  credibility  of  witness,  659- 
660. 

Character  of  witness  must  have  been 
first  assailed,  659,  660. 

Who  may  testify  as  to  character  of 
Avitness,  660. 

Negativing  imputed  hostility  of  wit- 
ness, 660. 

Corroborating  testimony  of  witness, 
660. 

Credibility  of  witness  to    be    deter- 
mined by  jury,  660. 
See  Evidence  ;  Trial. 

WRIT  OF  ERROR. 

1.  When  it  will  lie,  661. 

Must  have  been  a  final  judgment,  061. 
What  deemed  a  judgment,  661. 
In  case  of  decision  on  demurrer,  661. 
Exception  must  have  been  taken,  661. 
Objection  once  raised,  need  not  be  re- 
newed, 661. 
Not  taken  away  by  appeal,  661. 
In  behalf  of  prosecution,  661. 

2.  When  it  will  lie,  662. 
In  case  of  acquittal,  662. 

Where  the  decision  is  on  a  question  of 

practice,  662. 
In  case  of  objection  to  evidence,  662, 
Irregularities  of  jury  not  ground  for,  662. 
In  case  of  discharge  of  jury,  662. 

3.  Proceedings  in  obtaining,  662,  663. 
In  case  of  several  defendants,  662. 
Application  for,  how  made,  662. 

By  whom  allowed,  662. 

Stay  of  proceedings,  662,  663. 

4.  What  to  contain,  663. 
Command,  G63. 

5.  Return,  663. 

What  brought  up  by,  663. 

Presumption  that  prisoner  was  present 
during  the  trial,  663. 

Must  state  that  prisoner  was  interro- 
gated, 663. 

Expunging  interpolated  matter,  663. 

6.  Hearing,  663-665. 

Accused  need  not  be  present,  663,  664. 

Not  to  be  had  on  reporter's  minutes,664. 

Confined  to  questions  of  law,  664. 

Special  causes  not  available  under  gen- 
eral assignment,  664. 

Burden  of  proof,  664. 

Proceedings  in  court  below  presumed 
regular,  664. 

Evidence  in  court  below  presumed  suf- 
ficient, 664. 

Error  relieved  against,  notwithstanding 
no  exception  was  taken,  664,  665. 

Possibility  of  injury  ground  of  relief,665. 
See  Appeal  ;  Bill  of  exceptions. 


UNITED  STATES  CRIMINAL  DIGEST. 


UNITED   STATES  CRIMINAL  DIGEST. 


Qlbatnucut-|)li;a  in. 

1.  When  proper. 

2.  Validity. 


1.  When  proper. 

1.  Pendency  of  indictment.  The  pend- 
ency of  one  indictment  is  ground  for  a  plea 
in  abatement  to  another  indictment  for  the 
same  cause.  Com.  v.  Drew,  3  Cush.  279. 
But  see  Austin  v.  State,  12  Mo.  393. 

2.  Omission  by  justice.  Where  a  person 
was  committed  for  a  secret  assault,  and  the 
justice  did  not  insert  in  his  certificate  that 
the  complainant  had  sworn  that  he  "was 
wounded,  and  shown  his  wounds,  it  was 
held  that  this  should  be  j^Ieaded  in  abate- 
ment.    Northrup  v.  Brush,  Kirby,  108. 

3.  Misnomer.  A  misnomer  of  the  sur- 
name or  christian  name  may  be  cause  for  a 
plea  in  abatement.  Lynesv.  State,  5  Porter, 
236;  Com.  v.  Dockham,  Thach.  Crim.  Cas. 
238. 

4.  Where  the  indictment  was  against 
William  Gabe,  alias  Santa  Anna,  and  there 
was  a  motion  to  quash  on  the  ground  that  a 
second  christian  name  was  alleged  under  an 
alias  dicttis,  it  was  held  that  this  was  matter 
for  plea  in  abatement,  and  not  for  a  mere 
motion.     Gabe  v.  State,  1  Eng.  519. 

5.  Where  the  prisoner  was  described  in 
an  indictment  as  A.,  the  wife  of  B.,  it  was 
held  that  if  the  allegation  was  erroneous,  the 
proper  remedy  might  be  by  a  plea  in  abate- 
ment. Com.  T.  Lewis,  1  Mete.  151.  In 
North  Carolina,  Ihe  want  of  the  defendant's 
addition  in  an  indictment  is  not  ground  for 
a  plea  in  abatement.  State  v.  Newman,  2 
Car.  Law  Repos.  74.     It  is  otherwise  in  Vir- 


ginia. Haught  V.  Com.  2  Va.  Cas.  3;  and 
the  same  in  the  latter  State  as  to  a  false 
addition.     Com.  v.  Clark,  lb.  401. 

6.  Objections  to  grand  jury.  The  incom- 
petency of  grand  jurors  may  be  pleaded  in 
abatement.  Rawls  v.  State,  8  Sm.  &  Marsh. 
599;  McQuillen  v.  State,  lb.  587;  Nugent  v. 
State,  19  Ala.  540;  State  v.  Middleton,  5 
Porter,  484.  Where  a  statute  provided  that 
gi'and  jurors  should  be  freeholders,  a  plea  in 
abatement  to  an  indictment  stating  that  some 
of  the  grand  jury  were  not  freeholders,  was 
held  good.  State  v.  Rockafellow,  1  Halst. 
332 ;  State  v.  Duncan,  7  Yerg.  271 ;  contra, 
People  V.  Jewett,  6  Wend.  386. 

7.  The  objection  that  seventeen  instead 
of  sixteen  grand  jurors  were  impaneled  and 
passed  upon  the  indictment,  should  be  made 
by  plea  in  abatement.  Shropshire  v.  State, 
7  Eng.  190;  and  the  question  as  to  whether 
a  grand  jury  has  been  summoned,  drawn 
and  impaneled  according  to  law,  can  only 
be  considered  under  this  plea.  State  v. 
Greenwood,  5  Porter,  474 ;  Smith  v.  State, 
19  Conn.  493. 

8.  Where  for  some  reas(m  not  appearing 
in  the  record,  the  court  set  aside  the  whole 
panel  of  grand  jurors,  and  ordered  a  special 
venire  returnable  forthwitii,  it  was  held  that 
a  plea  in  abatement  was  proper.  Baker  v. 
State,  23  Miss.  243. 

9.  An  objection  that  the  indictment  was 
found  by  less  than  twelve  grand  jurors, 
taken  on  motion  in  writing,  in  the  nature  of 
a  plea  in  abatement,  is  not  too  late  at  the 
arraignment  of  the  prisoner.  State  v.  Sy- 
Djonds,  36  Maine,  128. 

10.  Exemption  from  jury  duty.  Tiie 
special  exemption  of  individuals  from  jury 
service  is  not  a  disqualilication  which  will 


ABATEMENT.— ABDUCTION. 


Validity. 


What  Constitutes. 


In  Different  States. 


abate  an   indictment.     State  v.    Brooks,    9 
Ala.  10;  Com.  v.  Long,  2  Va.  Cas.  318. 

2.    YAIilDITY. 

11.  When  double.  Two  pleas  in  abate- 
ment may  be  pleaded  to  the  same  present- 
ment. Com.  V.  Long,  2  Va.  Cas.  318.  But 
a  plea  in  abatement  which  alleges  several 
distinct  matters,  is  bad  for  duplicity.  Find- 
ley  V.  People,  1  Manning,  '234. 

12.  Unnecessary  averment.  A  plea  in 
abatement  that  certain  persons  (naming 
them)  were  sworn  and  charged  as  members 
of  the  grand  jury,  need  not  state  that  tbey 
served  on  the  grand  jury.  State  v.  Rickey, 
5  Halst.  83. 

13.  Plea  insufficient.  A  general  state- 
ment in  a  plea  in  abatement  that  the  com- 
missioners were  not  authorized  to  make  the 
selection  of  the  grand  jurors  on  the  6th  day 
of  May,  is  insufficient,  the  plea  not  showing 
that  the  6th  of  May  was  not  included  in  the 
May  term  of  the  board  of  commissioners. 
State  V.  Newer,  7  Blackf.  307. 

14.  A  plea  in  abatement,  that  two  of  the 
grand  jury  had,  before  they  were  sworn, 
formed  and  publicly  expressed  opinions  that 
were  unfavorable  to  the  defendant,  was  held 
bad  on  general  demurrer.  State  v.  Kickey, 
5  Halst.  83. 

15.  A  plea  in  abatement,  that  the  grand 
jury  were  not  legally  qualified  to  find  the  in- 
dictment, is  bad  on  special  demurrer  when 
it  alleges  objections  to  the  drawing  of  sev- 
eral jurors  having  no  necessary  connection 
and  dependent  upon  different  evidence  for 
proof.     State  v.  Ward,  63  Maine,  225. 

16.  Waiver.  Pleas  in  abatement  in  crim- 
inal, as  well  as  in  civil  cases,  must  be  pleaded 
at  the  proper  time.  By  pleading  guilty,  the 
accused  waives  matter  in  abatement.  Mc- 
Quillen  v.  State,  8  Smed.  &  Marsh.  587; 
State  V.  Butler,  17  Vt.  145;  State  v.  Carver, 
49  Maine,  588. 

17.  Judgment.  In  cases  of  misdemeanor, 
the  judgment  of  the  court  upon  a  plea  in 
abatement  is  final,  and  if  the  plea  is  found 
against  the  defendant,  the  judgment  should 
include  the  penalty.  Guess  v.  State,  1  Eng. 
147.     See  Indictment. 


^bbuctioiL 


1.  What  constitutes.  On  the  trial  of  an 
indictment  for  the  forcible  seizure,  abduction 
and  removal  of  a  child  from  the  State,  it  ap- 
peared that  the  child,  who  was  about  four 
years  old,  was  taken  from  the  lawful  cus- 
tody of  its  mother,  to  whom  it  had  been 
assigned  by  a  decree  of  divorce,  by  the  fa- 
ther, with  force,  and  carried  out  of  the  State. 
Held  that  the  child  must  be  deemed  to  have 
been  taken  without  its  consent,  and  that  the 
purpose,  with  which  the  father  carried  it 
away,  was  not  a  justification,  though  it 
might  afifect  the  measure  of  punishment. 
State  V.  Farrar,  41  New  Hamp.  53. 

2.  In  Maine.  In  Maine,  where  the  de- 
fendant by  false  representations  induced  an 
unmarried  female  to  go  with  him  to  a 
neighboring  town,  and  there,  having  made 
her  partially  intoxicated,  had  repeated  sexual 
intercourse  with  her,  it  was  held,  that  he 
could  not  be  convicted  of  enticing  her  away 
•'  for  the  purpose  of  prostitution  "  under  the 
statute.  Laws  of  1861,  ch.  4;  State  v. 
Stoyell,  54  Maine,  24. 

3.  In  Illinois.  To  constitute  the  forcible 
abduction  of  a  person  within  the  meaning 
of  the  statute  of  Illinoie,  it  is  not  necessary 
that  physical  force  or  violence  be  used  upon 
the  person  kidnapped.  It  will  be  suflScient 
if,  to  accomplish  the  removal,  the  mind  of 
the  person  was  operated  upon  by  the  de- 
fendant by  falsely  exciting  the  fears,  by 
threats,  fraud,  or  other  unlawful  or  undue 
influence,  amounting  substantially  to  a  coer- 
cion of  the  will,  so  that,  if  such  means  had 
not  been  resorted  to  or  employed,  it  would 
have  required  force  to  effect  the  removal. 
Moody  V.  People,  20  111.  315. 

4.  In  New  York.  The  taking  of  the 
female,  in  the  sense  of  the  statute  of  New 
York  against  abduction,  contemplates  some 
positive  act  to  get  her  away  from  the  person 
having  the  legal  charge  of  her,  beyond  a 
mere  attempt  at  her  seduction.  The  "  pur- 
pose of  prostitution,"  mentioned  in  the  same 
statute,  means  a  design  to  introduce  her  to 
an  indiscriminate  criminal  intercourse  with 
men.     A  purpose  of  concubinage  will  not  be 


ABDUCTION.— ABOKTION. 


In  Different  States. 


Nature  of  the  Offense. 


implied  where  the  defendant  was  a  married 
man  living  with  his  wife,  and  the  female  a 
girl  under  fourteen  years  of  age.  Neither  in 
such  case  will  there  be  an  inference  of  a 
purpose  of  marriage.  Peoi)le  v.  Parshall, 
6  Parker,   129. 

5.  The  words  "previous  chaste  charac- 
ter," in  the  statute  of  New  York  (of  March 
20,  1848),  punishing  abduction,  mean  act- 
ual personal  virtue  in  the  female.  In  order 
to  sustain  the  indictment,  it  must  be 
proved  that  she  was  chaste  up  to  the 
commencement  of  the  acts  of  the  defend- 
ant, and  that  she  was  abducted  for  the 
purpose  of  her  indiscriminate  meretricious 
intercourse  with  men.  But  although  the 
female  had  previously  lost  her  virtue,  yet 
if  she  had  afterward  reformed,  she  may  be 
the  subject  of  the  offense.  Carpenter  y. 
People,  8  Barb.  603. 

6.  In  Massachusetts.  In  Massachusetts, 
to  constitute  abduction  within  the  meaning 
of  the  statute  (of  1845,  ch.  216,  §  1),  the 
female  must  be  enticed  away  with  the  view 
and  for  the  purpose  of  placing  her  in  a 
house  of  ill  fame,  j)lace  of  assignation,  or 
elsewhere,  to  become  a  prostitute.  Com.  v. 
Cook,  12  Mete.  93. 

7.  Indictment.  An  indictment  for  ab- 
duction, under  a  statute  which  prescribes 
the  punishment  for  taking  a  female  under 
fourteen  years  of  age  from  certain  persons 
mentioned,  for  one  of  three  specified  pur- 
poses, is  not  vitiated  by  alleging,  that  the 
female  was  taken  for  all  of  those  purposes; 
and  the  allegation  of  an  intent  to  do  further 
acts  not  mentioned  in  the  statute  may  be 
regarded  as  surplusage.  People  v.  Parshall, 
6  Parker,   129. 

8.  "Verdict.  Where,  on  the  trial  of  an  in- 
dictment for  abduction,  some  of  several 
counts  were  undisposed  of  by  the  verdict,  it 
was  held  error  for  which  the  judgment 
must  be  reversed.  People  v.  Parshall, 
supra. 

9.  Where  two  were  indicted  for  abduct- 
ing a  girl  under  the  age  of  sixteen  years,  and 
the  indictment  contained  several  counts, 
some  under  the  3d  section  of  the  Stat.  4  and 
5,  Phil,  and  M.  ch.  8,  which  punishes  such 
abduction  with  two  years'  imprisonment  or 


by  fine,  and  some  under  the  4th  section  of 
the  same  statute,  which  punishes  the  same 
offense,  by  five  years  imprisonment  or  by  fine, 
it  was  held  that  the  joinder  of  the  counts 
was  good,  and  that  there  might  be  a  general 
verdict  of  guilty ;  that  the  count  under  the 
4th  section,  for  abducting  and  marrying,  in- 
cluded the  less  offense  of  abducting ;  and 
that  the  verdict  found  the  greater  degree  of 
guilt,  as  well  of  him  who  contracted  mar- 
riage with  the  girl  as  of  him  who  aided  him 
in  abducting  her.  State  v.  Tidwell,  5 
Strobh.  1. 


1.  Nature  op  the  offense. 

2.  Indictment. 

3.  Evidence. 

4.  Verdict. 

1.  Nature  op  the  offense. 

1.  At  common  law.  At  common  law,  it 
is  not  an  indictable  oflFense  to  procure  an 
abortion  with  the  consent  of  the  woman,  un- 
less she  is  quick  with  child.  Com.  v.  Parker, 
9  Mete.  263.  And  in  the  latter  case,  it  is  not 
murder  or  manslaughter,  J)ut  a  misdemeanor. 
State  V.  Cooper,  2  Zabris.  52. 

2.  In  Maine.  In  Maine,  when  in  an 
attempt  to  procure  an  abortion  there  is  an 
intent  to  produce  death,  and  death  ensues, 
it  is  murder;  but  in  the  absence  of  such  in- 
tent, it  is  only  manslaughter.  Smith  v.  State, 
33  Maine,  48. 

3.  In  Massachusetts.  In  Massachusetts, 
it  is  no  defense  to  an  indictment  for  procur- 
ing a  miscarriage  under  the  statute  (of  1845, 
«  27)  that  the  female  was  not  pregnant  with 
a  quick  child.  The  procuring  of  a  mis- 
carriage is  malicious,  if  done  from  any 
wicked  or  base  motive ;  and  the  consent  of 
the  woman,  or  the  defendant's  desire  to 
screen  her  or  himself  from  exposure  and 
disgrace,  furnish  no  justification.  Com.  v. 
Wood,  11  Gray,  85. 

4.  In  Vermont.  To  convict  a  person  of 
the  attempt  to  ])rocure  the  miscarriage  of  a 
woman  pregnant  with  child,  under  the 
statute  of  Vermont  (C'omp.  St.  ch.  108),  it 


ABOKTION. 


Nature  of  Offense. 


Indictment. 


is  not  necessary  that  the  fcetus  should  be 
alive  at  the  time  of  committing  the  offense. 
State  V.  Howard,  33  Vt.  380. 

5.  In  New  York.  Where  the  crime 
charged  under  the  statute  of  New  York 
(Laws  of  1873,  ch.  181),  was  that  of  per- 
suading the  deceased  to  submit  to  the  use  of 
an  instrument  upon  her  person,  and  to  take 
drugs  with  intent  to  produce  her  miscarriage, 
in  consequence  of  which  her  death  and  that 
of  the  child  were  caused,  it  was  held  that 
the  death  of  the  deceased  was  not  a  nec- 
essary ingredient  of  the  crime ;  that  of  the 
child  being  sufficient  to  make  the  offense  a 
felony.  The  act  alleged  was  a  crime  under 
the  third  section  of  the  statute,  in  the  ab- 
sence of  the  death  of  the  mother  or  child  : 
such  death  only  increasing  the  degree  of  the 
crime  and  the  punishment.  People  v.  Davis, 
56  N.  Y.  95. 

6.  Whether  under  an  indictment  for  using 
instruments  upon  a  female,  with  the  intent  to 
destroy  a  quick  child  of  which  such  female 
was  pregnant,  the  prisoner  can  be  convicted 
of  a  misdemeanor  in  using  such  instruments 
upon  the  same  female,  with  intent  to  pro- 
duce a  miscarriage — query.  Cobel  v.  People, 
5  Parker,  348. 

7.  In  New  York,  a  woman  who  takes  a 
drug  in  order  to  effect  a  miscarriage  is  guilty 
of  a  criminal  offense  of  the  same  grade  as 
that  committed  by  the  person  who  adminis- 
ters the  drug,  and  is  liable,  upon  conviction, 
to  the  same  punishment.  Frazer  v.  People, 
54  Barb.  306 ;  8  N.  Y.  Rev.  Statutes,  5th 
ed.  975,  §  21. 

3.  Indictment. 

8.  Averment  of  time  and  place.  A  count 
in  an  indictment  charged  that  at  a  certain 
time  and  place  the  said  E.  D.  was  pregnant, 
and  that  the  defendant,  with  the  intent  to 
cause  and  produce  her  miscarriage,  did  ad- 
vise and  procure  her  then  and  there  to  take, 
&c.  It  was  objected  that  the  allegation 
should  have  been  that  the  defendant  "did 
then  and  there  advise  and  procure  the  said 
E.  D.  then  and  there  to  take,"  &c.  Held 
that  time  and  place  were  sufficiently  averred. 
Crichton  v.  People,  1  N.  Y.  Ct.  of  Appeals 


Decis.  467;   affl'g  6   Parker,    363;  s.   c.    1 
Keyes,  341. 

9.  Averment  of  means.  An  indictment 
averred  that  the  defendant  provided  ergot, 
and  advised,  ordered  and  commanded  B.  and 
C.  to  administer  it  to  D.  then  and  there 
quick  and  pregnant  with  child,  and  by  so 
ordering,  commanding  and  advising,  and  by 
the  taking  and  swallowing  of  such  ergot 
into  her  stomach  by  the  said  D.,  he  did  ad- 
minister the  same  to  her  unlawfully  and  with 
intent  to  procure  her  to  miscarry  and  be  pre- 
maturely delivered  of  said  child.  Held  that 
the  defendant  was  charged  as  a  principal,  and 
not  as  an  accessory.  And  where,  in  addition 
to  the  foregoing,  the  indictment  also  alleged 
that  the  defendant  used  certain  instruments, 
it  was  held  not  bad  for  duplicity,  and  that 
it  would  be  sustained  by  proof  of  either  of 
the  means  alleged.  Com.  v.  Brown,  14  Gray, 
419. 

10.  Where  a  statute  makes  the  attempt  to 
procure  a  miscarriage  a  criminal  act  unless 
such  miscarriage  was  necessary  to  preserve 
life,  an  indictment  is  insufficient  which 
charges  that  a  particular  instrument  was  un- 
necessarily employed  to  procure  that  result, 
without  alleging  that  the  miscarriage  was 
not  necessary  to  save  the  life  of  the  woman. 
Bassett  v.  State,  41  Ind.  303;  Willey  v. 
State,  46  Ind.  363. 

11.  Unnecessary  averments.  An  indict- 
ment for  administering  medicine  to  a  preg- 
nant woman  to  procure  an  abortion,  need 
not  allege  the  particular  kind,  quantity  or 
or  quality  of  the  medicine.  State  v.  Van 
Houten,  37  Mo.  357;  State  v.  Vawter,  7 
Blackf.  593.  In  New  Jersey,  an  indictment 
under  the  statute  (Nix.  Dig.  177,  §  103),  for 
advising  or  directing  a  pregnant  woman  to 
take  a  drug  with  intent  to  cause  her  miscar- 
riage, need  not  allege  that  the  drug  was 
actually  taken  by  her.  State  v.  Murphy,  3 
Dutch.  112. 

12.  In  Massachusetts,  an  indictment  for 
procuring  a  miscarriage,  and  thereby  causing 
the  death  of  the  woman,  need  not  charge  the 
offense  of  murder,  or  allege  that  it  was  com- 
mitted feloniously:  and  the  means  employed 
are  sufficiently  described  as  "a  certain  in- 
strument, the  name  of  which  is  to  the  jurors 


ABOKTION. 


Indictment. 


Evidence. 


iinknown."  (Sts.  of  Mass.  of  1845,  eh.  27, 
and  of  1853,  oh.  37) ;  Com.  v.  Jackson,  15 
Gray,  187.  An  indictment  for  procuring  a 
miscarriage  under  the  statute  (Gen.  Stats,  ch. 
165,  §  98),  need  not  allege  that  the  act  was 
committed ' '  maliciously  and  without  lawful 
justification  ;  "  the  words  "  unlawfully  "  and 
"  with  intent "  being  sufficient.  Com,  v. 
Sholes,  13  Allen,  554.  In  the  same  State  it 
has  been  held  that  an  indictment  for  using 
an  instrument  with  intent  to  procure  a  mis- 
carriage need  not  allege  whether  or  not  the 
woman  died.  The  averment  that  the  acts 
were  done  "maliciously  and  without  any  law- 
ful justification  "  is  sufficient,  although  the 
word  "  unlawfully  "  is  used  in  the  statute. 
Com.  V.  Thompson,  108  Mass.  461. 

13.  In  Massachusetts,  an  indictment  under 
the  statute  (of  1845,  §  27),  for  procuring  a 
miscarriage,  need  not  allege  that  the  defend- 
ant used  the  instrument  with  which  he  com- 
mitted the  offense,  or  state  who  the  woman 
was,  or  that  she  brought  forth  the  child  pre- 
maturely, or  that  the  child  was  dead.  Com. 
V.  Wood,  11  Gray,  85. 

14.  In  Maine,  an  indictment  for  causing 
the  death  of  a  pregnant  female  in  attempt- 
ing to  procure  an  abortion,  need  not  allege 
that  the  deceased  was  quick  with  child. 
State  T.  Smith,  32  Maine,  369. 

15.  In  Pennsylvania,  in  charging  an  at- 
tempt to  procure  an  abortion,  the  indictment 
need  only  allege  an  intention  to  procure  an 
abortion  or  miscarriage  to  cause  the  death  or 
premature  birth  of  the  child,  without  charg- 
ing that  the  mother  was  quick  with  child. 
Mills  V.  Com.  13  Penn.  St.  631. 

16.  As  pregnancy  ceases  when  the  child  is 
removed  from  the  body  of  the  mother,  be- 
fore the  severance  of  the  umbilical  cord,  the 
averment  in  an  indictment  for  procuring  a 
miscarriage,  of  violence  by  the  hand  of  the 
defendant  at  that  period,  constitutes  no  part 
of  the  offense,  and  may  be  rejected  as  sur- 
plusage.    Com.  V.  Brown,  14  Gray,  419. 

3.  Evidence.  V 

17.  Time.  On  the  trial  of  an  indictment 
for  procuring  an  abortion,  the  witnesses  for 
the  prosecution  all  testified  that  the  opera- 
tion was  performed  at  A.  on  the  20th  of  May ; 


and  there  was  no  testimony  as  to  any  other 
date.  The  defendant  introduced  testimony 
tending  to  show  that  on  the  19th,  20th  and 
2l8t  days  of  May,  he  was  more  than  a  hun- 
dred miles  from  A. ;  and  he  asked  the  court 
to  charge  the  jury  that  there  was  no  evi- 
dence in  the  case  which  would  warrant  them 
in  finding  that  the  defendant  did  the  act 
complained  of  upon  any  other  day  than  May 
20th,  and  that  if  they  were  satisfied  that  he 
did  not  do  the  act  on  that  day,  they  could 
not  convict.  Held  that  the  instruction  was 
properly  refused,  the  exact  day  not  being 
material,  and  a  discrepancy  as  to  the  date 
only  going  to  the  credibility  of  the  wit- 
nesses.    Com.  V.  Snow,  116  Mass.  47. 

18.  Medicine.  In  Massachusetts,  on  the 
trial  of  an  indictment  under  the  statute  (of 
1845,  ch.  27)  for  advising  a  woman  to  take 
medicine  to  procure  a  miscarriage,  the  pros- 
ecution need  not  prove  what  the  medicine 
was,  or  whether  it  was  such  as  would  tend 
to  produce  the  effect  designed,  or  whether  it 
was  actually  taken  by  the  woman.  Com.  v. 
Morrison,  16  Gray,  224. 

19.  An  indictment  for  advising  a  preg- 
nant woman  to  procure  a  miscarriage  alleged 
that  the  defendant  recommended  her  to  take 
"Dr.  James  Clark's  female  pills,"  and  the 
proof  was  that  he  told  her  to  take  "  Dr. 
Clark's  female  pills."  Held  that  there  was 
no  variance.  Crichton  v.  People,  1  N.  Y. 
Ct.  of  Appeals  Decis.  467 ;  affi'g  6  Parker, 
363;  s.  c.  1  Keyes,  341. 

20.  In  a  trial  for  procuring  an  abortion 
by  administering  drugs  which  caused  the 
death  of  the  female,  it  was  held  that  in  order 
to  show  the  nature  of  the  drugs,  their  proba- 
ble eflect,  and  the  purpose  for  which  the  ac- 
cused administered  them,  evidence  was  ad- 
missible to  prove  that  about  two  years  pre- 
vious, the  accused  advertised  that  he  could 
be  consulted  in  relation  to  tlie  procuring  of 
miscarriage,  and  stated  how  he  might  be 
consulted  by  females  without  exposure. 
Weed  V.  People,  56  N.  Y.  628 ;  s.  c.  3  N.  Y. 
Supm.  N.  S.  50. 

21.  Prosecutrix  a  competent  witness. 
On  the  trial  of  an  indictment  for  advis- 
ing and  procuring  a  pregnant  woman  to 
take  a  drug,  with  intent  to  procure  her  mis- 


ABOETIOK 


Evidence. 


carriage,  she  is  a  competent  witness,  although 
deemed  an  accomplice.  But  she  is  not  strict- 
ly an  accomplice,  the  law  regarding  her  rather 
as  the  victim  than  the  perpetrator  of  the 
crime.     Dunn  v.  People,  29  N.  Y.  523. 

22.  On  the  trial  of  a  husband  and  another 
man  jointly  indicted  for  personal  violence 
to  the  wife  by  inserting  an  instrument  into 
her  body  witli  intent  to  procure  her  miscar- 
riage, she  is  a  competent  witness  for  the 
prosecution.     State  v.  Dyer,  59  Maine,  137. 

23.  Declarations  of  woman.  The  de- 
clarations of  a  woman  on  whom  a  miscar- 
riage has  been  produced,  accompanying  acts 
done  in  furtherance  of  the  criminal  purpose, 
are  admissible  in  evidence  against  one  who 
joined  in  the  unlawful  act.  And  where  the 
death  of  the  woman  resulted  from  the  mis- 
carriage, it  was  held  competent  to  prove  the 
declarations  of  the  deceased  made  immedi- 
ately after  an  interview  had  by  her  with 
the  prisoner,  showing  the  object  of  her  visit 
to  him  and  what  took  place.  Solander  v. 
People,  3  Col.  48. 

24.  On  a  trial  for  attempting  to  procure 
the  miscarriage  of  a  woman  pregnant  with 
child,  resulting  in  her  death,  her  declarations 
as  to  her  object  in  going  to  the  prisoner's 
house  are  admissible  in  evidence  as  part  of 
of  the  res  gestae  ;  as  also  are  her  declarations 
soon  after  she  arrived  there,  as  to  her  feel- 
ings, and  the  state  of  her  health.  State  v. 
Howard,  32  Vt.  380. 

25.  On  the  trial  of  an  indictment  for  pro-, 
curing  an  abortion,  under  the  statute  of 
New  York  (Laws  of  1872,  ch.  181,  §  1),  the 
death  of  either  the  mother  or  child  is  the 
substance  of  the  offense,  and  therefore  the 
dying  declarations  of  the  mother  are  ad- 
missible. Davis  V.  People,  2  N.  Y.  Supm. 
N.  S.  212. 

26.  Prosecutrix  to  be  corroborated.  The 
submission  to  an  operation,  or  the  taking  of 
drugs  with  intent  to  procure  a  miscarriage, 
is  a  moral  as  well  as  a  legal  offense,  and  with 
confessed  want  of  chastity  is  an  impeach- 
ment of  the  woman  as  a  witness,  and  renders 
her  corroboration  proper  if  not  indispens- 
able.    Frazer  v.  People,  54  Barb.  306. 

27.  In  Vermont,  on  the  trial  of  an  indict- 
ment for  attempting  to  procure  the  miscar- 


riage of  a  woman  pregnant  with  child,  result- 
ing in  her  death,  it  was  held  that  the  woman 
must  be  corroborated  on  material  points,  and 
to  such  an  extent  as  upon  the  whole  case  to 
leave  no  reasonable  doubt  of  the  prisoner's 
guilt.  State  v.  Howard,  32  Vt.  380.  But  in 
Massachusetts,  on  a  trial  under  the  statute 
(of  1845,  §  27),  it  was  held  not  erroneous  to 
charge  the  jury  that  the  prosecutrix  is  not 
an  accomplice  within  the  rule  requiring  her 
testimony  to  be  corroborated.  Com.  v. 
Wood,  11  Gray,  85. 

28.  In  California,  on  the  trial  of  an  indict- 
ment for  an  attempt  to  produce  an  abortion, 
it  is  not  enough  that  the  prosecutrix  is  cor- 
roborated in  some  particulars  which  involve 
no  criminality  in  the  defendant.  She  must 
also  be  corroborated  in  at  least  some  portion 
of  her  testimony  which  imputes  to  the  de- 
fendant the  commission  of  the  crime  alleged. 
She  need  not  be  corroborated  in  respect  to 
the  method  employed,  provided  she  be  cor- 
roborated by  testimony  tending  to  show  an 
attempt  by  the  defendant  to  produce  an 
abortion  in  any  method.  Peojile  v.  Josse- 
lyn,  39  Cal.  393. 

29.  Impeachment  of  prosecutrix.  On  a 
trial  for  an  attempt  to  procure  an  abortion, 
the  prosecutrix  testified,  on  cross-examin- 
ation, that  she  had  been  examined  as  a  wit- 
ness in  proceedings  in  bastardy  against  the 
present  defendant,  as  the  father  of  her 
child.  She  was  then  asked;  "Did  you  not 
testify  on  that  trial  that  you  never  had  had 
sexual  intercourse  with  any  other  man,  and 
was  he  not  discharged  in  those  proceedings 
on  the  ground  that  he  was  not  the  father  of 
your  child  ?  Held  that  the  question  was 
properly  excluded,  it  being  immaterial. 
Crichton  v.  People,  6  Parker,  363 ;  s.  c.  1 
Keyes,  341 ;  afh'd  1  N.  Y.  Ct.  of  Appeals 
Decis.  467. 

30.  Presumptions.  On  the  trial  of  an  in- 
dictment for  procuring  an  abortion,  it  is 
competent  to  prove  that  the  prosecutrix  was 
in  feeble  health,  and  that  there  were  bloody 
stains  upon  her  bed  a  month  subsequent 
to  the  alleged  offense.  Com.  v.  "Wood,  11 
Gray,  85.  And  where  it  was  proved  that 
ergot  was  administered,  it  was  held  proper 
to  show  that  it  was  the  popular  belief  that 


ABOETION. 


Evidence. 


Verdict. 


that  drug  -would  cause  abortion.     Carter  v. 
State,  2  Carter,  617. 

31.  On  the  trial  of  an  indictment  for  pro- 
curing an  abortion,  alleged  to  have  been 
committed  with  instruments,  portions  of  the 
body  of  the  deceased  preserved  in  spirits 
may  be  submitted  to  the  inspection  of  the 
jury.     Com.  v.  Brown,  14  Gray,  419. 

32.  On  the  trial  of  an  indictment  for  pro- 
curing the  miscarriage  of  E.,  resulting  in 
her  death,  it  was  held  proper  for  a  witness 
to  testify  to  a  conversation  had  with  the  de- 
fendant previous  to  the  transaction,  in  which 
the  defendant  represented  herself  as  having 
skill  and  experience  in  operations  of  the 
kind,  that  she  had  repeatedly  performed 
thorn  with  success,  and  that  she  was  willing 
to  undertake  the  performance  of  such  an 
operation  upon  E.,  which  conversation  was 
communicated  to  E.  Com.  v.  Holmes,  103 
Mass.  440. 

33.  For  defense.  Where  it  was  claimed 
that  one  H.  was  the  father  of  the  child  of 
which  the  prosecutrix  was  enciente,  it  was 
held  that  H.  was  a  competent  witness  to 
prove  that  he  had  never  had  sexual  inter- 
course with  her.  Dunn  v.  People,  29  N.  Y. 
523. 

34.  On  the  trial  of  an  indictment  under 
§  148  of  the  act  of  Congress  of  June  8,  1873 
(17  U.  S.  Stats,  at  Large,  302),  as  amended  by 
§  3  of  the  act  of  March  3,  1878,  making  it 
a  misdemeanor  for  any  person  knowingly  to 
deposit  for  mailing  or  delivery  anything 
having  a  tendency  to  prevent  conception  or 
procure  abortion,  evidence  is  not  admissible 
to  show  that  the  article  deposited  in  the 
mail  by  the  defendant  had  no  such  tend- 
ency, and  that  its  harmlessness  in  this  re- 
spect was  known  to  the  defendant,  it  being 
proved  that  the  article  was  put  up  in  a  form 
and  described  in  a  manner  to  insure  its  use 
for  the  prohibited  purpose.  And  wliere  the 
evidence  shows  the  deposit  of  a  notice,  stat- 
ing that  certain  articles  contraband  by  the 
statute  can  be  obtained  at  a  designated 
place,  it  is  immaterial  whether  or  not  the 
information  in  the  notice  is  true.  U.  S.  v. 
Bott,  11  Blatch.  346;  s.  c.  2  Green's  Crira. 
Reps.  239. 


4.    Verdict. 

35.  Defendant  need  not  be  present.  In 
Illinois,  the  offense  of  abortion  being  only  a 
misdemeanor,  the  defendant  need  not  be 
present  when  the  verdict  is  given.  Halliday 
v.  People,  4  Gilmau,  111. 

36.  Of  guilty,  when.  It  is  not  errone- 
ous on  a  trial  for  procuring  an  abortion, 
and  thereby  causing  the  death  of  the  female, 
to  charge  the  jury  that  if  they  iiud  that  a 
abortion  was  committed  upon  the  deceased, 
or  an  attempt  at  it  made,  and  that  the  de- 
fendant was  connected  with  it,  and  that  the 
death  resulted  therefrom,  they  must  convict. 
Weed  v.  People,  3  N.  Y.  Supm.  K  S.  50 ; 
56  N.  Y.  628. 

37.  In  New  York,  on  the  trial  of  an  in- 
dictment for  causing  the  abortion  of  a  quick 
child,  which  by  statute  is  a  felony,  the 
prisoner  may  be  convicted,  though  it  appear 
that  the  child  was  not  quick,  and  the  offense 
therefore  a  misdemeanor.  People  v.  Jack- 
son, 3  Hill,  93. 

38.  For  manslaughter.  An  indictment 
alleged  that  the  defendant  feloniously,  will- 
fully, knowingly,  maliciously,  and  inhu- 
manly forced  and  thrust  a  wire  up  into  the 
womb  and  body  of  one  B.  C,  she  being  then 
pregnant  and  quick  with  child,  with  a 
wicker],  malicious,  and  felonious  intent,  to 
cause  her  to  miscarry  and  bring  forth  the 
child  with  which  she  was  then  pregnant 
and  quick  ;  that  by  the  means  thus  employed 
she  brought  forth  the  said  child  dead :  and 
that  she  afterward,  in  consequence  of  the 
means  so  used,  became  sick  and  distemper- 
ed in  her  body,  suffered  and  languished,  and 
by  reason  thereof  died.  Held  that  as  an  in- 
tent to  kill  the  child  was  not  charged,  there 
could  only  be  a  verdict  for  manslaughter. 
State  v.  Smith,  32  Maine,  369. 

39.  For  offense  against  person  not 
named.  Where  an  indictment  for  man- 
slaughter in  the  second  degree  alleged  the 
killing  of  the  quick  child  of  B.,  by  instru- 
ments used  on  her  body  in  order  to  procure 
an  abortion,  and  the  verdict  was  "  Not  guilty 
of  manslaughter  in  the  second  degree,  but 
guilty  of  a  misdemeanor,  to  wit.,  in  the  use 
and  employment  of  instruments  and  other 
means  upon  the  person  of  a  pregnant  woman 


ACCESSOKY. 


Who  Deemed. 


with  intent  thereby  to  procure  the  miscar- 
riage of  such  woman,"  it  was  held,  that  the 
verdict  was  erroneous,  in  finding  that  the 
oflFense  was  committed  on  a  woman  not 
named,  instead  of  upon  B.,  as  cliarged  in  the 
indictment.     Cobel  v.  People,  5  Parker,  348. 


1.  Who  deemed. 

2.  Liability. 

3.  Absence  of  liability. 

4.  Indictment. 

5.  Tkial. 

6.  Evidence. 

1.  Who  deemed. 

1.  Distinction  as  to  guilt  or  innocence 
of  principal.  A  felony  may  be  committed 
through  the  instrumentality  of  others, 
though  the  principal  be  not  present.  But 
this  is  where  the  agent  is  an  innocent  party. 
When  the  i:)erson  employed  is  guilty,  he  is 
the  principal,  and  his  employer  but  an  ac- 
cessory. Wixon  V.  PeoiJle,  5  Parker,  119. 
The  following  charge  of  the  court  to  the 
jury  was  held  erroneous :  "  That  although 
W.  had  no  part  in  breaking  the  store  and 
taking  the  goods,  yet  if  he  knew  it  was  to 
be  done  by  A.  and  B.,  or  either  of  them,  and 
the  goods  were  immediately  taken  to  his 
house,  and  he  aided  in  furnishing  a  box  to 
secrete  the  goods,  and  directed  where  they 
should  be  placed  to  avoid  discovery,  and 
prevent  the  owner  from  finding  them,  so  as 
to  convert  them  to  his  own  use,  he  was 
guilty  of  larceny.     lb. 

2.  At  common  law,  a  person  may  be  a 
principal  in  an  ofiiense  without  being  an  eye 
witness  of  the  transaction,  or  within  hear- 
ing. It  is  suflacient  that  he  had  knowledge 
of  the  crime,  and  watched  near  enough  to 
assist  those  actually  engaged,  if  required. 
Doan  V.  State,  26  Ind.  495.  But  to  convict 
a  party  of  felony  who  is  constructively  pres- 
ent at  its  commission,  he  must  be  of  the 
party,  and  do  some  act  in  execution  of  the 
common  design,  or  be  near  enough  to  the 
scene  of  operations  to  assist  in  carrying  it 
out,  or  to  aid  those  who  are  immediately  en- 


gaged, in  it  to   escape,  should  necessity  re- 
quire.    Wixon  V.  People,  supra. 

3.  On  a  trial  for  an  attempt  to  burn  in- 
sured goods,  with  intent  to  prejudice  the 
insurer,  it  appeared  that  the  prisoner  gave 
one  D.  matches,  and  hired  him  to  set  fire  to 
the  prisoner's  shop,  in  which  the  insured 
goods  were ;  that  D.  set  the  shop  on  fire,  but 
that  the  fire  was  extinguished  without  de- 
stroying either  the  shop  or  any  of  the  goods. 
Held  that  although  the  prisoner  was  not 
present  when  D.  set  the  shop  on  fire,  yet 
that  he  was  equally  guilty  with  him. 
Mackesey  v.  People,  6  Parker,  114. 

4.  On  the  trial  of  an  indictment  for  grand 
larceny  in  stealing  a  horse,  it  appeared  that 
the  animal  was  Aever  in  the  possession  of  the 
prisoner,  but  that  it  was  taken  by  one  C.  on 
the  prisoner's  order,  and  the  testimony 
tended  to  implicate  0.  in  the  transaction. 
After  conviction,  the  following  charge  of 
the  judge  to  the  jury  was  held  correct: 
"  That  they  were  to  determine  upon  the  evi- 
dence whether  or  not  C.  was  an  innocent 
agent  of  the  prisoner  in  taking  the  horse ; 
that  if  they  so  found,  and  if  they  further 
found  a  felonious  intent  uj)on  the  part  of  the 
prisoner  in  the  taking  by  C,  he  could  be 
convicted;  but  that  if  they  found  that  C. 
had  a  knowledge  of  the  prisoner's  felonious 
intent,  then  their  verdict  should  be  not 
guilty,  the  prisoner  in  that  case  being  only 
an  accessory  before  the  fact."  People  v. 
McMurray,  4  Parker,  234. 

5.  If  a  person  in  one  State  commits  a  crime 
in  another  State  through  an  innocent  agent, 
the  law  will  regard  him  as  personally  pres- 
ent, and  hold  him  resi^onsible.  If  a  person 
in  one  State  procure  the  commission  of  a 
misdemeanor  in  another  State  through  even 
a  guilty  agent,  the  procurer  is  regarded  as  a 
principal,  and  as  being  present  where  the 
oflense  was  committed,  and  he  is  answerable 
there.  An  accessory  before  the  fact  in  one 
State  to  a  felony  committed  in  another  State, 
is  guilty  of  a  crime  in  the  State  where  he 
becomes  an  accessory,  and  answerable  there, 
w^hile  the  principals  are  indictable  in  the 
latter  State.     State  v.  Chai)in,  17  Ark.  561. 

6.  If  goods  be  feloniously  taken  and  re- 
moved by  a  servant,  under  his  master's  in- 


ACCESSORY. 


Who  Deemed, 


Liability. 


Absence  of  Liability. 


Indictment. 


.  structions,  who  is  absent,  and  the  master 
afterwards  assists  in  secreting  the  goods,  he 
can  only  be  held  as  au  accessory.  Norton 
V.  People,  8  Cow.  137. 

7.  A  wife  is  not  shielded  from  responsi- 
bility for  crime  committed  by  her  husband's 
order,  unless  she  is  within  his  presence  and 
control.     Com.  v.  Fecney,  13  Allen,  560. 

8.  Encouraging  design.  Where  upon 
the  trial  of  one  as  accessory  to  murder,  the 
court  charged  that  it  was  immaterial  whether 
the  principal  had  formed  the  intention  to 
kill  the  deceased  before  his  interview  with 
the  accessory ;  that  if  the  accessory  encour- 
aged him  in  that  design  they  must  find 
the  defendant  guilty — it  was  held  correct. 
Keithler  v.  State,  10  Sm.  «fc  Marsh.  192. 

2.  Liability. 

9.  As  principaL  In  Illinois,  an  accessory 
before  the  fact  is  deemed  a  principal.  Bax- 
ter v.  People,  3  Oilman,  368.  In  Tennessee, 
by  the  statute  (of  1829,  ch.  23),  §  64,  an  ac- 
cessory after  the  fact  to  obtaining  goods  by 
false  pretenses  is  punishable  as  principal. 
Long  V.  State,  1  Swan,  287. 

10.  If  an  accessory  aid  and  abet  a  principal 
who  is  not  amenable  to  the  law,  he  cannot 
be  arraigned  unless  his  acts  are  such  as  to 
render  him  liable  as  principal.  U.  S.  v. 
Libby,  1  Woodb.  &  Minot,  321. 

3.  Absence  op  liabelity. 

11.  Principal  for  act  of  agent.  As  a 
general  rule,  the  principal  is  not  responsible 
criminaliter,  for  the  illegal  act  of  his  agent, 
unless  done  by  his  express  authority;  nor 
are  the  declarations  of  the  agent,  in  the  per- 
formance of  such  illegal  act,  competent  evi- 
dence against  the  principal  when  sought  to 
be  charged  in  a  criminal  proceeding.  Nail 
V.  State,  34  Ala.  262 ;  Watts  v.  State,  5  W. 
Va.  352 ;  s.  c.  2  Green's  Crim.  Reps.  676. 

12.  Person  present  at  felony.  One  who 
is  present  when  a  felony  is  about  to  be  com- 
mitted, and  does  not  interfere,  does  not 
thereby  participate  in  the  felony.  Although 
he  has  a  right  to  prevent  if  he  can  the  per- 
petration of  the  felony,  yet  he,  is  not  bound  to 
do  so,  or  otherwise  partake  of  the  guilt. 
State  V.  Hildrcth,  9  Ired.  440. 

13.  When  several  are  doing  what  is  law- 


ful, and  some  of  them  without  the  co-opora- 
tion  of  the  others,  though  in  their  presence, 
commit  a  felony,  the  latter  can  neither  be 
regarded  as  principals  nor  as  accessories, 
U.  S.  V.  Jones,  3  Wash.  C.  C.  223. 

14 .  Person  out  of  State.  Held  in  Indi- 
ana, that  a  person  who  out  of  the  State 
becomes  an  accessory  before  the  fact  to  a 
felony  committed  within  the  State,  cannot 
be  punished  by  the  laws  of  the  State.  Johns 
V,  State,  19  Ind.  421. 

4.  Indictment. 

15.  Accessory  charged  as  principal.     In 

Kansas,  under  the  statute  (Oen.  Stat.  839), 
an  accessory  before  the  fact  may  be  charged 
and  convicted  as  a  jiriccipal.  State  v.  Cas- 
sady,  12  Kansas,  550.  In  Iowa,  under  the 
statute  (Rev.  Stats,  153),  accessories  before 
the  fact  are  deemed  principals,  and  may  be 
charged  as  such  in  the  indictment.  Bonsell 
V,  U.  S.  1  Iowa,  111.  But  in  Alabama,  it 
was  held  that  a  defendant  who  was  charged 
in  the  indictment  as  principal  could  not  be 
convicted  upon  proof  that  he  was  only  an 
accessory  before  the  fact.  Hughes  v.  State, 
12  Ala.  458. 

16.  In  Nevada,  an  accessory  before  the 
fact  being  regarded  as  a  principal,  an  indict- 
ment against  him  need  not  allege  the  special 
act  by  which  he  aided  or  abetted,  but  only 
the  ultimate  act  itself,  the  same  as  in  the 
case  of  a  principal  (State  v.  Chapman,  6 
Nev.  320) ;  and  it  is  not  essential  to  his  con- 
viction that  the  guilt  of  the  principal  be  first 
proved.     State  v.  Jones,  7  Nev.  408. 

17.  In  Illinois,  an  accessory  to  a  murder 
may  be  indicted  and  punished  as  principal. 
But  the  prosecution  must  establish  the  guilt 
of  the  principal  before  the  jury  can  find  the 
accessory  guilty.  Baxter  v.  People,  2  Gil- 
man,  578. 

18.  If  one  be  present,  aiding  and  assisting 
another  to  commit  murder,  he  may  be  in- 
dicted as  an  accessory  and  convicted  of 
manslaughter;  and  it  is  the  same  where  one 
aids  and  assists  another  in  committing  man- 
slaughter.    State  V.  Colman,  5   Porter,  32. 

19.  Requisites.  An  indictment  against  an 
accessory  must,  in  addition  to  otiier  matter, 
contain  all  the  averments  which  would  be 


10 


ACCESSORY 


Indictment. 


Trial. 


necessary  in  an  indictment  against  the  prin- 
cipal.    People  V.  Theall,  50  Cal.  415. 

20.  The  indictment  of  an  accessory  need 
not  state  that  the  principal  has  been  con- 
victed, but  it  must  allege  his  guilt,  and  it 
must  be  proved  that  his  guilt  was  legally  as- 
certained. Holmes  v.  Com.  25  Penn.  St.  221 ; 
State  V.  Crank,  2  Bail.  06 ;  State  v.  Sims,  lb. 
29;  Com.  v.  Williamson,  2  Va.  Cas.  211; 
State  V.  Simmons,  1  Brev.  6 ;  State  v.  Ricker, 
29  Me.  84;  State  v.  Roclielle,  2  Brev.  338. 

21.  An  indictment  alleging  that  A.  entered 
a  dwelling-house  in  a  burglarious  manner  for 
the  purpose  of  stealing,  and  stole  therein, 
and  that  B.  was  accessory  to  "  the  offense 
aforesaid,"  is  good.  Stoops  v.  Com.  7  Serg. 
&  Rawle,  491. 

22.  In  Vermont,  an  indictment  against  an 
accessory  under  the  statute  (Rev.  Stat.  ch. 
102,  §  11),  must  allege  that  he  does  not 
stand  in  the  relation  contemplated  by  the 
excepting  clause  of  the  statute,  unless  the 
exception  is  in  a  separate  section  of  the 
statute,  or  in  a  proviso  distinct  from  the 
enacting  clause.     State  v.  Butler,  17  Vt.  145. 

5.  Tkial. 

23.  May  be  with  principal.  If  the  court 
choose,  and  the  accessory  and  principal  are 
willing,  they  may  be  tried  together.  Sam- 
son V.  Com.  5  Watts  &  Serg.  385.  In  South 
Carolina,  it  is  in  the  discretion  of  the  court 
to  allow  an  accessory  a  separate  trial.  State 
V.  Yancy,  1  Const.  Ct.  241. 

24.  Principal  to  be  first  convicted.  At 
common  law,  the  principal  must  first  be 
convicted  before  the  accessory  can  be  put 
on  trial  against  his  consent.  And  when  the 
principal  dies  before  conviction,  the  acces- 
sory must  be  discharged.  Com.  v.  Phillips, 
16  Mass.  423 ;  Whitehead  v.  State,  4  Humph. 
278;  Stoops  v.  Com.  7  Serg.  &  Rawle,  491 ; 
State  V.  Pybass,  4  Humph.  442;  Com.  v. 
Woodward,  Thach.  Crim.  Cas.  63;  Holmes 
V.  Com.  25  Penn.  St.  221. 

25.  In  New  York,  an  accessory  cannot  be 
tried  before  the  conviction  of  the  principal. 
He  may  be  tried  in  the  county  where  he 
committed  his  part  of  the  offense,  notwith- 
standing the  principal  offense  was  com- 
mitted in  another  county.     But  he  cannot  be 


tried  in  the  county  where  the  principal 
offense  was  committed  unless  his  offense  as 
accessory  was  committed  in  that  county. 
Baron  v.  People,  1  Parker,  246. 

26.  In  Ohio,  the  accessory  may  be  first 
tried  and  convicted  if  the  principal  cannot 
be  found.  But  if  the  principal  be  acquitted, 
the  accessory  must  be  discharged,  U.  S.  v. 
Crane,  4  McLean,  317.  In  Indiana,  where  a 
person  charged  as  an  accessory  before  the 
fact  to  an  assault  and  battery  with  intent  to 
murder  was  tried  before  the  principal  and 
found  guilty,  but  before  judgment  the  al- 
leged principal  was  tried  and  acquitted,  it 
was  held  that  the  accessory  was  entitled  to 
be  discharged.  McCarty  v.  State,  44  Ind. 
214;  s.  c.  2  Green's  Crim.  Reps.  715. 

27.  In  North  Carolina,  the  accessory  can- 
not be  tried  before  the  conviction  of  the 
principal,  unless  the  latter  is  beyond  the 
reach  of  the  law.  State  v.  Goode,  1  Hawks, 
463 ;  State  v.  Groff,  1  Murph.  270. 

28.  An  accessory  before  the  fact  to  arson, 
cannot  be  tried  until  after  the  conviction  of 
the  principal  felon.  Smith  v.  State,  46  Ga. 
298.  An  accessory  before  the  fact  to  mur- 
der is  not  entitled  to  his  discharge  without 
trial  because  the  principal  felon  has  escaped, 
and  two  terms  have  elapsed  since  the  findiag 
of  the  indictment.  Com.  v.  Sheriff,  16 
Serg.  &  Rawle,  304. 

29.  When  several  are  charged  as  principals, 
the  court  in  its  discretion  may  arraign  one 
as  accessory  to  such  of  the  principals  as  are 
convicted,  and  if  he  be  found  guilty  as  ac- 
cessory to  them  or  any  of  them,  judgment 
will  pass  upon  him.  But  if  he  be  acquit- 
ted, he  may  be  tried  as  accessory  to  the 
others;  and  he  may  be  regarded  as  acces- 
sory to  him  who  has  been  convicted,  though 
the  evidence  shows  that  he  was  accessory  to 
several.  But  when  all  of  several  charged  as 
principals,  are  not  convicted,  it  is  error  to 
arraign  one  as  accessory  to  all  so  charged, 
against  his  own  consent.  Stoops  v.  Com.  7 
Serg.  &  Rawle,  491 ;  see  Com.  v.  Woodward, 
Thach.  Cr.  Cas.  63. 

30.  Although  an  accessory  may  be  tried 
and  convicted  when  one  only  of  several 
principals  named  in  the  indictment  has  been 
convicted,  yet  in   such   case,  the   accessory 


ACCESSORY.— ADULTERY. 


11 


Indictment. 


Evidence. 


Adultery — What  Constitutes. 


must  be  tried  as  accessory  to  the  convicted 
principal  in  the  same  manner  as  though  the 
convicted  principal  only  was  named  in  the 
indictment.  Starin  v.  People,  45  N.  Y. 
333. 

31.  Aiders  and  abettors  may  be  convicted, 
though  the  chief  actor  or  principal  has  been 
acquitted.  People  v.  Newberry,  20  Cal. 
439. 

6.  Evidence.       }/ 

32.  Conviction  of  principal.  When  the 
accessory  is  tried,  the  record  of  conviction 
of  the  principal  must  be  produced,  unless 
the  principal  dies  or  is  pardoned  before 
trial,  or  the  accessory  consents  to  be  ar- 
raigned without  the  production  of  the  record, 
or  both  are  tried  ;  or  unless  the  accessory  is 
charged  as  being  present  aiding  and  abet- 
ting.    State  v.  Crank,  3  Bail.  66. 

33.  On  the  trial  of  an  accessory  to  a  felony, 
the  record  of  the  principal's  conviction  is 
conclusive  as  to  that  fact,  and  frima  facie 
evidence  of  the  principal's  guilt.  State  v. 
Chittera,  2  Dev.  49.  But  the  presumption 
may  be  rebutted  by  proving  that  there  was 
no  offense  committed  by  the  principal.  Com. 
V.  Knapp,  10  Pick.  478;  and  the  confession 
of  the  principal  that  he  committed  the  offense 
is  not  admissible.  Ogden  v.  State,  12  Wis. 
533. 

34.  An  accessory  cannot  take  advantage 
of  an  error  in  the  record  of  conviction  of  the 
principal ;  and  the  attainder  of  the  principal 
while  unreversed  is  'prima  facie  evidence 
against  the  accessory  of  the  principal's  guilt. 
State  V.  Duncan,  6  Ired.  236. 

35.  On  the  trial  of  an  accessory  before  the 
fact,  the  original  minutes  of  the  trial  in  the 
Oyer  and  Terminer,  are  not  at  common  law 
competent  proof  of  the  conviction  of  the 
principal.  But  the  copy  certified  by  the 
clerk  corresponds  to  the  sworn  copy  of  the 
record  of  conviction,  and  tlie  revised  min- 
utes to  the  original  record;  and  under  the 
statute  (3  R.  S.  1851)  either  is  competent, 
if  no  record  has  been  made.  People  v. 
Gray,  35  Wend.  465. 

36.  Where  a  principal  and  accessory  are 
jointly  indicted,  and  the  accessory  is  tried 
separately,  evidence  of  the  conviction  of  the 
principal    is   not    admissible,   unless  judg- 


ment has   been  first    rendered  against  the 
l^rincipal.     State  v.  Duncan,  6  Ired.  98. 

37.  Threats  of  principal.  A  witness  for 
the  prosecution,  on  the  trial  of  an  accessory 
before  the  fact  in  a  capital  case,  being  asked 
by  the  defense  whether  he  had  stated  before 
the  examining  magistrate  what  he  was  then 
testifying,  replied  that  he  had  not,  for  the 
reason  that  he  had  been  deterred  by  the 
threats  of  the  principal,  and  was  proceeding 
to  state  the  conversation  between  himself  and 
the  principal,  when  the  defense  objected. 
Helil  that  the  evidence  was  proper.  State 
V.  Duncan,  6  Ired.  98. 

38.  Defendant  charged  as  principal. 
An  indictment  which  charges  A.  as  principal, 
and  B.  as  accessory,  is  sustained  if  the  jury 
find  the  former  guilty  as  accessoi^,  and  the 
latter  guilty  as  principal.  State  v.  Mairs, 
Coxe,  453. 

39.  Confession  of  principal.  The  con- 
fession of  a  principal  cannot  be  given  in 
evidence  against  an  accessory.  State  v. 
Newport,  4  Harring.  567.  But  the  princi- 
pal is  a  competent  witness  against  him. 
People  V.  Whipple,  9  Cow.  707. 

8te  Indictment. 


Accomplice, 


See    Accessory;    Evidence;    Pardon; 
Witness. 


AcquittaL 

See  Former  Acquittal  or  Conviction  ; 
Verdict. 


Abjounnncnt 

See  Continuance. 


Abultcrn. 

1.  What  constitutes. 
3.  Place  of  trial. 

3.  Indictment. 

4.  Evidence. 

5.  Verdict. 
G.  Judgment. 

1.  What  constitutes. 
1.  Meaning   of.     Adultery  is   the  illicit 
commerce  of  two  persons  of  the  opposite  sex, 


12 


ADULTERY 


What  Constitutes. 


one  of  whom  at  least  is  married,  and  includes 
the  crime  of  fornication.  State  v.  Hinton,  6 
Ala.  864;  Hull  v.  Hull,  3  Strobh.  Eq.  174; 
Miner  v.  People,  58  111.  59 ;  Helfrich  v.  Com. 
33  Penn.  St.  68.  A  man  may  be  guilty  of  the 
offense  although  he  effected  the  carnal  inter- 
course by  force.  State  y.  Sanders,  30  Iowa, 
583. 

2.  In  Connecticut  the  solicitation  of  an- 
other to  commit  adultery  is  indictable.  State 
V.  Avery,  7  Conn.  367.  But  it  has  been  held 
otherwise  in  Pennsylvania.  Smith  v.  Com. 
54  Penn.  St.  309.  Adultery  is  not  a  crime 
at  common  law,  except  when  connected  with 
other  matters  which  of  themselves  are  a  mis- 
demeanor ;  and  the  same  is  true  of  fornica- 
tion. Anderson  v.  Com.  5  Rand.  637 ;  Com. 
V.  Isaaks,  lb.  634 ;  State  v.  Cooper,  16  Vt.  551. 
The  latter  may  be  defined  the  carnal  and 
illicit  intercourse  of  an  unmarried  person 
with  the  opposite  sex.  Terr,  of  Mont.  v. 
Whitcomb,  1  Mont.  359. 

3.  In  Alabama  (Code,  §  3331 ;  Clay's  Dig. 
p.  431,  §  3),  adultery  and  fornication  are  dis- 
tinct offenses.  Therefore  under  an  indict- 
ment for  adultery  which  has  but  a  single 
count  the  defendant  cannot  be  convicted  if 
the  evidence  shows  that  both  parties  were 
unmarried.    Smithermanv.  State,  37  Ala.  88. 

4.  By  -whom  committed.  In  Maine,  the 
offense  may  be  committed  if  either  the  man 
or  woman  is  married.  State  v.  Hutchinson, 
36  Maine,  361.  But  when  a  divorce  from 
the  bonds  of  matrimony  has  been  decreed 
on  the  application  of  one  party  for  the  mis- 
conduct of  the  other,  the  latter  by  marrying 
again,  is  not  guUty  of  adultery.  State  v. 
Weatherby,  43  Maine,  358. 

5.  In  New  Hampshire,  adultery  may  be 
committed  by  intercourse  between  an  un- 
mamed  man  and  a  married  woman  from 
which  spurious  issue  may  arise ;  and  both 
both  parties  are  guilty.  State  v.  Wallace, 
9  New  Hamp.  515. 

6.  In  Indiana,  an  unmarried  man  who  has 
illicit  intercourse  with  a  married  woman 
may  be  convicted  of  adultery.  State  v. 
Pearce,  3  Blackf.  318.  And  in  Massachu- 
setts, it  has  been  held  that  the  offense  may 
be  committed  by  a  married  man  with  an  un- 


married  woman.      Com.  v.  Call,   31    Pick. 
509;  Com.  v.  Reardon,  6  Cush.  78. 

7.  In  Georgia,  it  has  been  held  that  a 
married  man  who  has  criminal  intercourse 
with  his  daughter,  a  single  woman,  is  guilty 
of  incestuous  adultery,  and  she  of  incestuous 
fornication.     Cook  v.  State,  11  Ga.  53. 

8.  In  Minnesota,  illicit  connection  be- 
tween a  married  man  and  an  unmarried  wo- 
man does  not  constitute  adultery  within  the 
statute,  but  fornication.  State  v.  Arm- 
strong, 4  Minn.  335. 

9.  In  Pennsylvania,  under  the  statute 
of  1705,  an  indictment  against  an  unmarried 
man  for  adultery  cannot  be  sustained ;  but 
he  may  be  convicted  of  fornication.  Resp. 
V.  Roberts,  3  Dall.  184. 

10.  In  Virginia,  where  an  indictment 
charged  a  single  man  with  Ulicit  intercourse 
with  a  married  woman,  the  offense  was  held 
to  be  fornication  in  the  man.  Com.  v. 
Lafferty,  6  Gratt.  673. 

11.  Where  husband  absents  himself. 
If  the  husband  absent  himself  from  his  wife 
for  the  space  of  seven  years,  and  a  man,  sup- 
posing that  she  has  no  husband,  marries 
and  cohabits  with  her  as  his  wife,  he  will  not 
be  criminally  punishable  for  adultery,  al- 
though it  afterward  appear  that  the  fonner 
husband  was  then  living.  Com.  v.  Thomp- 
son, 6  Allen,  591.  But  such  exemption  from 
liability  does  not  exist  when  the  desertion 
is  on  the  part  of  the  wife.  s.  c.  11  Allen, 
33. 

12.  Must  be  open  and  notorious.  In 
Illinois,  the  crime  of  adultery  cannot  be 
sustained  by  proof  of  a  single  act  of  illicit 
intercourse,  or  of  a  number  of  acts.  The 
living  together  must  be  open  and  notorious, 
as  if  the  relation  of  husband  and  wife  exist- 
ed, and  the  illicit  intercourse  must  be  habit- 
ual. Miner  v.  People,  58  111.  59;  s.  c. 
1  Green's  Crim.  Reps.  G55.  In  Missouri,  to 
constitute  the  offense  of  living  in  a  state  of 
open  and  notorious  adultery  within  the  stat- 
ute (Wagn.  Stat.  p.  500,  §  8),  the  parties  must 
reside  together  publicly  in  the  face  of  society, 
as  if  the  conjugal  relation  existed  between 
them.  State  v.  Crowner,  56  Mo.  147;  s.  c. 
3  Green's  Crim.  Reps.  616.  And  see  People 
V.  Gates,  46  Cal.  53;  s.  c.  3  Green's  Crim. 


ADULTERY. 


15 


What  Constitutes. 


Place  of  Trial. 


Indictment. 


Reps.  425.  The  same  is  true  in  Mississippi, 
under  the  statute.  Rev.  Code,  art.  8,  p.  573. 
Carotti  v.  State,  42  Miss.  334.  And  see 
Terr,  of  Mont.  v.  Whitcomb,  1  Mont.  359. 

13.  In  Alabama,  under  the  penal  code 
(ell.  6,  §  3  ;  Clay's  Dig.  431),  it  was  intimat- 
ed that  if  the  adulterous  connection  existed 
but  for  a  single  day,  the  parties  might  be 
convicted ;  and  where  the  supposed  par- 
amour of  the  defendant  lived  but  half  a  mile 
distant,  and  visited  and  remained  with  her 
all  of  one  night  every  week  for  seven  months, 
it  was  held  sufficient  to  sustain  a  conviction. 
Collins  V.  State,  14  Ala.  608.  But  it  seems 
that  in  that  State,  a  single  act  of  criminal 
intimacy  is  not  "  living  in  adultery  or  forni- 
cation" within  the  statute  (Code,  §  3231), 
although  committed  by  pre-arrangemenl. 
Smith  V,  State,  39  Ala.  554.  And  the  same 
has  been  held  as  to  occasional  acts  of  illicit 
intercourse.  A  man  and  woman  had  carnal 
intercourse  with  each  other  as  many  as  half 
a  dozen  times,  the  woman  having  a  husband, 
but  the  man  and  his  mistress  did  not  live 
together.  Held  not  to  "be  adultery  within 
the  meaning  of  the  statute  of  Texas. 
Richardson  v.  State,  37  Texas,  346. 

2.    Place  of  trial. 

14.  Improper  change  of  venue.  A  change 
of  venue  on  a  trial  for  adultery,  on  the  appli- 
cation of  the  defendant,  in  a  case  not  allowed 
by  statute,  Held  not  a  ground  for  a  reversal 
of  the  judgment  on  the  defendant's  motion, 
the  court  which  tried  the  indictment  having 
jurisdiction.  Porter  v.  State,  5  Mo.  538, 
Napton,  J.,  dissenting. 

3.  Indictment. 

15.  Parties.  One  of  two  parties  charged 
with  fornication  and  adultery,  may  be  in- 
dicted and  tried  without  or  before  the  other. 
State  V.  Parliam,  5  Jones,  416 ;  or  the  parties 
may  be  jointly  indicted.  State  v.  Bartlett, 
53  Maine,  446.  In  North  Carolina,  a  separate 
indictment  may  be  found  against  the  man 
for  fornication.  State  v.  Cox,  2  Tayl.  165. 
And  when  the  indictment  alleges  fornication 
and  adultery,  it  is  sufficient  to  charge  an  un- 
lawful "bedding  and  cohabiting"  together. 
State  V.  Jolly,  3  Dev.  &  Batt.  110. 


16.  Township.  The  defendant's  township 
need  not  be  stated  in  an  indictment  for 
adultery.  Duncan  v.  Com.  4  Serg.  &  Rawle, 
449. 

17.  Must  be  certain.  Every  material  fact 
constituting  the  offense  should  be  alleged 
with  precision  as  to  time  and  place.  An  in- 
dictment charging  that  the  defendant  at  A., 
on  the  25th  of  March,  1851,  did  commit 
adultery  with  B.,  the  wife  of  C,  she,  the 
saidB.,  being  a  married  woman,  and  the  law- 
ful wife  of  C,  was  held  bad  for  uncertainty. 
State  V.  Thurstin,  35  Maine,  205. 

18.  Where  an  indictment  alleged  that 
a  man  and  woman  "  did  live  in  a  state  of 
adultery  or  fornication,"  without  averring 
that  they  thus  lived  with  each  other,  it  was 
held  demurrable.  McGuire  v.  State,  37 
Ala.  160. 

19.  In  Georgia,  an  indictment  charged 
that  on  a  certain  day,  the  defendant,  being 
an  unmarried  woman,  had  carnal  connection 
with  J.  F.,  a  married  man.  Held  bad  on 
demurrer  under  the  statute,  in  not  charging 
the  offense  as  "  adultery  and  fornication." 
Bigby  V.  State,  44  Ga.  344  (Code,  §  4458). 

20.  Must  charge  that  woman  is  not  wife. 
The  indictment  must  allege  that  the  woman 
with  whom  the  illicit  connection  is  charged 
to  have  taken  place,  was  not  the  wife  of  the 
accused.  Moore  v.  Com.  6  Mete.  243.  An 
indictment  charged  that  the  defendant 
having  "a  living  lawful  wife,  from  whom 
he  had  never  been  divorced,  did  cohabit  and 
live  in  adultery  with  one  L.  S."  Held  in- 
sufficient, in  not  averring  that  L.  S.  was  not 
the  wife  of  the  defendant.  Tucker  v.  State^ 
35  Texas,  113. 

21.  Where  the  indictment  charges  that 
the  female,  with  whom  the  defendant  is 
alleged  to  have  committed  adultery  is  the 
lawful  wife  of  a  person  other  than  the  de- 
fendant, such  allegation  is  equivalent  to  an 
averment  that  she  is  not  the  lawful  wife  of 
the  defendant.  Com.  v.  Reardon,  6  Cush. 
78.  Where  the  indictment  alleged  that  E. 
H.,  being  then  and  there  a  married  man,  and 
having  a  lawful  wife  alive,  did  commit  the 
orime  of  adultery  with  L.  H.,  the  wife  of  M. 
H.,  it  was  held  a  sufficient  averment  that  the 
defendant  was  married  to  some  other  person 


14 


ADULTERY. 


Indictment. 


Evidence. 


than  L.  H.     State  v.  Hutcliinson,  86  Maine, 

2G1. 

22.  In  Massachusetts,  as  adultery  may  be 
committed  by  a  married  man  with  an  un- 
married woman,  the  indictment  need  not 
show  that  the  female  was  married,  or 
describe  her  by  name,  provided  it  is  charged 
and  shown  that  she  is  not  the  defendant's 
lawful  wife.  Com,  v.  Tompson,  3  Cush. 
551. 

4.  Evidence.         ^ 

23.  Time.  The  prosecution  being  called 
upon  to  elect  upon  which  of  several  acts  of 
adultery  testiiied  to,  he  would  go  to  the  jury, 
made  choice  of  one  occurring  on  the  evening 
of  January  15tb.  The  time  was  identified 
by  the  circumstances  attending  the  loss  by 
the  defendant  of  his  ticket  to  a  fair.  These 
circumstances  made  it  certain  however  that 
the  evening  in  question  could  not  have  been 
January  15th,  but  some  date  between  Feb- 
ruary 7th  and  February  28th.  Held  that 
the  error  in  the  assumed  date  was  not  ma- 
terial, provided  the  act  charged  was  sutii- 
ciently  identified  by  other  circumstances. 
Com.  v.  O'Connor,  107  Mass.  219. 

24.  Marriage.  There  must  be  proof  of 
actual  marriage,  reputation  and  cohabitation 
not  being  sufficient.  Miner  v.  People,  58  111. 
59;  8.  c.  1  Green's  Crim.  Reps.  655;  State  v. 
Eood,  12  Yt.  296. 

25.  On  the  trial  of  an  indictment  for 
adultery,  proof  of  the  marriage  of  the  de- 
fendant by  those  present  is  sufficient.  Com. 
V.  Norcross,  9  Mass.  492.  Or  it  may  be 
proved  by  the  defendant's  admissions.  Cook 
V.  State,  11  Ga.  53;  State  v.  McDonald,  25 
Mo.  176 ;  State  v.  Sanders,  30  Iowa,  582 ; 
State  V.  Libby,  44  Maine,  469  ;  State  v.  Med- 
bury,  8  R.  I.  543 ;  or  by  the  testimony  of  the 
husband  or  wife,  together  with  proof  of  con- 
tinued cohabitation.  State  v.  Wilson,  22 
Iowa,  364 ;  State  v.  Dudley,  7  Wis.  664.  It 
is  not  necessary  to  produce  the  license,  or  to 
show  that  the  person  officiating  was  author- 
ized to  solemnize  the  marriage.  Murphy  v. 
State,  50  Ga.  150. 

26.  Where  a  statute  provides  that  a  copy 
of  the  town  clerk's  record  shall  be  proof  of 
marriage,  such  copy  is  not  better  evidence 


than  proof  of  the  marriage  by  persons  who 
were  present  at  it.  State  v.  Marvin,  35  New 
Hamp.  22. 

27.  On  a  trial  for  adultery,  the  court  in- 
structed the  jury  that  "if  from  all  the  testi- 
mony in  the  case,  introduced  for  the  purpose 
of  proving  the  marriage  of  the  defendant, 
they  were  satisfied  beyond  a  reasonable 
doubt  that  he  was  legally  married,  and  his 
wife  to  whom  he  was  legally  married  was 
living  at  the  time  of  the  crime  alleged  to 
have  been  committed,  they  were  authorized 
to  find  the  fact  of  marriage."  Held  correct. 
State  V.  Libby,  44  Maine,  469. 

28.  But  in  the  same  State,  where  on  a 
trial  for  adultery,  it  was  not  proved  that  the 
marriage  was  solemnized  by  any  one  profess- 
ing to  be  either  a  justice  of  the  peace,  or  an 
ordained  or  licensed  minister  of  the  gospel, 
or  that  it  was  consummated  with  a  full  be- 
lief on  the  part  of  either  of  the  persons 
married  that  they  were  lawfully  married 
(R.  S.  ch.  59,  §  17),  and  the  only  evidence 
of  the  marriage  of  either  was  the  testimony 
of  the  jiarticeps  criminis,  that  she  was  mar- 
ried two  years  previous, by  C.  L.,  at  his  house, 
it  was  held  that  the  conviction  could  not  be 
sustained.  State  v.  Bowe,  61  Maine,  171 ; 
s.  c.  2  Green's  Crim.  Reps.  459. 

29.  Burden  of  proof.  Where  it  appeared 
that  the  defendant  four  or  five  years  previous 
to  the  commission  of  the  alleged  offense, 
was  living  with  a  man  as  his  wife,  that  she 
held  herself  out  to  the  world  as  such,  and  so 
declared,  it  was  held  that  it  was  incumbent 
on  her  to  show  his  death.  Com.  v.  Reardon, 
6  Cush.  78. 

30.  Must  support  indictment.  When  a 
single  act  is  charged  in  one  count,  acts  com- 
mitted at  different  times  and  places  cannot 
be  proved.     State  v.  Bates,  10  Conn.  372. 

31.  When  the  indictment  alleges  that  the 
act  was  committed  by  living  openly  and  no- 
toriously together,  proof  of  occasional  un- 
lawful intercourse  will  not  be  sufficient. 
Wright  v.  State,  5  Blackf.  358 ;  People  v. 
Gates,  46  Cal.  52;  s.  c.  2  Green's  Crim. 
Reps.  425. 

32.  An  indictment  for  adultery  charged 
that  the  ofl:ense  was  committed  with  Ada- 
line  Winders.     The  proof  showed  that  the 


ADULTERY. 


15 


Evidence. 


woman's  name  was  Mary  Ad  aline  Winders. 
Held  that  the  variance  was  fatal.  State  v. 
Dudley,  7  Wis.  6G4. 

33.  An  indictment  charged  adultery  with 
B.,  in  a  certain  town.  It  was  proved  that 
there  were  two  persons  in  such  town  of  the 
same  name,  father  and  son,  and  that  the 
latter  had  the  addition  of  junior  to  his 
name.  It  was  held  that  there  could  not  be 
a  conviction  without  proving  that  the  of- 
fense was  committed  with  the  father.  State 
V.  Vittum,  9  New  Hamp.  519. 

34.  Husband  not  competent  witness. 
Where  the  act  is  charged  to  have  been  com- 
mitted with  a  married  woman,  the  husband 
of  the  woman  is  not  a  competent  witness  for 
the  prosecution,  though  at  the  time  of  the 
trial  he  is  divorced  from  his  wife  on  account 
of  the  adultery.  State  v.  Jolly,  3  Dev.  & 
Batt.  110;  Com.  v.  Sparks,  7  Allen,  584; 
State  V.  Welch,  26  Maine,  30;  Miner  v. 
People,  58  111.  59;  s.  c.  1  Green's  Crim. 
Reps.  655;  contra^  State  v.  Bennett,  31  Iowa, 
24. 

35.  A  wife  and  her  paramour  being  jointly 
indicted  for  adultery,  the  wife  was  tried 
separately  and  acquitted.  Held,  on  the  trial 
of  the  other  defendant,  that  the  husband  was 
not  a  competent  witness  to  prove  that  he 
saw  his  wife  in  the  act  of  adultery.  State 
v.  Wilson,  2  Vroom  (31  N.  J.)  77. 

36.  Admissions.  On  the  trial  of  a  joint 
indictment  for  adultery,  the  confession  of 
one  party  is  not  admissible  in  evidence 
against  the  other.  Frost  v.  Com.  9  Mon. 
362.  Therefore  the  admission  of  the  woman 
in  her  paramour's  absence,  that  she  was  the 
wife  of  another,  is  not  admissible  in  evidence 
against  the  man.  Com,  v.  Thompson,  99 
Mass.  444.  Parties  cannot  be  jointly  con- 
victed of  a  single  act  of  adultery  upon  the 
admission  by  one  of  an  act  of  adultery  com- 
mitted at  one  time,  and  by  the  other  of  a 
different  act  of  adultery  committed  at  an- 
other time.     Com.   v.  Cobb,  14  Gray,  57. 

37.  Presumptions.  On  the  trial  of  an 
indictment  for  adultery,  the  fact  that  the 
defendant  resided  in  the  same  house  witli 
the  woman,  that  he  had  means  of  access  to 
her,  that  she  was  delivered  of  a  child  which 
was  apparently  a  bastard,  that  he  applied  to 


a  physician  prior  to  the  birth  of  the  child 
to  attend  her  in  her  confinement,  and  then 
called  her  his  wife,  are  circumstances  proper 
to  be  considered  by  the  jury  in  connection 
with  his  admissions,  as  evidence  of  his  guilt. 
Com.  V.  Tarr,  4  Allen,  315. 

38.  On  the  trial  of  an  indictment  for  for- 
nication, the  court  charged  the  jury  as  fol- 
lows: "  That  if  the  jury  believed  the  par- 
ties were  found  on  the  bed  together,  that 
the  door  of  the  room  was  closed,  that  there 
was  no  one  else  present  in  the  room,  that  the 
woman  was  a  prostitute,  and  that  the  de- 
fendant was  in  the  habit  of  frequently  visit- 
ing her  house,  they  were  bound  to  find  the 
defendant  guilty."  Held,  that  as  the  effect 
of  the  instruction  was  to  exclude  from  the 
consideration  of  the  jury  every  circumstance 
in  the  case,  except  such  as  were  referred  to 
by  the  court,  it  was  erroneous.  Ells  v.  State, 
20  Ga.  438. 

39.  A  record  of  conviction  of  bigamy  in 
another  State  does  not  prove  the  commis- 
sion of  adultery.  Wilson  v.  Wilson,  Wright, 
128. 

40.  It  is  erroneous  to  admit  in  evidence 
rumor  and  talk  in  the  neighborhood  that 
adultery  openly  and  notoriously  existed. 
Belcher  v.  State,  8  Humph.  63. 

41.  On  the  trial  of  an  indictment  for 
adultery,  evidence  of  acts  of  familiarity  of 
the  parties  prior  to  the  time  relied  on  by  the 
prosecution,  is  admissible  as  tending  to 
show  guilty  intent.  Com.  v.  Pierce,  11  Gray, 
447;  Com.  v.  Durfee,  100  Mass.  146;  Com. 
V.  Lahey,  14  Gray,  91 ;  State  v.  Wallace,  2 
New  Hamp.  515;  contra,  Com.  v.  Thrasher, 
11  Gray,  450. 

42.  Although  parties  cannot  be  convicted 
of  living  in  adultery,  on  proof  of  acts  which 
occurred  more  than  twelve  months  before 
the  finding  of  the  indictment,  yet  evidence 
of  such  acts  is  admissible  to  show  an 
adulterous  intercourse  between  the  parties 
within  the  period  covered  by  tlie  indict- 
ment. McLeod  V.  State,  35  Ala.  395.  The 
prosecution  offered  to  prove  that  the  defend- 
ant was  guilty  of  other  acts  of  familiarity 
with  the  woman  about  the  time  of  the  of- 
feuse  charged.  Tlie  cross-examination  of 
the  witness  left  it  doubtful  whether  or  not 


16 


ADULTEEY.— AFFRAY. 


Evidence. 


Verdict. 


Judgment. 


What  Constitutes. 


the  acts  occurred  about  the  time  or  a  year 
previous.  Held  that  the  evidence  vpas  not 
incompetent,  the  nearness  of  the  time  going 
only  to  its  cflect,  and  if  in  doubt,  being  a 
matter  for  the  determination  of  the  jury. 
Com.  V.  Morris,  1  Cush.  391. 

43.  Where  a  witness  vpho  testifies  to  a 
single  act  of  adultery  is  sought  to  be  im- 
peached, other  acts  between  the  defendant 
and  the  same  woman  committed  a  short 
time  previous  to  the  act  proved  may  te 
shown  in  corroboration.  Com.  v.  Merriam, 
14  Pick.  418. 

44.  On  the  trial  of  an  indictment  for 
adultery,  the  defendant  and  his  alleged  par- 
amour having  testified  that  the  acts  charged 
had  never  been  committed  by  them,  it  was 
held  proper  to  cross-examine  them  as  to 
their  intimacy  with  and  relations  with  each 
other  at  various  places  in  other  States.  Com. 
V.  Curtis,  97  Mass.  574. 

45.  Where  it  was  proved  that  the  defend- 
ant and  the  woman  with  whom  he  was  al- 
leged to  have  committed  the  offense  met 
several  times  in  the  defendant's  barn,  it  was 
held  competent  to  show  that  on  one  occasion 
she  was  seen  alone  near  the  barn,  with  ap- 
pearances upon  her  dress  which  looked  as 
though  she  had  recently  been  in  the  barn. 
And  where  the  husband  of  the  woman  is  a 
witness,  he  may  testify  as  to  whether  or  not 
he  is  living  with  her  at  the  time  of  the  trial. 
State  V.  Marvin,  35  New  Hamp.  32. 

46.  Acts  subsequent  to  indictment.  Ev- 
idence tending  to  show  criminal  conduct 
between  the  parties  subsequent  to  the  find- 
ing of  the  indictment  is  prima  facie  irrel- 
evant, and  only  admissible  when  connected 
with  other  relevant  evidence.  Sraithmerman 
V.  State,  40  Ala.  355;  State  v.  Crowley,  13 
lb.  173.  Therefore,  on  the  trial  of  an  in- 
dictment for  adultery  with  H.  8.,  at  T.,  in 
the  county  of  B.,  it  is  not  competent  for  the 
prosecution  to  prove  that  the  defendant, 
subsequent  to  the  time  charged  in  the  in- 
dictment, had  illicit  intercourse  with  H.  S. 
in  another  county,  called  her  his  wife,  and 
stated  that  he  had  resided  at  T.  Com.  v. 
Hcrton,  3  Gray,  354. 

47.  Proof  of  divorce.  Where,  on  the 
trial  of  an  indictment  for  adultery,  the   de- 


fendant sought  to  prove  that  he  obtained  a 
divorce  from  his  wife  in  California,  who  was 
not  there  at  the  time,  and  had  no  notice  of 
the  proceedings,  a  certificate  of  the  county 
clerk  of  the  city  and  county  of  San  Fran- 
cisco, and  ex  officio  clerk  of  the  district  court 
of  California,  of  the  judgment,  record,  and 
decree  of  divorce  entered  in  said  court  was 
held  inadmissible,  there  being  no  proof  that 
the  court  had  jurisdiction.  Com.  v.  Blood, 
97  Mass.  538. 

5.  Verdict. 

48.  Designation  of  time.  On  the  trial 
of  an  indictment  for  adultery,  the  verdict 
need  not  designate  the  time  of  the  commis- 
sion of  the  offense ;  and  it  will  not  be  a  vari- 
ance if  the  proof  does  not  show  that  the 
crime  was  committed  on  the  day  alleged, 
provided  it  be  shown  that  the  act  was  com- 
mitted on  some  day  within  the  statutory 
period.     Com.   v.  Cobb,  14  Gray,  57. 

49.  For  less  offense.  Where  an  indict- 
ment charges  in  separate  courts  the  commis- 
sion by  the  defendant,  of  rape  and  adultery, 
he  may  be  acquitted  of  the  former  and  con- 
victed of  the  latter.  Com.  v.  Squires,  97 
Mass.  50. 

50.  In  North  Carolina,  under  an  indictment 
for  adultery  and  fornication,  the  defendants 
may  be  acquitted  of  the  adultery  and  con- 
victed of  the  fornication.  State  v.  Cowell, 
4  Ired.  331. 

6.  Judgment. 

51.  For  support  of  child.  In  Pennsyl- 
vania, if  the  offense  is  pardoned,  the  court 
cannot  give  judgment  for  costs,  but  may 
make  an  order  for  the  support  of  the  child 
which  is  the  fruit  of  the  adultery.  Duncan 
V.  Com.  4  Serg.  &  Rawle,  449. 

See  Bigamy  ;  Incest. 


^ffrat). 


1.  What  constitutes. 

2.  Indictment. 

3.  Evidence. 

4.  Verdict. 

1.  What  constitutes. 
1.  Meaning.     An  affray  is  a  fighting  by 


AFFRAY. 


17 


What  Constitutes. 


Indictment. 


Evidence. 


mutual  consent,  by  two  or  more  persons,  in 
some  public  place,  to  the  terror  of  the 
people.  Simpson  v.  State,  5  Yerg.  356; 
Duncan  v.  Com.  6  Dana,  295.  But  consent 
is  not  essential.  Cash  v.  State,  2  Overt. 
198  ;  contra,  Khun  v.  State,  1  Blackf.  377. 
A  person  who  aids,  assists  and  abets  an 
aflEray  is  guilty  as  principal.  Hawkins  v. 
State,  13  Ga.  322.  See  State  v.  Lanier,  71 
N.  C.  288 ;  s.  c.  2  Green's  Crim.  Reps.  753. 

2.  By  words.  Mere  words,  when  ac- 
companied by  acts,  such  as  the  drawing  of 
knives  and  attempting  to  use  them  in  a 
public  street,  will  constitute  an  affray.  Haw- 
kins V,  State,  13  Ga.  322,  And  if  a  person, 
by  such  abusive  language  toward  another 
as  is  calculated  and  intended  to  bring  on  a 
fight,  induces  the  other  to  strike  him,  he  is 
guilty  of  an  affray,  though  he  may  be  una- 
ble to  return  the  blow.  State  v.  Perry,  5 
Jones,  9 ;  State  v.  Sumner,  5  Strobh.  53 ; 
contra,  O'Neil  v.  State,  16  Ala.  65. 

3.  On  the  trial  of  A.  and  B.,  for  an 
aflFray,  it  was  proved  that  they  quarreled  in 
front  of  the  latter's  house,  and  that  the  latter 
ordering  the  former  to  leave,  which  he  de- 
clined to  do,  B.  went  to  his  house,  several 
yards  distant,  and  returned  with  a  pistol  in 
his  hand ;  that  A.  having  meanwhile  retired 
some  thirty  yards,  came  back,  daring  him 
to  shoot,  which  he  did,  wounding  him  in 
the  leg.  Held  proj^er  for  the  court  to 
charge  the  jury  that  both  of  the  defendants 
were  guilty.  State  v.  Downing,  74  N.  C. 
184. 

4.  Where  to  be.  The  place  of  fighting 
must  have  been  public.  State  v.  Sumner,  5 
Strobh.  53.  An  inclosed  lot,  thirty  yards 
from  the  street  of  a  village,  and  seen  from 
the  street,  is  a  public  place,  within  the 
common-law  definition  of  an  affray.  Car- 
wile  v.  State,  35  Ala.  392.  But  a  highway 
is  not  necessarily  a  public  place,  within  the 
statute  against  affrays.  State  v.  Weekly,  29 
Ind.  206.  And  where  a  field,  surrounded 
by  a  dense  wood,  is  situated  a  mile  from  any 
highway  or  other  pul>lic  place,  it  does  not 
lose  its  private  character  by  the  casual  pres- 
ence of  three  persons,  so  as  to  make  two  of 
them  who  fight,  guilty  of  an  alTray.  Taylor 
V,  State,  22  Ala.  15. 

2 


5.  Where  a  fight  commenced  in  private, 
is  kept  up  until  the  parties  reach  a  public 
place  where  it  is  continued,  they  are  guilty 
of  an  affray.  Wilson  v.  State,  3  Heisk.  278 ; 
s.  c.  1  Green's  Crim.  Reps.  550. 

2.  Indictment. 

6.  Must  state  what  was  done.  An  in- 
dictment which  merely  alleges  that  the  de- 
fendants made  an  affray,  without  specifying 
what  was  done,  is  insufficient.  State  v. 
Woody,  2  Jones,  335.  And  an  information 
for  an  aSray  which  alleged  that  the  defend- 
ants fought  in  a  public  place,  but  did  not 
state  whom  or  what  they  fought,  was  held 
bad.  State  v.  Vanloan,  8  Ind.  182.  But  an 
indictment  which  charged  that  two  persons, 
with  force  and  arms,  did  make  an  aflFray  by 
fighting,  was  held  sufficient.  State  v.  Ben- 
thai,  5  Humph.  519;  State  v.  Vridely,  4  lb. 
429. 

7.  Averment  of  place.  Where  the  in- 
dictment charges  a  fighting  in  a  public 
place,  it  is  sufficient  without  further  de- 
scription of  the  place.  Wilson  v.  State,  3 
Heisk.  278 ;  s.  c.  1  Green's  Crim.  Reps.  550. 
But  an  allegation  in  an  indictment  for  an 
afl'ray,  that  the  fighting  was  in  the  town  of 
Clarksville,  is  not  sufficient.  State  v.  Hef- 
lin,  8  Humph.  84. 

3.  Evidence. 

8.  Time  and  place.  On  a  trial  for  mur- 
der, it  appeared  that  there  were  two  affrays 
between  the  prisoner  and  the  deceased,  in 
the  second  one  of  which  the  deceased  was 
killed.  The  two  affi'ays  occurred  about  four 
miles  apart,  and  the  time  between  them  was 
about  an  hour,  while  the  parties  were  driv- 
ing along  the  same  road.  Held  that  one 
afl'ray  could  not  be  deemed  a  continuation 
of  the  other,  so  as  to  make  the  conversations 
of  the  deceased  and  his  companions  in  the 
interval,  in  the  absence  of  the  defendant, 
admissible  in  evidence  as  a  part  of  the  res 
gestm.     State  v.  Potter,  13  Kansas,  414. 

9.  Proof  that  two  persons  were  seen  lying 
on  the  ground  in  close  combat,  will  not  sus- 
tain an  indictment  for  an  affray  against 
them.     Klum  v.  State,  1  Blackf.  377. 

10.  Declarations.  On  the  trial  of  an 
mdictmcut  for  discharging  a  gun  at  a  per- 


1/ 


18 


A  FFRA  Y.— AMENDMEN  T.— ANIMALS. 


Evidence. 


Verdict. 


Amendment  of  Process. 


Cruelty  to  Animals. 


son  and  wounding  him,  in  an  affray  which 
took  place  on  the  premises  of  the  defendant, 
it  was  held  that  the  defendant  might  prove 
the  declarations  of  the  prosecutor,  made 
while  on  his  way  to  the  i)lace  where  the 
affray  occurred ;  and  also,  previous  threats, 
made  by  the  prosecutor  as  to  the  defendant, 
and  previous  affrays  between  them,  if  so 
connected  with  the  affray  in  question,  as  to 
have  a  tendency  to  show  that  the  defendant 
at  the  time  had  just  cause  to  fear  serious  in- 
jury to  his  person  or  property.  State  v. 
Goodrich,  19  Vt.  116. 

4.  Verdict. 

11.  Where  one  is  acquitted.  On  the 
trial  of  several  for  an  affray,  one  or  more 
may  be  acquitted  and  the  rest  convicted. 
Cash  V.  State,  2  Overt.  198.  But  where  two 
persons  are  indicted  for  an  affray,  the  suc- 
cessful defense  of  one,  will  have  the  effect 
of  acquitting  the  other.  Hawkins  v.  State, 
13  Ga.  322. 

12.  For  assault  and  battery.  Although 
every  affray  includes  an  assault,  yet  under  an 
indictment  alleging  that  the  defendants 
made  "  an  affray  by  then  and  there  fighting, 
to  the  terror,"  «&c.,  they  cannot  be  found 
guilty  of  an  assault  and  battery.  Childs  v. 
State,  15  Ark.  204.  But  in  Virginia,  where 
an  indictment  against  two  persons  for  an 
affray  contained  no  count  for  assault  and 
battery,  and  both  were  acquitted  of  the 
affray,  it  was  held  that  a  verdict  of  assault 
and  battery  by  the  one  on  the  other  could  be 
found.  Com.  v.  Perdue  and  Dillon,  2  Va. 
Cas.  227 ;  contra,  State  v.  Allen,  4  Hawks, 
356. 

See  Assault  and  battery  ;  Former  ac- 
quittal OR  cojsviction  ;  Homicide. 


See  Evidence. 


applies  only  to  euch  matters  as  are  required 
to  be  stated  under  the  oath  of  the  party  mak- 
ing the  complaint  or  presentment.  State  v. 
Smith,  54  Maine,  33. 


^incnbmcnt. 

Of  Process.  The  rule  that  criminal  pro- 
cesses cannot  be  amended  except  by  consent 
of  the  party  against  whom  they  are  issued, 


1.  Cruelty  to. 

2.  Rescuing. 


1.   Cruelty  to. 

1.  Nature  of  offense.  Maiming  or  wound- 
ing an  animal  without  killing  it,  is  not  an 
indictable  offense  at  common  law.  State  v. 
Beekman,  3  Dutch.  124;  State  v.  Manuel,  73 
N.  C.  201;  People  v.  Stokes,  1  Wheeler's 
Cr.  Cas.  Ill,  contra. 

2.  In  Massachusetts,  the  cruel  treatment 
of  animals  which  the  statute  contemplates 
(Gen.  Stats,  ch.  165,  §41),  is  the  same  whether 
inflicted  by  the  owner  of  the  animal  or  by 
another;  and  if  the  defendant's  object  would 
have  been  lawful  for  any  person,  and  his  act 
was  not  an  excessive  and  cruel  use  of  force, 
he  cannot  be  convicted.  Com.  v.  Lufkin,  7 
Allen,  579. 

3.  Indictment.  An  indictment  for  ma- 
licious mischief  in  wounding  and  cruelly 
beating  and  abusing  an  animal,  which  omits 
to  name  the  owner  of  the  animal,  is  insuffi- 
cient. State  V.  Smith,  21  Texas,  748.  But 
in  Massachusetts,  an  indictment  under  the- 
statute  (Gen.  Stats,  ch.  165,  §  41),  for  cruelly 
beating  a  horse,  need  not  allege  that  the 
horse  was  the  property  of  any  person,  or  de- 
scribe the  horse.  Com.  v.  McClellan,  101 
Mass.  34. 

4.  A  complaint  for  killing  a  deer  contrary 
to  law,  which  alleges  that  the  defendant 
"did  drive,  worry  and  kill  a  live  animal 
called  a  deer,"  is  not  bad  for  duplicity. 
State  V.  Norton,  45  Vt.  258. 

5.  Evidence.  On  the  trial  of  an  indict- 
ment for  cruelly  whipping  a  horse,  evidence 
is  admissible  to  show  that  the  horse  was  kind 
and  manageable  unless  harassed  with  the 
whip  ;  and  a  witness  may  state  that  he  saw 
nothing  vicious  or  obstinate  in  the  horse, 
and  also  the  apparent  effect  of  the  blows 


ANIMALS.— APFEAL.—AKREST. 


19 


Rescuing. 


Nature  and  Power  of  Arrest,  in  General. 


upon  the  horse.     State  v.   Avery,   44  New 
Hamp.  392. 

6.  On  the  trial  of  a  complaint  for  willfully 
and  cruelly  overdriving  a  horse,  it  is  not 
necessary  to  prove  that  the  defendant's  pur- 
pose was  to  tortui'e  the  animal.  Pain  in- 
flicted in  wanton  and  reckless  disregard  of 
the  suffering  it  might  occasion,  would  be 
equally  criminal.  The  following  instructions 
were  held  all  that  the  defendant  could 
claim:  That,  "  if  in  the  proper  exercise  of 
his  own  judgment,  he  thought  he  was  not 
overdriving  the  horse,  he  must  be  ac- 
quitted ;  and  that  he  could  not  be  convicted 
unless  he  knowingly  and  intentionally  over- 
drove.    Com.  V.  Wood,  111  Mass.  408. 

7.  In  the  same  case,  the  defendant's 
mother  testified  that  she  had  seen  him  driv- 
ing the  horse,  and  that  he  was  not  then  over- 
driving. On  cross-examination,  she  denied 
that  she  had  said  that  the  defendant  was 
guilty.  Having  been  re-examined  by  the  de- 
fense as  to  the  alleged  conversation,  it  was 
held  competent  for  the  prosecution  to  prove 
that  she  had  said  so.  Com.  v.  Wood, 
supra. 

2.  Kescuing. 

8.  Indictment.  An  indictment  for  rescu- 
ing cattle  while  being  driven  to  the  pound, 
should  allege  that  they  were  found  either 
damage  feasant,  or  going  at  large  contrary 
to  the  statute,  and  that  the  complainant  was 
about  to  impound  them  for  that  cause ;  and 
the  defendant  well  knowing  the  premises, 
unlawfully  and  against  the  will  of  the  com- 
plainant, with  force  and  arms,  rescued  the 
said  animals  out  of  his  custody  and  prevented 
the  complainant  from  impounding  the  same, 
contrary  to  the  form  of  the  statute,  &c. 
State  v.  Barrett,  42  New  Ilanip.  46G. 


^jjpcaL 


1.  By  State.  The  State  is  not  entitled  to 
an  appeal  in  a  criminal  prosecution.  State 
V.  Jones,  1  Mur[)hy,  257. 

2.  Jurisdiction.  If  an  appeal  has  been 
given  in  all  cases  within  the  jurisdiction  of 
the  sessions,  and  afterwards  its  jurisdiction 
is  extended  to  new  cases,  an  appeal  will  lie 


in  those  new  cases,  because  it  would  be  a 
reasonable  presumption  that  the  Legislature 
did  not  intend  that  its  jurisdiction  should  in 
any  case  be  final.  Com.  v.  Messenger,  4 
Mass.  462. 

3.  An  appeal  from  the  decision  of  a  cir- 
cuit judge  denying  a  writ  of  Jiaheas  corpus, 
will  not  be  heard,  if  before  the  application 
for  the  hearing  of  the  appeal  the  petitioner 
has  been  set  at  liberty,  and  has  gone  beyond 
the  jurisdiction  of  the  court.  E^  parte 
Pereira,  6  Rich.  149. 

4.  Objection  on.  An  objection  to  the  ad- 
missibility of  evidence,  different  from  that 
made  at  the  trial,  cannot  be  entertained  on 
appeal.  Where  therefore,  on  a  trial  for 
murder,  a  witness  was  asked  if  he  saw  a 
knife  on  the  premises,  which  was  objected 
to  as  leading,  admitted,  and  exception 
taken,  it  w^as  held  that  it  could  not  be  urged 
on  appeal,  that  the  evidence  was  improper 
on  the  ground  that  the  indictment  contained 
no  averment  that  the  homicide  was  produced 
by  the  knife.  Shufflin  v.  People,  6  N.  Y. 
Supm.  N.  S.  215. 

5.  Judgment.  Where  the  defendant  de- 
murred to  an  indictment  for  a  misdemeanor, 
in  the  court  below,  and  judgment  was  there 
rendered  against  the  people,  which  was  re- 
versed on  error,  it  was  held  that  the  appel- 
late court  must  give  a  final  judgment  for  the 
people  on  the  demurrer,  and  pass  sentence 
on  the  defendant ;  and  that  he  could  not  be 
permitted  to  withdraw  the  demurrer  and 
l^lead.     People  v.  Taylor,  3  Denio,  91. 

See  Writ  of  error. 


Arrest. 


1.  Nature  and  power  of,  in  general. 

2.  By  private  person. 

3.  By  officer. 

1.  Nature  and  power  of,  in  general. 

1.  What  is  an  arrest.  No  manual  touch- 
ing of  the  body  or  actual  force  is  necessary 
to  constitute  an  arrest.  It  is  sufficient  if  the 
party  be  within  the  power  of  the  officer  and 
submit  to  the  arrest.  Gold  v.  Bisscl,  1  Wend. 
215  y contra,  2  New  Ilamp.  318;  Huntington 


20 


ARREST. 


Nature  and  Power  of. 


By  Private  Person. 


By  Officer. 


V.  Scbultz,  Harpex-,  453;  U.  S.  v.  Benuer,  1 
Bald.  239;  Lawson  v.  Buzines,  3  Harring. 
■116:  State  v.  Malion,  lb.  5G8. 

2.  Law  governing.  The  law  of  the  State 
in  which  an  arrest  is  made  governs  as  to  its 
legality,  and  when  made  in  another  State 
under  legal  process  it  will  be  prima  facie 
justiiiable.  Stouffer  v.  Latshaw,  2  Watts, 
165. 

3.  Exemption  from.  Members  of  the  State 
militia  who  are  exempted  by  law  from  arrest 
on  civil  process  while  under  military  duty, 
do  not  cease  to  be  exempt  when  the  force  to 
which  they  belong  is  mustered  into  the  serv- 
ice of  the  United  States.  People  v.  Camp- 
bell, 40  N.  Y.  133,  Grover,  Lott  and  James, 
JJ.,  dissen(i))g. 

4.  Ground  of,  may  be  inquired  into.  The 
court  may  inquire  as  to  whether  any  evi- 
dence was  given  of  the  defendant's  guilt  on 
the  application  for  his  arrest,  and  if  none 
was  produced,  quash  the  indictment;  but  it 
cannot  pass  upon  the  sufticiency  of  the  evi- 
dence if  any  was  given.  An  information 
not  supported  by  oath  or  affirmation  will 
not  authorize  a  warrant  of  arrest.  U.  S.  v. 
Shepard,  1  Abb.  431. 

5.  Where  an  arrest  is  made  regular  and 
lawful  in  form  by  the  perjury  of  the  party 
procuring  it,  he  will  not  be  permitted  to 
derive  any  benefit  from  it.  Strong  v.  Gran- 
nis,  26  Barb.  122. 

2.  By  pkivate  person. 

6.  "Without  warrant.  A  private  individ- 
ual may  lawfully  arrest  without  warrant  one 
who  has  committed  a  felony ;  and  he  may 
arrest  on  suspicion  where  a  crime  has  been 
committed,  and  there  is  good  reason  to  sus- 
pect the  person  arrested.  Burns  v.  Erben, 
40  N.  Y.  463.  But  for  mere  misdemeanors, 
after  their  commission,  an  arrest  can  only  in 
general  be  made  upon  a  warrant  from  a 
magistrate.     People  v.  Adler,  3  Parker,  249. 

7.  The  felony  which  will  justify  an  arrest 
by  a  private  individual  upon  suspicion  with- 
out a  warrant,  must  be  an  offense  that  may 
be  tried  by  the  courts  of  the  State  in  which 
the  arrest  is  made.  Mandeville  v.  Guernsey, 
51  Barb.  99. 

8.  A  private  person  may  arrest  another 


while  in  the  act  of  committing  an  aff"ray, 
without  warrant.  Knot  v.  Gay,  1  Root,  66. 
It  is  a  defense  to  an  indictment  for  assault 
and  battery  that  the  complainant  had  com- 
mitted petit  larceny,  and  that  the  alleged 
assault  and  battery  by  the  defendant  con- 
sisted in  arresting  the  complainant  theretbr 
without  process  and  delivering  him  to  a 
public  olficer.  People  v.  Adler,  3  Parker, 
249. 

9.  It  is  lawful  for  a  private  person  to 
arrest  one  who,  after  trial  and  conviction 
and  sentence  to  the  house  of  reformation, 
has  escaped  therefrom  without  actual  break- 
ing or  force.  State  v.  Holmes,  48  New 
Hamp.  877. 

10.  Disposal  of  prisoner.  A  private  per- 
son who  may  have  arrested  another  for 
treason  or  felony  actually  committed,  may 
convey  him  to  the  jail  of  the  county,  or 
may  take  him  before  a  justice  of  the  peace. 
Com.  V.  Deacon,  8  Serg.  &  Rawle,  47. 

11.  By  command  of  officer.  Where  an 
Olficer  verbally  authorizes  another  to  assist 
him  in  arresting  another,  the  acts  of  such 
person  are  valid  if  he  take  the  prisoner. 
But  both  should  be  in  pursuit,  though  the 
officer  be  not  in  sight  when  the  arrest  is 
made.     Com.  v.  Field,  13  Mass.  321. 

12.  Where  an  indictment  charged  that 
one  B.  was  arrested  by  W.,  a  deputy  sheriff, 
by  lawful  authority,  and  that  B.  resisting 
the  officer,  the  defendant  was  summoned  by 
the  officer  to  assist  but  he  refused,  it  was 
held  that  the  indictment  was  insufficient  in 
not  setting  forth  the  authority  of  the  olficer 
to  make  the  arrest.  State  v.  Shaw,  3  Ired. 
20. 

13.  Must  give  notice.  Unless  a  private 
person  in  arresting  another  for  felony  noti- 
fies the  party  arrested  of  his  purpose,  he  will 
be  guilty  of  trespass.  State  v.  Bryant,  65 
N.  C.  327. 

3.  By  officer. 

14.  Without  warrant.  At  common  law, 
a  constable  may  arrest  for  a  reasonable  cause 
of  suspicion,  or  for  a  breach  of  the  peace  in 
his  presence,  and  deposit  the  prisoner  in 
jail,  and  the  jailer  is  bound  to  receive  him. 
And  it  is  his  duty  to  present  to  the  court  all 
offenses  inquirable  into  by  it.     McCuUough 


AEEEST. 


21 


By  Officer. 


V.  Com.  67  Penn.  St.  30;  Com.  v.  Deacon,  8 
ScTg.  &  Rawle,  47. 

15.  In  cases  of  misdemeanor,  a  peace 
officer  may  arrest  on  view,  or  under  a  war- 
rant. In  cases  of  felony,  he  may  arrest  with- 
out a  warrant  upon  information,  where  he 
has  reasonable  cause.  But  Avhen  a  private 
person  anests  another  for  felony  on  sus- 
picion, nothing  short  of  proving  the  felony 
will  justify  the  arrest.  Doering  v.  State, 
49  Ind.  56;  Eames  v.  State,  6  Humph.  58; 
Rohan  v.  Sawin,  5  Cush.  281. 

16.  A  person  standing  in  the  streets  of  a 
city  used  abusive  language  to  a  sergeant  on 
duty  in  a  fort,  whereupon  the  sergeant  ar- 
rested him  with  his  military  guard,  and  con- 
ducted him  with  fixed  bayonets  to  the  gar- 
rison. Held  that  the  sergeant  was  justified. 
Oglesby  v.  State,  39  Texas,  53. 

17.  An  officer  cannot  lawfully  arrest  one 
without  a  warrant  for  a  crime  proved  or  sus- 
pected, if  such  crime  be  not  a  felony.  Com. 
v.  Carey,  12  Cush.  246 ;  Com.  v.  McLaughlin, 
lb.  615;  contra^  State  v.  Brown,  5  Barring. 
505. 

18.  A  police  officer  may  lawfully  enter  a 
disorderly  house  to  suppress  the  disorder, 
and  arrest  the  disorderly  persons  therein. 
State  V.  Lafferty,  5  Harring.  491. 

19.  Right  to  break  open  doors.  An 
officer,  acting  under  criminal  process  may 
break  open  the  outer  doors  of  a  dwelling- 
house,  either  in  the  day  or  night  time,  in 
order  to  execute  such  process,  having  first 
demanded  admittance  and  been  refused. 
Bell  V.  Clapp,  10  Johns.  263 ;  State  v.  Smith, 
1  New  Ilamp.  346 ;  State  v.  Shaw,  1  Root, 
134;  Kelley  v.  Wright,  1  Root,  83. 

20.  If  an  officer  having  a  warrant  to 
arrest  a  man,  finds  him  at  his  house,  he  may 
not  break  into  the  house  until  he  has  de- 
manded admittance  and  been  refused.  He 
may  not  attack  the  house,  or  the  persons 
within,  with  violence  until  he  has  been  re- 
sisted ;  and  if  he  proceeds  to  do  so,  he  justi- 
fies violence.  If  an  officer  conies  without 
lawful  authority  to  arrest  a  man  in  his  own 
house,  the  party  is  not  bound  to  yield,  but 
may  resist  force  with  force,  provided  he  do 
not  go  beyond  the  line  of  resistance  propor- 
tioned to  the  character  of  the  assault.     If 


death  ensue  from  the  abuse  of  the  power  to 
arrest,  or  of  the  right  to  resist,  it  will  be  an 
unlawful  killing;  but  unless  there  is  malice, 
it  will  be  manslaughter  only.  State  v.  Oliver, 
2  Houst.  Del.  585. 

21.  How  made.  An  officer  must  make  the 
arrest  peaceably  and  with  as  little  violence 
as  possible.  But  if  resisted,  he  may  use  force 
sufficient  to  effect  his  purpose.  State  v. 
Mahon,  3  Harring.  568. 

22.  If  a  statute  require  that  a  criminal 
process  shall  be  executed  by  a  specified  per- 
son, the  execution  of  such  process  by  any 
other  person .  is  void.  Reynolds  v.  Orvis, 
7  Cow.  269;  Wood  v.  Ross,  11  Mass.  271; 
Com.  V.  Foster,  1  Mass.  488. 

23.  An  officer  cannot  lawfully  arrest  an- 
other by  a  wrong  name,  though  he  was  the 
person  intended  to  be  arrested,  unless  it  be 
shown  that  he  was  known  as  well  by  one 
name  as  the  other.  Griswold  v.  Sedgwick,  1 
Wend.  126 ;  s.o.  6  Cow.  456 ;  Mead  v.  Hawes, 
7  Cow.  322;  Gurnsey  v.  Lovell,  9  Wend.  319. 

24.  Notice  of  authority.  When  an  arrest 
is  made  by  one  who  is  not  a  known  officer, 
he  is  bound  at  the  time  to  show  his  author- 
ity. State  V.  Kirby,  2  Ired.  201.  A  party 
arrested  has  a  right  to  see  the  warrant  at  the 
time;  although  if  he  resists  before  an  oppor- 
tunity is  given  to  the  officer  to  comply  with 
his  demand,  the  officer  may  secure  the  arrest 
first.  Drennan  v.  People,  10  Mich.  169, 
per  Campbell,  J.,  referring  to  Com.  v.  Cooley, 
6  Gray,  350 ;  State  v.  Phinney,  42  Me.  384  ; 
Com.  V.  Field,  13  Mass.  321 ;  State  v.  Curtis, 
1  Hayw.  471 ;  Arnold  v.  Steves,  10  Wend. 
514. 

25.  An  officer  may  arrest  a  person  for  fel  - 
ony,  althouc;h  the  warrant  is  in  the  posses- 
sion of  another  officer;  but  he  should  tell  the 
accused  the  reason  of  his  arrest.  Where  the 
officer,  instead  of  doing  this,  simply  told  the 
defendant  that  he  had  a  warrant  for  him, 
and  when  the  defendant  asked  to  see  it,  he 
refused,  saying  he  was  not  l)ound  to  show 
it,  and  at  once  seized  the  defendant,  who 
cocked  and  pointed  a  loaded  revolver  at  the 
officer,  it  was  held  that  a  conviction  of  the 
defendant  for  an  assault  with  intent  to  mur- 
der could  not  be  sustained.  Drennan  v. 
People,  10  Mich.  169. 


22 


ARREST. 


By  Officer. 


26.  When  notice  not  required.  When 
both  the  official  character  of  the  party  mak- 
ing the  arrest,  and  the  charge  upon  which  it 
is  made,  are  known  to  the  party  arrested, 
notice  is  not  required  without  demand.  State 
V.  Townsend,  5  Harring.  487.  Where  there- 
fore on  a  trial  against  an  officer  for  man- 
slaughter, alleged  to  have  been  committed  in 
the  attempt  to  arrest  the  deceased  without 
a  warrant,  it  appeared  that  the  deceased 
knew  the  officer  and  the  cause  of  arrest,  it 
was  held  error  for  the  court  to  charge  that, 
if  the  deceased  had  no  notice  of  the  cause  of 
arrest,  it  was  lawful  for  him  to  resist,  and  if 
in  such  resistance  the  deceased  fired  upon 
the  defendant,  the  latter  had  no  right  to  re- 
turn the  fire  until  he  had  desisted  from  the 
attempted  arrest  in  such  manner  that  the 
deceased  had  notice  that  the  illegal  attempt 
to  arrest  him  was  abandoned.  Wolf  v. 
State,  19  Ohio,  N.  S.  485. 

27.  Where  a  person  is  taken  in  the  com- 
mission of  an  offense,  or  upon  fresh  pursuit 
afterward,  or  when  a  violent  assault  is  made 
upon  the  officer,  notice  is  not  required,  be- 
cause in  either  case,  the  accused  is  presumed 
to  know  the  cause  of  his  arrest.  Lewis  v. 
State,  3  Head.  127;  People  v.  Pool,  27  Cal. 
592. 

28.  On  void  process.  If  a  criminal  pro- 
cess is  insufficient  on  the  face  of  it,  and  such 
defect  is  apparent,  the  officer  will  not  be 
justified,  and  if  he  act  under  it,  he  will  be 
liable  as  a  trespasser.  Sandford  v.  Nichols, 
13  Mass.  286;  Lam2)son  v.  Landon,  5  Day, 
508;  Griswold  v.  Sedgwick,  6  Cow.  456; 
Eeynolds  v.  Corp,  3  Caines,  269 ;  Grumond 
V.  Raymond,  1  Conn.  40. 

29.  If  an  officer,  wlio  has  two  warrants, 
the  one  legal  and  the  other  illegal,  says  at 
the  time  of  arrest  that  he  makes  the  arrest 
by  virtue  of  the  illegal  warrant,  it  is  not 
false  imprisonment,  the  lawfulness  of  the 
arrest  not  depending  upon  his  declaration, 
but  upon  the  sufficiency  of  his  authority. 
State  V.  Kirby,  2  Ired.  201. 

30.  On  the  trial  of  an  indictment  for  the 
murder  of  a  constable  while  endeavoring  to 
arrest  the  defendant  on  a  warrant  which 
had  been  indorsed  served  by  a  deputy  sheriff, 


it  was  held  that  if  it  appeared  from  parol 
evidence,  that  the  warrant  had  never  in  fact 
been  served,  but  that  it  bad  been  given  back 
by  the  magistrate  to  the  officer  for  service, 
it  was  so  far  valid  in  the  hands  of  the  de- 
ceased as  to  authorize  him  to  arrest  the 
defendant  on  it  and  take  him  before  the 
magistrate.  Com.  v.  Moran,  107  Mass. 
239. 

31.  Out  of  State.  Where  a  person  in- 
dicted for  forgery  escaped  to  another  State, 
where  he  was  arrested  and  taken  back  -nith- 
out  process  and  imprisoned,  it  was  held,  on 
an  application  to  release  him  by  a  writ  of 
habeas  corpus,  that  though  the  arrest  was 
illegal,  it  was  not  a  ground  for  the  prison- 
er's discharge.  Dow's  Case,  18  Penn.  St. 
37. 

32.  Where  a  deputy  sheriff  having  a  war- 
rant for  the  arrest  on  a  charge  of  grand  lar- 
ceny of  a  person  who  was  in  Canada,  got  a 
police  officer  there  to  take  him  by  force 
across  the  State  line,  where  be  was  arrest- 
ed, committed  by  a  magistrate  and  subse- 
quently indicted,  it  was  held  that  there  was 
no  reason  for  quashing  the  indictment  or  dis- 
charging the  prisoner  from  arrest.  People 
v.  Rowe,  4  Parker,  253. 

33.  Re-arrest.  A  police  officer  having 
arrested  a  person  for  being  disorderly,  while 
intoxicated,  released  him  on  his  promise  to 
go  home  peaceably.  It  was  held  that  the 
officer  had  a  right  to  re-arrest  such  person 
upon  his  going  into  a  drinking  saloon  before 
he  had  left  the  officer's  sight.  Com.  v.  Has- 
tings, 9  Mete.  259. 

34.  Where  a  person  arrested  by  warrant 
indorsed  pursuant  to  the  statute  of  New 
York,  is  discharged  by  a  magistrate  of  the 
county  in  which  the  arrest  is  made,  upon  a 
recognizance,  the  officer  cannot  lawfully 
make  a  re-arrest  without  a  new  warrant. 
Doyle  V.  Russell,  30  Barb.  300 ;  disapproving 
Clark  V.  Cleveland,  6  Hill,  349,  Hogeboom, 
J.,  dissenting. 


^vrc0t  of  Subgmmt. 


See  Judgment. 


ARSON. 


23 


What  Constitutes. 


Subject  of. 


3.VS0U. 


1.  What  constitutes. 

2.  Subject  op. 

3.  Indictment. 

4.  Evidence. 

5.  Verdict. 

1.  What  constitutes. 

1.  The  burning.  To  constitute  arson  at 
common  law,  tliere  must  be  an  actual  burn- 
ing of  the  whole  or  some  part  of  the  house ; 
but  it  is  not  necessary  that  any  part  of  the 
house  should  be  wholly  consumed.  Mary  v. 
State,  24  Ark.  44 ;  State  v.  Sandy,  3  Ired. 
570 ;  People  v.  Butler,  16  Johns.  203 ;  Com.  v. 
Yan  Schaack,  16  Mass.  105.  It  is  sufficient 
if  the  wood  of  the  house  be  charred  in  a 
single  place,  so  as  to  destroy  its  fibre.  People 
V.  Haggerty,  46  Cal.  354 ;  s.  c.  2  Green's  Crim. 
Reps.  431. 

2.  On  the  trial  of  an  indictment  for  setting 
fire  to  a  barn,  and  thereby  burning  a  dwell- 
ing-house, the  defendant  requested  the 
judge  to  charge  that  the  jury  "must  be 
satisfied  that  some  portion  of  the  dwelling- 
house  had  been  actually  on  fire  by  reason  of 
the  burning  of  the  barn,  and  had  been  burned 
and  consumed  thereby;  and  that  the  sub- 
stance and  fibre  of  the  wood  of  such  portion 
so  on  fire  was  actually  destroyed."  The 
judge  declined  so  to  charge,  but  instructed 
the  jury  that  "they  must  be  satisfied  that 
some  portion  of  the  dwelling-house  had  been 
actually  on  fire  by  reason  of  the  burning  of 
the  bam,  and  had  been  burned  thereby,  so 
that  the  substance  of  the  wood  of  such  por- 
tion so  on  fire  was  actually  burned."  Ileld 
correct.  Com.  v.  Tucker,  110  Mass.  403; 
s.  c.  2  Green's  Crim,  Heps.  266. 

3.  Where  the  language  of  a  statute  was : 
"If  any  person  shall  willfully  and  malicious- 
ly set  fire  with  intent  to  burn,  to  the 
dwelling-house  of  another,  or  any  outbuild- 
ings adjoining  thereto,  or  to  any  other 
building,"  &c.,  it  was  held  that  it  was  to  be 
understood  the  same  as  put  fire  to  or  place 
fire  upon,  or  against,  or  put  fire  in  connection 
with,  and  that  it  was  not  necessary  to  a  con- 
viction that  the  building  should  have  been 


actually   set   on   fire.     State  v.  Dennin,  32 
Vt.  158. 

4.  Guilty  intent.  A  design  to  produce 
death  is  not  necessary  to  constitute  arson  in 
the  first  degree,  either  at  common  law  or 
under  the  statute  of  New  York ;  and  it  is 
immaterial  whether  the  prisoner  knew  that 
the  building  burned  had  usually,  or  at  any 
time  been  occupied  by  persons  lodging 
therein.     People  v.  6rcutt,  1  Parker,  252. 

5.  The  intent  maliciously  to  set  fire  to 
the  building  of  another,  and  in  pursuance 
of  such  intent,  to  apply  fire  to  a  boat  in  the 
same,  or  to  other  combustible  matter,  is  a 
misdemeanor  at  common  law.  Com.  v. 
Francis,  Thach.  Crim.  Cas.  240. 

6.  In  New  York,  it  is  not  error  for  the 
court,  on  a  trial  for  arson,  to  refuse  to 
charge,  that. if  the  fire  did  not  reach  the 
house  of  P.  until  after  she  was  aroused,  and 
she  had  time  to  escape  before  the  fire  reached 
her  house,  and  she  neglected  to  do  it,  it  was 
not  arson  in  the  first  degree,  the  statute 
making  the  fact  that  some  human  being  is 
in  the  house  at  the  time  it  is  set  on  fire,  the 
test  of  peril,  and  drawing  no  distinction  as 
to  its  imminency.  Woodford  v.  People, 
5  N.  Y.  Supm.  N.  S.  539. 

2.  Subject  of. 

7.  House  of  another.  At  common  law, 
the  burning  must  be  of  the  house  or  out- 
house of  another,  and  it  is  necessary  to  aver 
and  prove  ownership  in  another.  In  Con- 
necticut, to  constitute  arson  in  burning  an 
office,  store,  or  shop,  under  the  statute,  the 
building  must  be  the  property  of  another. 
But  the  absolute  title  or  entire  interest  need 
not  be  in  the  person  named  in  the  informa- 
tion as  the  party  injured.  Such  a  possession 
as  gives  a  special  property  while  it  exists  is 
sufficient.     State  v.  Lyon,  12  Conn.  487. 

8.  What  deemed  a  dwelling-house.  In 
New  York,  any  building  is  a  "dwelling- 
house,"  witliin  the  meaning  of  the  statute 
defining  arson  in  tlie  first  degree,  which  is 
wholly  or  in  part  usually  occupied  by  per- 
sons lodging  therein  at  night,  althougli 
other  parts  or  the  greater  part  may  be  used 
for  an  entirely  different  purpose.  People  v. 
Orcutt,  1  Parker,  252.     And  the  court  will 


24 


ARSOK. 


Subject  of. 


not  inquire  into  the  tenure  or  interest  of  the 
occupant.  People  v.  Van  Blarcum,  2  Johns. 
105. 

9.  Where,  in  an  indictment  for  burning  a 
dwelling-house,  the  building  was  described 
as  built  and  designed  for  a  dwelling-house, 
and  constructed  in  the  usual  manner,  and  it 
appeared  that  it  was  not  yet  painted,  and 
that  not  quite  all  the  glass  was  set  in  one 
of  the  outer  doors,  and  that  the  building 
had  never  been  occupied,  and  was  not  parcel 
nor  appurtenant  to  any  other,  it  was  held 
that  this  was  not  a  dwelling-house  in  such  a 
sense  as  that  to  bum  it  constituted  arson. 
State  V.  McGowan,  20  Conn.  245. 

10.  In  Massachusetts,  to  constitute  arson, 
within  the  statute  (1  R  S.  ch,  126,  §  1),  the 
building  burned  must  be  a  residence,  and  if 
the  occupier  is  temporarily  absent  there 
must  be  the  purpose  of  return.  It  cannot 
be  the  dwelling-house  of  an  individual  be- 
fore he  has  begun  to  occupy  it.  Com.  v. 
Barney,  10  Cush.  478. 

11.  In  Georgia,  although  a  person  is  tem- 
porarily absent  from  a  dwelling-house  in 
which  he  lives  and  has  his  household  effects, 
yet  if  the  house  is  burned  during  such  tem- 
porary absence,  it  is  the  burning  of  an  occu- 
pied dwelling-house  within  the  meaning  of 
the  statute  punishing  arson.  Johnson  v. 
State,  48  Ga.  116. 

12.  On  the  trial  of  an  indictment  for  set- 
ting fire  to  and  burning  a  house,  the  evidence 
tended  to  prove  that  the  building  had  been 
erected  and  used  as  a  dwelling-house,  and 
for  no  other  purpose  (except  as  a  place  of 
deposit  for  some  fodder  for  a  short  time), 
until  about  ten  months  before  it  was  burned, 
and  that  the  owner  had  been  in  the  habit  of 
renting  it  out  as  a  dwelling,  and  had  done 
so,  and  ordered  it  to  be  cleaned  for  the  ten- 
ant a  short  time  before  it  was  burned,  who 
had  not  taken  possession.  Held  not  a  dwell- 
ing-house within  the  statute  of  Virginia. 
Code,  ch.  192,  §  2;  Hooker  v.  Com.  13 
Graft.  763. 

13.  As  arson  is  the  burning  of  the  dwell- 
ing-house of  another,  Avhere  the  husband 
lives  with  his  wife,  and  has  a  rightful  pos- 
session jointly  with  her  of  the  dwelling- 
house  which  she  owns,  and  they  both  oc- 


cupy, he  cannot  be  guilty  of  arson  in  burn- 
ing it.  Whether  if  the  family  relation  is 
broken  up  in  fact,  and  the  husband  and  wife 
are  living  apart,  the  same  exemption  from 
criminal  liability  exists — query.  Snyder  v. 
People,  26  Mich.  108 ;  s.  c.  1  Green's  Crim. 
Reps.  547. 

14.  If  the  building  set  on  fire  is  appro- 
priated to  ordinary  domestic  uses,  and  is 
situated  so  near  to  the  dwelling-house  as  to 
endanger  it,  it  is  arson.  Gage  v.  Shelton,  3 
Rich.  242.  A  dwelling-house,  within  the 
meaning  of  the  statute  of  Maine  punishing 
the  Imrniug  of  a  dwelling-house  within  the 
curtilage,  must  be  a  house  either  actually 
occupied  by  some  jaerson,  or  temporarily  left 
with  the  intention  of  returning,  and  the  fact 
that  the  house  was  intended  for  occupation, 
or  capable  of  being  so  occupied,  is  not 
suSicient.  State  v.  Warren,  33  Maine,  30. 
And  see  State  v.  Shaw,  31  lb.  523;  Com. 
V.  Flynn,  3  Cush.  529. 

15.  Burning  cne's  own  house.  Setting 
fire  to  one's  own  house  in  a  city,  the  house 
being  occupied  by  himself  and  other  tenants, 
is  a  great  misdemeanor.  Ball's  Case,  5  City 
Hall  Rec.  85 1. 

16.  It  is  not  a  crime  at  common  law  for  a 
man  to  destroy  his  own  property  by  fire, 
unless  it  be  accompanied  by  an  injury  to  or 
by  a  design  to  injure  some  other  person. 
Bloss  V.  Tobey,  2  Pick.  325. 

17.  In  New  York,  arson  in  the  first  degree 
may  be  committed  by  a  person  burning  his 
own  house.  Shepherd  v.  People,  19  N.  Y. 
537;  overruling  People  v.  Henderson,  1 
Parker,  560.  In  New  Hampshire,  under  a 
statute  (Gen.  Stats,  ch.  262,  §  1),  providing 
that  "If  any  person  shall  willfully  and  ma- 
liciously burn  any  dwelling-house,"  he  should 
be  punished,  etc.,  it  was  held  that  an  in- 
dictment might  be  sustained  which  charged 
the  defendant  with  feloniously,  willfully,  and 
maliciously  burning  his  own  dwelling-house. 
State  V.  Hurd,  51  New  Hamp.  176. 

18.  Tenant  setting  fire  to  house.  In 
Indiana,  an  indictment  for  arson  cannot  be 
maintained  against  one  who  is  in  possession 
of  a  house  as  a  tenant  for  a  year,  and  will- 
fully bmns  it.  McNeal  v.  Woods,  3  Blackf.. 
485. 


AESON. 


25 


Subject  of. 

19.  In  Alabama,  where  a  person  under  a 
lease  of  a  house  on  public  land  for  one  year 
went  into  possession,  but  it  appeared  after- 
ward that  the  same  premises  had  been 
previously  let  by  parol  without  his  knowl- 
edge to  another  person,  who,  during  the 
absence  of  the  first  tenant,  took  possession, 
it  was  held  that  the  first  tenant  was  not 
guilty  of  arson  by  reason  of  his  burning  the 
house.    Sullivan  v.  State,  5  Stew.&  Port.  175. 

20.  By  settine  fire  to  adjoining  building. 
The  willful  and  malicious  setting  fire  to  a 
building,  the  burning  of  which  is  only  a 
misdemeanor,  will  become  a  felony  if  the 
dwelling-house  of  another,  or  barn  with 
grain  in  it,  be  thereby  burned,  when  such 
burning  is  the  piOl)al)le  conse(iuence  of  the 
first  illegal  act.  State  v.  Laughlin,  8  Jones, 
354. 

21.  A  barn  eighty  feet  from  a  dwelling, 
house,  in  a  yard  or  lane,  with  which  there 
is  a  communication  from  the  house  by  a  pair 
of  bars,  is  within  the  curtilage.  People  v. 
Taylor,  2  Mich.  250. 

22.  In  the  New  York  statute,  which  pro- 
vides that  "every  person  who  shall  willfully 
set  fire  to  or  burn,  in  the  night  time,  any 
building  not  being  the  subject  of  arson  in 
the  first  degree,  but  adjoining  to  or  within 
the  curtilage  of  any  inhabited  dwelling-house, 
so  that  such  house  shall  be  endangered  by  such 
firing,  shall,  upon  conviction,  be  adjudged 
guilty  of  arson  in  the  second  degree,"  the 
term  "adjoining,"  is  used  in  its  strictest 
sense,  as  indicating  actual  contact.  Pever- 
elly  V.  People,  3  Parker,  59. 

23.  Burning  jail.  In  New  York,  setting 
fire  to  a  jail  by  a  prisoner,  merely  for  the 
purpose  of  effecting  his  escape,  is  not  arson. 
People  V.  Cotteral,  18  Johns.  115.  And  in 
Texas,  it  has  been  hold  that  a  person  com- 
mitting such  an  offense,  cannot  be  convicted 
of  the  willful  burning  of  a  house,  under  the 
statute.  Delany  v.  State,  41  Texas,  601.  In 
Virginia,  where  a  county  jail  was  burnt, 
and  the  indictment  for  burning  the  same 
described  the  jail  as  the  house  of  B.,  sheriff 
and  jailer  of  the  county,  the  burning  of  sucli 
jail  was  held  to  be  a  felony,  under  the  stat- 
ute (Rev.  Code,  ch.  160,  §  4),  and  tiiat  tiic 
description    of    the  house    as   the   slicriff's 


Indictment. 

might  be  rejected  as  surplusage.     Stevens' 
Case,  4  Leigh,  683. 

24.  In  North  Carolina,  under  the  statute 
which  i^unishes  the  burning  of  a  jail  (R.  S. 
ch.  34),  it  was  held  that  the  burning  must 
be  both  willful  and  malicious,  though  the 
word  "or"  was  inserted  in  the  statute,  be- 
tween the  words  "  willfully  and  maliciously." 
State  V.  Mitchell,  5  Ired.  350.  If  a  prisoner 
set  fire  to  the  jail,  without  intending  to  de- 
stroy it,  he  is  not  guilt?y  under  the  statute. 
But  if  he  put  fire  to  the  jail,  with  an  in- 
tent to  burn  it  down  and  destroy  it,  he  is 
guilty,  notwithstanding  the  fire  goes' out  or 
is  put  out  by  others.     lb. 

25.  School-house.  Under  the  statutes  of 
Maryland  and  Connecticut,  it  was  held  to  be 
arson  to  burn  a  school  house.  Jones  v. 
Hunger  ford,  4  Gill  &  Johns.  402 ;  State  y. 
O'Brien,  2  Root,  516.  And  in  Kentucky, 
the  statute  makes  it  an  indictable  offense, 
although  at  common  law  such  an  act  would 
not  be  arson.  Wallace  v.  Young,  5  Monr. 
156. 

26.  Other  buildings.  The  prisoner  was 
indicted  under  a  statute  making  it  a  felony 
to  set  fire  to  or  burn  "  any  building  erected 
for  the  manufacture  of  cotton  or  woolen 
goods,  or  both."  The  frame  of  the  whole 
building  was  not  up  at  the  time  of  the  fire, 
and  that  part  which  had  been  raised,  was 
not  entirely  inclosed.  The  floors  were  not 
laid,  the  stairs  not  up,  and  no  part  of  it 
ready  for  use.  Held  that  it  was  not  a  build- 
ing within  the  purview  of  the  statute,  and 
that  the  defendant  must  be  discharged.  Mc- 
Gary  v.  People,  45  N.  Y.  153,  Grover, 
Peckham  and  Folger,  JJ  ,  dissenting:  rev'g 
3  Lans.  227. 

27.  A  saw-mill  is  not  necessarily  a  build- 
ing within  the  prohibition  of  a  statute  (H. 
S.  of  N.  H.  ch.  215),  punishing  the  burning 
of  any  building  other  than  such  as  are  speci- 
fied.  State  V.  Livermore,  44  New  Ilarap,  386. 

28.  To  burn  a  barn  containing  hay  and 
grain  is  arson  at  common  law.  Sampson  v. 
Com.  5  Watts  &  Serg.  385. 

■i.  Indictment. 

29.  The  burning.  Under  a  statute  defin- 
int!-  arson  to  be  "the  burnins:  or  causinjr  to 


26 


ARSON. 


Indictment. 


"be  burned,''  &c.,  tlie  indictment  need  not 
allege  that  the  defendant  "  set  fire  to"  the 
house.  People  v.  Myers,  20  Cal.  76  ;  over- 
ruling People  V.  Hood,  6  Cal.  236.  But 
in  Virginia,  an  indictment  for  arson,  under 
the  statute  (Rev.  Code,  ch.  160),  which  does 
not  contain  the  word  "bum,"  but  merely 
charges  "a  setting  fire  to,"  is  insuflScient. 
Howell  V.  Com.  5  Gratt.  664. 

30.  In  Maine,  in  an  indictment  founded 
upon  the  statute  (R*.  S.  cli.  119,  §  4),  punish- 
ing the  willful  and  malicious  turning  of  any 
building,  it  is  sufiicient  to  allege  the  "  set- 
ting Jire  to  "  a  building.  State  v.  Taylor,  45 
Maine,  322.  And  if  the  building  is  alleged  to 
have  burned  in  the  day  time,  it  is  not  neces- 
sary to  allege  whether  or  not  it  was  within 
the  curtilage  of  a  dwelling-house.     lb. 

31.  An  indictment  for  arson  which  alleged 
the  "setting  fire  to,  and  the  same  house 
then  and  there  by  the  spreading  of  such  fire, 
feloniously  burning,"  was  held  sufficient. 
Palston  V.  State,  14  Mo.  463. 

32.  An  indictment  for  an  attempt  to 
commit  arson  need  not  describe  the  com- 
bustibles alleged  to  have  been  used  by  the 
defendant.     Com.  v.  Flynn,  3  Cush.  529. 

33.  An  indictment  which  charges  the 
burning  of  "  a  certain  barn  and  an  out- 
house thereto  adjoining,"  need  not  sepa- 
rately charge  the  burning  of  each.  Com.  v. 
Lamb,  1  Gray,  493.  In  New  Hampshire,  an 
indictment  under  the  statute  (Gen.  Stat.  ch. 
262,  §  2),  which  alleges  that  the  defendant 
burned  a  building  called  a  bum,  need  not 
state  whether  or  not  a  dwelling-house  was 
also  burned.  State  v.  Emerson,  53  New 
Hamp.  619;  s.  c.  2  Green's  Grim.  Reps.  362. 

34.  Where  the  consequence  of  a  single 
act  is  the  destruction  by  fire  of  thirty-five 
dwelling-house.?,  the  prisoner  may  be  in- 
dicted as  for  one  offense  ;  and  if  the  destruc- 
tion of  every  house  constitutes  the  same  de- 
gree of  arson,  the  indictment  need  con- 
tain but  one  count.  Regarding  the  entire 
fire  as  one  transaction,  the  condition,  situa- 
tion and  occupancy  of  the  several  houses  are 
matters  of  detail,  and  evidence  may  be  given 
as  to  the  burning  of  all  of  them.  Woodford 
v.  People,  5  N.  Y.  Supm.  K  S.  539. 

35.  An  indictment  for  arson  charged  the 


prisoner  with  setting  fire  to  the  dwelling- 
house  of  P.,  and  the  dwelling-houses  of  sev- 
eral others,  naming  some  of  them  and  de- 
scribing others  as  "  divers  persons,  to  the 
jurors  unknown,"  and  then  used  this  lan- 
guage :  "  there  being  then  and  there,  within 
the  said  dwelling-houses,  some  human 
being."  Held  that  the  words  charged  the 
presence  of  a  human  being  in  each  of  the 
dwelling-houses.  Woodford  v.  People,  su- 
pra. In  Missouri,  an  indictment  under  the 
statute,  for  setting  fire  to  a  dwelling-house 
in  which  there  was  a  human  being,  need 
not  state  the  name  of  the  person  in  the 
house.     State  v.  Aguilar,  14  Mo.  130. 

36.  In  Massachusetts,  an  indictment  under 
the  statute  (R.  S.  ch.  133,  §  12),  which 
charges  in  one  count,  a  breaking  and  enter- 
ing the  building  in  the  night  time,  and  in 
another  count,  an  attempt  to  burn  the  build- 
ing after  breaking  and  entering  it,  is  not 
bad  for  duplicity.  Com.  v.  Harney,  10 
Mete.  422. 

37.  Time.  In  Virginia,  an  indictment 
charging  the  felonious,  willful  and  malicicais 
burning  of  a  dwelling-house,  contrary  to 
the  form  of  the  statute,  need  not  state 
whether  the  offense  was  committed  in  the 
day  time  or  at  night.  Curran's  Case,  7 
Gratt.  619. 

38.  Place.  An  indictment  for  burning  a 
barn  and  outhouse  "  at  A.,  in  the  county  of 
B.,"  is  sufficient  without  the  words  "  there 
situate.''     Com.  v.  Lamb,  1  Gray,  493. 

39.  Where  an  indictment  for  burning  a 
barn  charged  the  offense  as  having  been 
committed  at  S.,  in  the  county  of  B.,  it  was 
held  that  the  omission  of  an  allegation  that 
the  dwelling-house  within  the  curtilage  of 
which  the  barn  was,  was  also  in  S.,  did  not 
render  the  indictment  substantially  defect- 
ive.    Com.  V.  Barney,  10  Cush.  480. 

40.  Intent  in  general.  An  indictment 
for  arson  which  charges  that  the  act  was 
done  "  feloniously,  willfully  and  unlawfully," 
omitting  the  word  "  maliciously,"  is  insuffi- 
cient. Killenbeck  v.  State,  10  Md.  431. 
But  an  indictment  was  held  sufficient  which 
charged  that  the  act  was  done  feloniously, 
unlawfully  and  maliciously,  without  alleging 
that   it   was  done  willfully.      Chapman  v. 


ARSON. 


27 


Indictment. 


Com.  5  Whart.  427;  People  v.  Haynes,  55 
Barb.  450. 

41.  Where  the  indictment  is  for  setting 
fire  to  the  dwelling-house  of  another,  whereby 
it  was  burned,  the  intent  is  sufficiently  in- 
dicated. But  if  the  accused  did  not  set  fire 
to  the  house  itself,  but  caused  its  destruction 
by  kindling  another  fire,  the  intent  to  do 
more  must  be  set  out.  State  v.  Hill,  55 
Maine,  365 ;  State  v.  Watson,  63  lb.  128. 

42.  An  indictment  for  arson,  which  alleges 
that  the  defendant  set  fire  to  the  house  with 
intent  to  injure  the  owner,  instead  of  charg- 
ing that  the  intent  was  to  burn  the  house,  is 
bad.     Mary  v.  State,  24  Ark.  44. 

43.  To  prejudice  insurer.  An  indictment 
for  an  attempt  to  burn  insured  goods  with 
intent  to  prejudice  the  insurer,  need  not 
allege  the  particular  manner  in  which  the 
attempt  was  made.  Mackesey  v.  People,  6 
Parker,  114.  But  an  information  under  a 
statute  which  punishes  the  setting  fire  to  a 
building,  or  to  any  other  material  with  in- 
tent to  cause  such  building  to  be  burned,  or 
attempting  by  any  other  means  to  cause  a 
building  to  be  burned,  is  not  sufficient  which 
merely  alleges  that  the  defendant  solicited  a 
person  to  burn  the  building,  although  it  also 
alleges  that  the  defendant  furnished  such 
person  with  combustibles  for  the  purpose. 
McDade  v.  People,  29  Mich.  50,  Cooley,  J., 
dusenting. 

44.  An  indictment  for  burning  a  building 
insured  against  loss  by  fire,  with  intent  to 
defraud  an  insurance  company,  must  allege 
that  the  company  is  incorporated.  People 
T.  Schwarz,  32  Cal.  160.  But  in  New  York, 
an  indictment  for  setting  fire  to  a  shop  with 
intent  to  burn  the  prisoner's  goods  therein, 
which  were  insured  by  the  North  American 
Fire  Insurance  Company,  was  held  not  de- 
fective in  not  alleging  that  the  said  com- 
pany was  a  corporation,  or  had  the  right  to 
insure  the  goods  of  the  prisoner.  Mackesey 
V.  People,  6  Parker,  114. 

45.  In  New  York,  to  convict  of  arson  in 
the  third  degree  under  sec.  5  of  the  statute 
<2  Rev.  Stat.  607),  it  must  be  alleged  that 
the  house  was  insured  against  loss  or  dam- 
age by  fire,  and  that  the  offense  was  com- 
mitted with  intent  to  defraud  an  insurance 


company.     Peojile  v.  Henderson,  1  Parker, 
560.     And  see  Martin  v.  State,  29  Ala.  30. 

46.  In  New  York,  where  an  indictment 
for  arson  charged  that  the  prisoner  in  the 
night  time  feloniously  set  fire  to  his  own 
dwelling-house,  in  which  there  were  at  the 
time  divers  human  beings,  with  intent  to 
burn  the  said  dwelling-house,  and  with  in- 
tent thereby  to  defraud  a  certain  fire  insur- 
ance company,  it  was  held  on  demurrer  that 
the  indictment  was  not  sufficient  to  bring 
the  offense  within  arson  in  the  first  degree, 
because  it  was  not  the  dwelling-house  of 
another,  nor  the  third  degree  because  it  was 
not  charged  that  the  property  was  insured. 
People  V.  Henderson,  1  Parker,  560. 

47.  Property  burned.  An  indictment 
for  arson  at  common  law  need  not  state  that 
the  house  alleged  to  have  been  burned  was 
a  dwelling-house.  Com.  v.  Posey,  4  Call, 
109. 

48.  An  indictment  for  arson  alleging  that 
the  defendant  did  maliciously,  &c.,  set  fire 
to  and  burn  a  house  used  as  a  dwelling- 
house,  in  the  night  time,  the  property  of  M. 
H.,  sufficiently  shows  that  the  house  burned 
is  a  dwelling-house.  McLane  v.  State,  4 
Ga.  335. 

49.  In  Massachusetts,  under  the  statute 
(Rev.  Stat.  ch.  126,  §  5),  describing  the 
building  burned  as  not  then  completed, 
was  held  sufficient,  the  question  wiiether  it 
was  such  a  structure  as  to  constitute  it  a 
building  being  a  question  of  fact  for  the 
jury.     Cora.  v.  Squire,  1  Mete.  258. 

50.  In  New  York,  it  is  sufficient  in  an  in- 
dictment for  arson  in  the  first  degree  to 
describe  a  building  which  has  been  usually 
occupied  by  persons  lodging  therein  at 
night,  as  a  "dwelling-house,"  although  it 
may  not  be  a  dwelling-house  according  to 
the  ordinary  and  popular  acceptation  of  that 
term.     People  v.  Orcutt,  1  Parker,  252. 

51.  Where  the  second  floor  of  a  building 
was  occupied  by  the  prisoner  and  his  wife, 
and  the  residue  by  a  tenant  who  habitually 
lodged  therein,  it  was  held  proper  to  de- 
scribe it  in  an  indictment  for  arson  as  the 
dwelling- liouse  of  tiic  tenant.  Shepherd  v. 
People,  19  N.  Y.  537. 

52.  An  indictment  for  arson  which  charged 


28 


ARSON. 


Indictment. 


that  the  defendant  did  willfully  and  mali- 
ciously set  fire  to  and  burn  a  "  certain  build- 
ing called  a  saloon " — held  bad  in  not 
showing  f«r  what  purpose  the  building  was 
occupied.      State  v.  O'Connell,  26  Ind.  266. 

53.  In  Pennsylvania,  an  indictment  under 
the  statute  (act  of  March  21st,  1806),  which 
charged  that  the  defendant  set  fire  to '' a 
certain  barrack,"  was  held  insufficient  in 
omitting  to  allege  that  the  barrack  con- 
tained hay.  Chapman  v.  Com.  5  Whart. 
427.  An  indictment  which  alleges  that  the 
defendant  on  a  certain  day  set  fire  to  and 
burned  a  stack  of  hay,  and  also  a  building 
used  as  a  stable  and  granary,  is  bad  for 
duplicity.     State  v.  Fidment,  35  Iowa,  541. 

54.  An  indictment  charging  that  "  S.,  with 
force  and  arms  in  said  county,  unlawfully, 
wickedly,  maliciously  and  mischievously  did 
set  fire  to,  burn  and  consume  one  hundred 
barrels  of  tar,  of  the  goods  and  chattels," 
&c.,  was  held  good.  State  v.  Simpson,  2 
Hawks,  460. 

55.  Ownership.  An  indictment  for  arson 
at  common  law  must  correctly  allege  the 
ownership  of  the  i^roperty  burned.  McGary 
V.  People,  45  N.  Y.  153 ;  rev'g  3  Lans. 
227 ;  Martha  v.  State,  26  Ala.  72 ;  Martin  v. 
State,  28  lb.  71.  Where  the  indictment 
charged  the  burning  of  a  certain  dwelling- 
house  which  was  the  j^roperty  of  one  L.,  and 
the  dwelling-house  of  one  C,  it  was  held 
bad,  it  being  uncertain  whether  the  build- 
ing burned  was  the  property  of  L.  or  C. 
People  V.  Myers,  20  Cal.  76. 

56.  Where  an  indictment  for  arson  alleged 
that  the  building  burned  was  the  property 
of  "The  Phoenix  Mills  Company,"  and  it 
was  proved  on  the  trial  that  the  name  of  the 
company  was  "The  Phoenix  Mills,  of  Seneca 
Falls,"  it  was  held  that  the  variance  was 
fatal.  McGary  v.  People,  45  N.  Y.  153, 
Grover. Peckham  and  ¥o\gev,^ 3. ^dissenting; 
rev'g  2  Lans.  227. 

57.  Arson  being  an  offense  against  the 
security  of  the  dwelling-house,  and  not 
against  the  building  as  property,  the  proper 
mode  of  describing  the  suVvject  of  the  burn- 
ing in  an  indictment,  is  to  call  it  the  house 
of  the  person  who  dwells  in  it.  Where  the 
buildinsr  was  allesed  to  be  the  buildinsr  of 


the  owner,  and  it  was  proved,  that  at  the 
time  of  the  oftense,  it  was  in  the  possession 
of  a  tenant,  it  was  held  that  the  prisoner 
could  not  be  convicted.  People  v.  Gates,  15 
Wend.  159. 

58.  Where  part  of  a  building  is  let  for  a 
year,  which  part  has  no  communication  with 
other  parts  of  the  building,  the  part  so 
occupied,  may  be  laid  in  an  indictment  for 
arson,  as  the  property  of  the  lessee.  State 
V.  Sandy,  3  Ired.  570.  Where  the  house 
consists  of  two  distinct  tenements  owned 
and  occupied  severally,  in  one  of  which  the 
crime  was  committed,  it  is  a  misdescription 
to  call  it  the  dwelling-house  of  both  occu- 
pants; and  the  fact  that  there  is  an  interior 
communication  between  tenements  which 
are  owned  and  occupied  in  severalty,  with 
no  communication  in  actual  use  between 
them,  does  not  render  them  by  legal  intend- 
ment one  habitation.  State  v.  Toole,  39 
Conn.  342. 

59.  An  indictment  for  arson  may  allege 
the  ownership  of  the  building  destroyed  to 
be  in  the  widow  of  the  deceased  owner,  she 
having  occupied  the  same  since  her  hus- 
band's death,  notwithstanding  there  are 
heirs,  and  there  has  been  no  assignment  of 
dower.     State  v.  Gailor,  71  N.  C.  88. 

60.  An    indictment   for  burning  a   barn  f 
sufficiently  alleges  ownership  by  the  words 
"then   and   there  heJonging  toy      Com.  v. 
Hamilton,  15  Gray,  480. 

61.  An  indictment  for  arson  in  burning  a 
public  building  need  not  allege  that  it  be- 
longed to  any  one.  State  v.  Roe,  12  Vt. 
93. 

62.  When  on  a  trial  for  arson,  the  proof 
of  ownership  varies  from  the  allegation,  and 
a  nolle  pros,  is  thereupon  entered,  this  does 
not  prevent  a  subsequent  prosecution  under 
a  new  indictment,  in  which  the  ownership 
is  alleged  to  be  in  a  different  person;  and  if 
the  second  indictment  contains  several 
counts,  in  one  of  which  the  allegation  of 
ownership  is  the  same  as  in  the  first  indict- 
ment, and  the  defendant  pleads  to  the  whole 
indictment  autrefois  acquit  and  discontinu- 
ance, the  record  of  the  former  prosecution 
does  not  sustain  either  plea.  Martha  v. 
State,  26  Ala.  72. 


AKSON. 


29 


Indictment. 


Evidence. 


63.  An  indictment  for  arson,  each  count 
of  which  charges  the  offense  in  the  first  de- 
gree, but  alleges  a  different  house  and  differ- 
ent ownership,  is  not  bad  on  demurrer. 
Miller  v.  State,  45  Ala.  24. 

64.  Averment  of  value.  In  Indiana,  an 
indictment  for  arson  must  allege  the  value 
of  the  property  destroyed,  and  aver  the 
property  burned  to  belong  to  the  person  or 
persons  in  the  actual  possession,  in  his  or 
their  own  right.  Ritchey  v.  State,  7  Blackf 
168. 

65.  An  indictment  for  burning  a  barn,  un- 
der a  statute  which  makes  the  offense  punish- 
able without  reference  to  the  value  of  the 
building,  is  not  defective  by  reason  of  its 
not  alleging  value.  Com.  v.  Hamilton,  15 
Gray,  480. 

66.  Conclusion.  When  arson  is  forbidden 
by  more  than  one  statute,  the  conclusion 
contra  formam  statuti  in  the  indictment  is 
bad.  And  in  like  manner,  a  conclusion  con- 
tra formam  statutorvm  is  bad,  where  there  is 
but  one  statute.  State  v.  Sandy,  3  Ired. 
570. 

67.  In  Pennsylvania,  an  indictment  for 
burning  a  barn,  which  did  not  conclude 
"  against  the  form  of  the  statute  in  such  case 
made  and  provided,"  was   held  fatally  de- 

^  fective.     Chapman  v.  Com.  5  Whart.  427. 

4.  Evidence,      y 

68.  Property  burned.  When  an  indict- 
ment for  arson  alleges  that  the  building 
burned  was  called  a  barn,  it  may  be  proved 
that  it  was  thus  called  and  designated, 
although  it  was  used  for  a  j^upose  other  than 
that  indicated  by  its  name.  State  v.  Smith, 
28  Iowa,  565. 

69.  Whether  a  building  is  within  the  curti- 
lage of  a  dwelling-house,  is  a  question  to  be 
determined  by  the  jury  upon  the  evidence. 
Com.  V.  Barney,  10  Cush.  480. 

70.  Where  the  indictment  charged  the 
accused  with  setting  fire  to  a  dwelling-house, 
and  the  evidence  showed  that  he  did  not  set 
fire  to  the  house,  but  attempted  to  burn  uji 
some  personal  i)roperty  belonging  to  himself, 
with  intent  to  defraud  the  insurers,  it  was 
held  that  the  variance  was  fatal,  although 
the  offense  proved  was  embraced  in  one  of 


the    inferior    statutory    degrees   of    arson. 
Dedieu  v.  People,  22  N.  Y.  178. 

71.  An  indictment  for  burning  stacks  of 
wheat  is  not  sustained  by  evidence  of  burn- 
ing shocks  of  wheat.  Denbow  v.  State,  18 
Ohio,  11. 

72.  Ownership.  On  the  trial  of  an  in- 
dictment for  burning  a  dwelling-house  in 
the  night,  the  ownership  of  the  house  is 
material,  and  must  be  proved  as  laid. 
Carter  v.  State,  20  Wis.  647 ;  Com.  v.  Wade, 
17  Pick.  395. 

73.  On  a  trial  for  maliciously  setting  fire 
to  a  building,  proof  that  it  was  in  the  actual 
occupation  and  possession  of  the  persons 
named,  is  evidence  of  ownership.  State  v. 
Taylor,  45  Maine,  323. 

74.  On  the  trial  of  an  indictment  for 
arson,  proof  that  the  defendant  was  in  pos- 
session of  the  building  burned,  paying  rent 
to  the  alleged  owner,  is  sufficient  evidence 
of  ownership.  People  v.  Simpson,  50  Cal. 
304.  But  such  an  indictment  is  not  sus- 
tained by  proof  that  the  defendant  was  in 
possession  of  the  property  under  a  contract 
of  purchase.     State  v.  Fish,  3  Dutch.  323. 

75.  Burning.  On  a  trial  for  the  malicious 
burning  of  an  outhouse,  a  piece  of  the  side  of 
the  building  charged  to  have  been  burned, 
was  offered  in  evidence  as  exhibiting  the 
whole  of  the  part  burned.  Held  a  question 
of  fact  for  the  jury  to  determine  whether  the 
building  was  actually  burned.  Com.  v. 
Betton,  5  Cush.  427. 

76.  An  indictment  for  arson  in  burning  a 
gin-house  is  sustained  by  proof  that  it  was 
burned  by  the  ignition  of  matches,  which 
the  defendant  put  amidst  the  unginned  cot- 
ton in  the  gin-house,  with  the  intention  of 
causing  it  to  take  fire  in  the  necessary  or 
probable  handling  of  the  cotton.  Over- 
street  V.  State,  40  Ala.  30. 

77.  Guilty  motive.  On  a  trial  for  arson, 
proof  that  the  property  burned  was  insured 
is  admissible  to  show  motive  on  the  part  of 
the  prisoner.  Didicu  v.  People,  4  Parker, 
593;  Freund  v.  People,  5  lb.  198;  also,  that 
the  prisoner  lived  unhappily  with  his  wife, 
who  was  burned  with  the  building.  Shep- 
herd V.  People,  19  N.  Y.  537. 

78.  On   the   trial    of    an   indictment   for 


30 


ARSON. 


Evidence. 


burning  a  dwelling-house,  -which  the  de- 
fendant occupied  with  his  family,  and  also 
used  as  a  provision  store,  it  appearing  that 
tliere  was  an  insurance  on  his  furniture  and 
stock  of  provisions,  it  was  held  competent 
for  the  purpose  of  showing  motive  to  prove 
that  the  property  was  insured  for  much 
more  than  it  was  worth.  Com.  v.  Hudson, 
97  Mass.  565. 

79.  Where,  on  the  trial  of  an  indictment 
for  setting  fire  to  the  defendant's  barn, 
whereby  it  and  his  adjoining  dwelling- 
house  were  consumed,  it  was  proved  that 
the  defendant  held  a  policy  of  insurance  on 
the  buildings,  which  he  surrendered  before 
the  trial  to  the  agent  of  the  company,  who 
was  out  of  the  jurisdiction  of  the  court,  it 
was  held  that  parol  evidence  of  the  contents 
of  the  policy  was  admissible  on  the  question 
of  motive.     State  v.  Watson,  63  Maine,  128 

80.  Where,  on  a  trial  for  arson,  it  ap- 
peared that  there  was  a  very  large  insurance 
upon  the  goods  of  the  defendant  which  were 
destroyed  by  fire,  it  was  held  that  the  place 
and  amount  of  such  insurance  might  be 
proved  by  parol.     State  v.  Cohn,  9  Nev.  179. 

81.  Where  an  indictment  for  arson  al- 
leges that  the  burning  was  "with  intent  to 
charge  or  injure  an  insurance  company,"  the 
jury  must  be  satisfied  from  the  evidence  that 
the  defendant  had  knowledge  of  the  in- 
surance.    Martin  v.  State,  28  Ala.  71. 

82.  On  tbe  trial  of  an  indictment  for 
burning  a  building  with  intent  to  defraud 
an  insurance  company,  the  existence  of  the 
company  as  a  corporation  need  not  be  proved 
by  its  charter ;  nor  need  a  compliance  on  its 
part  with  the  laws  of  the  State  be  proved. 
It  is  sufficient  to  show  a  corporation  de 
facto^  and  that  the  agents  by  whom  the  con- 
tract of  insurance  was  made  were  the 
agents  de  facto  of  the  corporation.  People 
V.  Hughes,  29  Cal.  257.  Neither  is  it  neces- 
sary to  prove  that  the  policy  was  valid ;  and 
a  variance  between  the  name  of  the  in- 
surance company  in  the  indictment,  and 
that  proved,  will  not  be  a  ground  for  arrest 
of  judgment.     lb. 

83.  On  the  trial  of  an  indictment  for 
burning  a  barn,  it  was  held  that  threats  of 
revenge  made  by  the  defendant  on  account 


of  an  arrest  and  imprisonment  caused  by 
the  owner  of  the  barn,  and  uttered  from  one 
to  two  years  previously,  were  admissible  in 
evidence.     Com.  v.  Goodwin,   14  Gray,  55. 

84.  Where,  on  the  trial  of  an  indictment 
for  burning  a  barn,  there  is  proof  of  the  hos- 
tility of  the  defendant  toward  the  occupant 
of  the  property  destroyed,  it  is  not  a  case  re- 
quiring the  judge  to  instruct  the  jury 
whether  or  not  uncorroborated  confessions 
will  warrant  a  conviction.  Com.  v.  Mc- 
Cann,  97  Allen,  580. 

85.  On  a  trial  for  setting  fire  to  a  jail,  the 
indictment  under  which  the  defendant  was 
confined  in  the  jail  at  the  time  he  set' fire  to 
it  is  competent  evidence  to  show  the  cause 
of  his  detention,  and  his  intent.  Luke  v. 
State,  49  Ala.  30. 

86.  Presumptions.  It  is  competent  to 
prove  that  the  defendant,  some  five  or  six 
months  before  the  burning  charged  in  the 
indictment,  requested  another  person  to  bum 
the  house.     Martin  v.  State,  28  Ala.  71. 

87.  A  hay  bam  was  burned  in  the  same 
village  in  which  arson  was  committed, 
about  three  hours  previous  thereto,  and  it 
was  proved  that  the  prisoner  was  seen  in 
the  vicinity  of  the  barn  before  and  after  it 
took  fire.  Held^  that  the  evidence  was 
proper  to  show  the  whereabouts  and  con- 
duct of  the  prisoner  shortly  before  the  oc- 
currence with  which  he  was  charged,  as 
bearing  upon  the  question  of  opportunity 
and  guilty  intent.  Woodford  v.  PeojDle,  5 
N.  Y.  Supm.  N.  S.  539. 

88.  On  the  trial  of  an  indictment  for  ar- 
son, it  is  competent  to  prove  that  goods 
stolen  from  the  burnt  house  were  found  in 
the  possession  of  the  prisoner.  Johnson  v. 
State,  48  Ga.  116. 

89.  On  a  trial  for  arson  it  is  not  erroneous 
to  charge  the  jury  that  the  fact  that  two  of 
the  witnesses  acted  upon  their  belief  and 
knowledge  that  the  person  they  saw  was  the 
accused,  and  caused  him  to  be  arrested 
within  an  hour  after  the  fire  was  set,  tended 
to  corroborate  their  testimony  as  to  identi- 
fying him,  notwithstanding  they  swore  less 
positively  as  to  his  identity  before  the  com- 
mitting magistrate.  State  v.  Denniu,  32 
Vt.  158. 


ARSON. 


31 


Evidence. 

90.  On  the  trial  of  an  indictment  for 
burning  a  barn  and  slaughterhouse,  after 
proof  that  the  fire  was  set  by  means  of  a 
box  containing  a  lighted  candle,  that  the 
box  was  prepared  for  incendiary  purposes, 
and  that  it  was  made  at  the  defendant's 
shop,  an  anonymous  letter  in  the  defendant's 
handwriting,  dated  five  days  before  the  fire, 
was  put  in  evidence,  stating  that  the  writer 
and  another  person  had  been  engaged  in 
setting  fire  to  buildings  by  means  of  boxes, 
and  that  they  expected  to  receive  more  of 
such  boxes,  and  to  use  them  for  setting 
other  fires.  It  was  then  proved  that  another 
box  was  found  a  few  weeks  before  the  fire, 
similar  to  the  first  mentioned  box,  and  that 
it  was  made  at  the  defendant's  shop.  The 
jury  were  instructed  that  if  they  should  be 
satisfied  that  the  defendant  made  the  latter 
box  the  evidence  was  not  to  be  used  to  show 
that  he  also  made  the  box  with  which  the 
fire  was  set,  but  only  to  show  that  he 
possessed  the  requisite  skill,  materials, 
tools,  and  opportunity  to  have  made  it, 
unless  they  should  find  that  one  hand 
must  have  made  both.  Held^  no  ground 
of  exception.  Com.  v.  Choate,  105  Mass. 
451. 

91.  On  the  trial  of  an  indictment  for  will- 
fully setting  fire  to,  and  burning  a  barn,  it 
appeared  that  the  owner  of  the  barn  kept  a 
watch-dog,  which  usually  slept  in  the  kitch- 
en of  the  house;  that  the  dog  was  there 
when  the  barn  was  burnt,  and  did  not  bark 
until  strangers  began  to  collect  around  the 
building,  after  the  alarm  of  fire  had  been 
given.  Eeld^  that  it  was  not  competent  to 
prove  that  the  dog  generally  barked  when 
strangers  passed  the  house,  and  was  quiet 
when  inmates  of  the  house  passed,  in  order 
to  show  that  the  person  who  committed  the 
offense  was  an  inmate  of  the  house,  or  to 
corroborate  the  declaration  of  the  defendants 
that  they  intended  to  set  fire  to  the  barn, 
and  must  do  it  soon  after  leaving  the  house, 
before  the  dog  forgot  them.  Com.  v.  Mar- 
shall, 15  Gray,  202. 

92.  On  the  trial  of  an  indictment  for  ar- 
son, it  was  held  competent  for  the  prosecu 
tion  to  prove  another  and  different  firing  of 
the  premises,  three  or  four  weeks  previous  to 


Verdict. 

the  firing  charged  in  the  indictment,  under 
circumstances  tending  to  cast  suspicion  on 
the  defendants.  State  v.  Rohfrischt,  12  La. 
An.  382. 

93.  "Where,  on  a  trial  for  arson,  the  prose- 
cution has  proved  the  burning  of  the  house, 
as  charged,  and  offered  evidence  tending  to 
show  that  the  defendant  was  the  person  who 
set  fire  to  it,  evidence  that  another  house 
was  subsequently  burned,  owned  by  the 
prosecutor,  is  irrelevant;  nor  is  it  made  rele- 
vant by  being  offered  in  connection  with 
proof  of  defendant's  declaration  made  after 
the  first,  but  before  the  second  burning, 
that  he  was  not  yet  done  with  the  prose- 
cutor, especially  if  this  declaration  is  proved 
to  have  been  made  in  a  conversation,  when 
''  no  reference  was  made  to  either  of  the 
burnings,  the  parties  speaking  of  a  civil  case 
which  defendant  brought  before  the  prose- 
cutor as  a  justice  of  the  peace,  the  defendant 
complaining  that  the  prosecutor  had  treated 
him  rascally."  Brock  v.  State,  26  Ala. 
104. 

94.  On  the  trial  of  an  indictment  for 
burning  a  house  which  is  insured,  with  in- 
tent to  injure  or  defraud  the  insurer,  after 
evidence  tending  to  establish  a  conspiracy 
to  commit  the  offense  between  the  defendant 
and  another,  the  acts  or  declarations  of  such 
other  person  showing  an  effort  to  procure 
payment  from  the  insurer  of  the  amount  of 
the  loss  insured  against  are  admissible. 
People  V.  Trim,  39  Cal.  75. 

95.  Where  two  persons  are  separately  in- 
dicted for  arson,  the  production  of  the  rec- 
ord of  conviction  of  one  of  them  is  not  evi- 
dence against  the  other.  Kazer  v.  State,  5 
Ham.  280. 

5.  Ve;i{dict. 

96.  Degree  of  guilt.  In  New  York,  under 
an  indictment  for  a  higher  degree  of  arson, 
the  defendant  may  be  found  guilty  of  a 
lower  degree;  and  although  charged  with 
setting  fire  to  a  building,  he  may  be  tried 
for  setting  fire  to  the  goods  and  furniture  in 
the  building.  Didieu  v.  People,  4  Parker, 
593;  Freund  v.  People,  5  lb.  198. 


32 


ASSAULT   AND   BATTERY. 


Simple. 


What  Constitutes. 


Assault  ani  Sattmi. 

1.  Simple. 

(a)    What  constitutes. 

(5)  Justifiable  use  of  force. 

(c)  Indictment. 

(d)  Sow  tried. 

(e)  Evidence  for  prosecution. 
(/)  Eoidence  for  defense, 
(g)   Verdict  and  judgment. 

2.  Assault  with   intent  to  kill. 

{a)   What  constitutes. 
(5)  Indictment. 

(c)  Evidence. 

[d)  Verdict. 

1.  Simple. 
(a)    What  constitutes. 

1.  Meaning  of  assault.  An  assault  is  an 
attempt  or  offer  to  commit  personal  violence : 
as  the  striking  at  one  with  or  without  a 
weapon,  or  presenting  a  gun  at  him  within  a 
distance  which  the  gun  will  carry,  or  point- 
ing a  pitchfork  at  him,  standing  within  the 
reach  of  it,  or  by  holding  up  one's  i3st  at  him 
in  a  threatening  manner.  State  v.  Morgan, 
3  Ired.  186 ;  U.  S.  v.  Hand,  2  Wash.  C.  C. 
435.  An  assault  may  be  committed  on  one 
or  more  persons  at  the  same  time,  and  by 
the  same  act.  State  v.  Bradley,  34  Texas, 
95. 

2.  Must  be  violence.  In  order  to  con- 
stitute an  assault,  there  must  be  something 
more  than  mere  menace.  There  must  be  vio- 
lence begun  to  be  executed.  But  where 
there  is  a  clear  intent  to  commit  violence, 
accompanied  l)y  acts  which, if  not  interrupt- 
ed, will  be  followed  by  personal  injury,  tlie 
assault  is  complete.  People  v.  Yslas,  27  Cal. 
630.  A  mere  purpose  to  commit  violence, 
however  plainly  declared,  if  not  accompanied 
by  an  effort  to  carry  it  into  immediate  exe- 
cution, does  not  constitute  an  assault.  Smith 
V.  State,  39  Miss.  521.  Handy,  J.,  dissent- 
ing, held  that  if  a  party  make  an  advance 
upon  another,  armed  with  a  dangerous  weap- 
on, likely  to  produce  great  bodily  injury, 
and  in  a  hostile  attitude,  to  all  appearances 
indicating  an  intention  to  do  the  other  great 
bodily  harm,  it  is  an  assault,  though  the  party 


did  not  intend  to  do  the  other  any  bodily 
injury.  The  mere  fact  of  a  person  going  to 
a  place  with  the  design  to  commit  an  assault 
upou  another,  will  not  make  him  liable,  un- 
less he  carry  his  intention  into  effect.  Yoes 
V.  State,  4  Eng.  42.  So,  the  drawing  of 
a  pistol  without  presenting  or  cockiug  it, 
is  not  an  assault.  Lawson  v.  State,  30  Ala. 
14. 

3.  If  a  person  ride  his  horse  so  near  to 
another  as  to  endanger  his  person,  and  create 
a  belief  in  his  mind  that  it  is  his  intention 
to  ride  upon  him,  it  is  an  assault.  State  v. 
Sims,  3  Strobh.  137. 

4.  An  offer  to  strike  by  rushing  upon  an- 
other, will  be  an  assault,  alrhough  the  assail- 
ant be  not  near  enough  to  reach  his  adver- 
sary, if  the  distance  be  such  as  to  induce  a 
man  of  ordinary  firmness  to  suppose  that  he 
will  instantly  receive  a  blow.  State  v.  Davis, 
1  Ired.  125;  State  v.  Benedict,  11  Vt.  236. 
A.  approached  B.  in  a  threatening  manner, 
with  a  stick  in  his  hand,  which  he  raised  in 
the  attitude  to  strike  when  he  was  stopped 
by  a  third  person  before  he  was  near  enough 
to  B.  to  reach  him  witli  the  stick.  Held  an 
assault.  State  v.  Vannoy,  65  N.  C.  532.  On 
the  trial  of  a  complaint  for  an  assault,  the 
following  instruction  was  held  correct:  That 
"  if  the  defendant,  within  shooting  distance, 
menacingly  jjointed  at  H.  a  gun  which  H. 
had  reasonable  cause  to  believe  was  loaded, 
and  H.  was  actually  put  in  fear  of  immediate 
bodily  injury  therefrom,  and  the  circum- 
stances were  such  as  ordinarily  to  induce 
such  fear  in  the  mind  of  a  reasonable  man, 
an  assault  was  committed,  whether  the  gun 
was  in  fact  loaded  or  not.  Com.  v.  White, 
110  Mass.  407;  s.  c.  2  Green's  Crim.  Reps. 
269. 

5.  There  may  be  an  assault  without  per- 
sonal injury.  State  v.  Myers,  19  Iowa,  517. 
But  a  criminal  conviction  for  an  assault  can- 
not be  upheld  where  no  battery  has  been 
committed,  and  none  attempted,  intended, 
or  threatened  by  the  party  accused.  People 
V.  Bransby,  32  N.  Y.  525.  In  Massachusetts, 
where  the  defendant  snatched  two  bank  bills 
from  another's  hand,  touching  the  hand  as' 
he  did  so,  but  without  any  force,  and  run- 
ning away,  it  was  held  that  it  did  not  con- 


ASSAULT   AND   BATTERY 


33 


Simple. 


What  Constitutes. 


stitute  an  assault  with  force  and  violence 
■within  the  statute  (R.  S.  eh.  125,  §  16). 
Com.  V.  Ordway,  12  Cush.  270. 

6.  To  constitute  an  assault  with  a  gun,  it 
is  not  necessary  that  the  person  holding  it 
should  raise  it  to  his  shoulder.  State  v.  Ep- 
person, 27  Mo.  255.  Upon  the  occurrence  of 
an  altercation  between  A.  and  B.,  A.  got  up 
from  his  seat  and  took  his  gun  down  from 
its  rack,  whereupon  a  bystander  immediately, 
before  he  turned  around  with  it,  seized  hold 
of  him  and  prevented  his  using  it.  Held, 
that  if  A.  took  the  gun  from  the  rack  with 
the  intention  of  making  an  immediate  bat- 
tery with  it,  he  was  guilty  of  an  assault. 
Higginbotham  v.  State,  23  Texas,  574.  But 
to  constitute  an  assault  with  a  pistol,  the 
pistol  must  be  presented  within  a  dangerous 
distance.     Tarver  v.  State,  43  Ala.  354. 

7.  Any  forcible  taking  of  property  from 
the  possession  of  another,  by  means  which 
overcome  resistance,  however  slight,  con- 
stitutes an  assault.  State  v.  Gorham,  55 
New  Hamp.  152;  but  not  the  striking  of  the 
horses  of  the  prosecutor  in  a  rude  and  angry 
manner  while  he  is  driving  his  team  in  a 
field,  in  the  act  of  gathering  corn.  Kirk- 
land  V.  State,  43  Ind.  146  ;  s.  c.  2  Green's 
Grim.  Reps.  706. 

8.  Sprinkling  paint  from  the  second  story 
window  of  a  house  upon  a  person  in  the 
street  below,  is  an  assault  and  battery.  Peo- 
ple V.  McMurray,  1  Wheeler's  Cr.  Gas.  62. 

9.  Addressing  another  with  threatening 
language,  and  then  placing  the  open  hand 
on  his  breast  and  pushing  him  back,  consti- 
tutes assault  and  battery.  State  v.  Baker, 
65  N.  G.  332. 

10.  Where  a  person  who  was  about  to  be 
arrested  by  an  officer  for  a  breach  of  the 
peace,  drew  back  a  knife  within  striking 
distance,  and  ordered  the  officer  to  stand, 
which  he  did,  it  was  held  that  the  person 
was  guilty  of  an  assault.  Stockton  v.  State, 
25  Texas,  772. 

11.  If  a  person  unlawfully  detain  another, 
he  is  liable  to  an  indictment  for  assault  and 
battery.  Long  v.  Rogers,  17  Ala.  540;  and 
if  the  opposition  is  such  as  a  prudent  man 
would  not  risk,  it  is  false  imprisonment. 
Smith  V.  State,  7  Humph.  43. 

3 


12.  Threats.  Threats  aggravate  an  as- 
sault ;  and  it  matters  not  that  the  threats 
were  conditional,  if  the  conditions  were  such 
as  the  party  had  no  right  to  impose.  Crow 
V.  State,  41  Texas,  468.  A  person  drew  a 
pistol,  cocked  it,  pointed  it  toward  another's 
breast,  the  parties  being  close  together,  and 
said,  "If  you  do  not  pay  me  my  money,  I 
will  have  your  life."  Held  an  assault.  Keefe 
V.  State,  19  Ark.  190.  An  instruction  that 
"  if  the  prosecutor  gave  up  his  gun  to  the 
prisoner  through  fear  of  bodily  harm  reason- 
ably excited  in  his  mind  by  the  conduct  or 
manner  of  the  prisoner,  then  the  prisoner 
might  be  guilty  of  an  assault,"  is  not  erro- 
neous.    Balkum  v.  State,  40  Ala.  671. 

13.  When  a  person  presents  a  pistol  at  an- 
other, threatening  to  shoot,  and  putting  him 
in  fear,  it  is  an  assault;  and  it  is  doubtful 
whether  the  act  can  be  excused  by  proving 
that  the  pistol  was  not  loaded,  without  also 
proving  that  the  other  person  knew  that 
fact.  In  such  case,  the  burden  of  proof  is 
with  the  defendant,  to  show  that  the  pistol 
was  not  loaded,  and  that  the  party  assaulted 
knew  that  it  was  not.  State  v.  Cherry,  11 
Ired.  975;  State  v.  Smith,  2  Humph.  457; 
State  V.  Shepard,  10  Iowa,  126;  Crow  v. 
State,  41  Texas,  468.  But  see  Agitone  v. 
State,  lb.  501. 

14.  Defendant  having  lost  his  pocket-book, 
took  a  pistol,  and  holding  it  in  his  hand, 
told  his  clerk  that  he  believed  he  had  the 
money,  that  if  he  knew  he  had  it  he  would 
kill  him,  at  the  same  time  pointing  his  fin- 
ger at  his  head  to  show  where  he  would 
shoot  him.  Being  told  by  a  third  person  to 
put  up  the  pi>tol,  he  did  so,  and  then  put 
his  hands  on  the  clerk's  pocket  to  see  if  the 
pocket-book  was  there.  Held  an  assault 
and  battery.  Johnson  v.  State,  17  Texas, 
515. 

15.  Where  several  armed  men  pursue  an- 
other with  threats  and  insults,  and  induce 
him  to  go  home  sooner  than,  or  by  a  difier- 
ent  route  than  the  one  he  intended,  they  are 
guilty  of  an  assault  upon  him,  altiiough  a 
gun  was  not  pointed  at  him,  and  they  did 
not  approach  nearer  him  than  seventy-five 
yards.     State  v.  Rawles,  65  N.  C.  334. 

16.  Where  the  defendant  placed  himself 


34 


ASSAULT   AND   BATTERY, 


Simple. 


What  Constitutes. 


immediately  in  front  of  the  prosecutor,  as- 
sumed an  attitude  to  strike  within  striking 
distance,  and  in  an  angry  manner  exclaimed, 
"  I  have  a  good  mind  to  strike  you,"  it  was 
held  an  assault.  State  v.  Hampton,  63  N.C.  13. 
And  where  the  defendant  drew  a  pistol,  ad- 
vanced within  ten  steps  of  the  prosecutor,who 
was  retiring,  threatened  to  shoot  him  if  he 
did  not  leave,  and  drove  him  from  the  place, 
which  was  where  he  had  a  right  to  be,  it 
was  held  an  assault,  although  the  pistol  was 
neither  cocked  nor  presented.  State  v. 
Church,  63  N.  C.  15. 

17.  If  one  offers  to  strike  with  a  deadly 
weapon,  although  he  announces  his  purpose 
not  to  do  so  if  his  terms  are  instantly  com- 
plied with,  and  although  his  terms  be  such 
as  he  has  a  right  to  exact,  he  is  guilty  of  an 
assault,  for  the  reason  that  he  ought  first  to 
resort  to  milder  measures,  and  not  put  in 
use  a  deadly  weapon  at  the  outset.  Where, 
therefore,  under  an  indictment  charging  an 
assault  to  have  been  committed  on  S.,  it 
WPS  proved  that  the  defendant  stood  in  the 
door  of  his  grocery  with  a  pistol  in  his 
hand  presented,  sometimes  bearing  upon  S. 
and  sometimes  not,  and  swearing  that  if  S. 
came  in  he  would  shoot  him,  it  was  held 
that  the  defendant  was  properly  convicted. 
State  V.  Myerfield,  Phil.  N.  C.  108. 

18.  A  conviction  cannot  be  had  for  an 
attempt  to  discharge  a  i^istol  when  the  in- 
dividual indicted  has  proceeded  no  further 
toward  an  actual  discharge  than  to  raise  and 
point  the  pistol  uncocked  at  another,  at  the 
same  time  threatening  to  discharge  it  if  the 
other  puts  his  hand  on  him  or  advances 
toward  him.  Mulligan  v.  People,  5  Parker, 
105. 

19.  Where  the  defendants,  with  their  com- 
rades, in  all  six  in  number,  with  loud  oaths, 
dealt  heavy  blows  with  dangerous  weap- 
ons, inflicting  terrible  wounds,  the  provoca- 
tion being  that  their  entrance  was  resisted 
into  a  lawful  and  peaceable  gathering,  which, 
by  a  formal  vote  previously  made  known  to 
them,  had  excluded  all  who  had  not  re- 
ceived tickets  of  admission,  it  was  held 
that  they  were  rightly  convicted  of  an  un- 
lawful assembly  and  riotous  assault.  State 
Y.  Yeaton,  53  Maine,  125. 


20.  Ability  to  injure.  Whatever  may 
have  been  the  intention  of  a  person,  as  man- 
ifested by  threatening  gestures  and  words, 
if  he  had  not  the  ability  to  commit  a  battery, 
he  cannot  be  convicted  of  an  assault.  Smith 
V.  State,  33  Texas.  593. 

21.  Absence  of  intention.  If  when  a 
person  raises  his  whip  to  strike  another  he 
says :  ''  Were  you  not  an  old  man  I  would 
knock  you  down,"  and  has  no  present 
intention  to  strike,  it  is  not  an  assault.  State 
V.  Crow,  1  Ired.  875 ;  Com.  v.  Eyre,  1  Serg. 
&  Rawle,  347. 

22.  The  pointing  of  a  pistol  at  another 
playfully,  or  accompanied  with  a  declara- 
tion that  he  did  not  intend  to  shoot,  or 
other  words  showing  the  absence  of  a  crim- 
inal intent,  would  not  be  an  assault,  unless 
the  other  had  good  reason  to  apprehend 
danger.     Richels  v.  State,  1  Sneed,  606. 

23.  A.  went  up  to  B.  with  a  cocked  pistol 
in  his  hand,  but  which  he  did  not  raise  or 
point,  and  addressing  B.,  said  :  "I  am  now 
ready  for  you."  B.  thereupon  seized  him  by 
the  collar  and  pushed  him  back  several  feet, 
when  A.  struck  him  with  his  pistol,  extri- 
cated himself  from  his  grasp,  and  went  into 
a  neighboring  store.  Held,  that  A.  was  not 
guilty  of  an  assault.  Warren  v.  State,  33 
Texas,  517. 

24.  Where  person  presents  a  gun  within 
shooting  distance  of  another,  who  is  armed 
with  a  knife,  and  about  to  attack  him,  it  is 
not  an  assault,  if  there  be  no  attempt  to  use 
the  gun,  or  intention  to  use  it  until  first  at- 
tacked.    State  V.  Blackwell,  9  Ala.  79. 

25.  On  the  trial  of  an  indictment  for  as- 
sault and  battery  and  false  imprisonment, 
proof  that  the  defendants  were  employed  to 
arrest  and  forcibly  imprison  a  child,  they 
being  wholly  ignorant  of  an  intent  on  the 
part  of  their  employer  to  cause  the  child  to 
be  sent  out  of  the  State,  will  not,  in  law, 
charge  them  with  such  intent.  Com.  v. 
Kickerson,  5  Alien,  518. 

26.  By  infant.  Although  at  common  law 
a  boy  under  the  age  of  fourteen  is  not  liable 
to  indictment  for  an  ordinary  assault  and 
battery,  yet  it  is  otherwise  when  the  battery 
is   aggi'avated,  or    when  from    numbers  it 


ASSAULT   AND   BATTERY. 


35 


Simple, 


What  Constitutes. 


amounts  to  riot,  or  when  it  is  prompted  by 
lust.     State  V.  Pugh,  7  Jones,  G1. 

27.  By  mutual  consent.  Two  persons 
may  commit  an  assault  and  battery  each 
upon  the  other  at  the  same  time,  as  when 
they  mutually  fight  by  agreement.  Each 
would  be  guilty  of  a  distinct  and  several 
ofiense,  but  the  oiFenders  may  be  joined  in  the 
same  indictment  if  severally  charged.  State 
V.  Lonon,  19  Ark.  577. 

28.  There  need  not  be  mutual  blows  to 
constitute  a  mutual  combat.  There  must  be 
a  mutual  intent  to  fight,  but  if  this  exists, 
and  but  one  blow  be  struck,  the  mutual 
combat  exists,  even  though  the  first  blow 
kills  or  disables  one  of  the  parties.  Tate  v. 
State,  46  Ga.  148. 

29.  Where  an  indictment  which  charged 
that  the  defendant  and  one  T.  "  did  commit 
an  affray  by  fighting  together  by  mutual  and 
common  consent  in  public  view"  was  in- 
dorsed "a  true  bill"  as  to  the  defendant 
alone,  it  was  held  that  he  might  be  convicted 
of  assault  and  battery.  State  v.  Wilson, 
Phil.  N.  C.  237. 

30.  On  the  trial  of  an  indictment  for  as- 
sault and  battery,  the  jury  were  instructed 
that  if  the  defendant  took  the  prosecutrix 
into  a  room  and  locked  himself  in  with  her, 
with  intent  to  have  connection  with  her,  she 
being  ignorant  of  his  intent,  he  was  guilty 
of  an  assault,  although  she  afterward  as- 
sented to  his  wishes,  and  to  his  having  con- 
nection with  her.  Held,  error.  People  v. 
Bransby,  33  N.  Y.  525. 

31.  Inciting.  One  who  incites  or  pro- 
cures another  to  commit  an  assault  and  bat- 
tery, without  directly  participating  in  it 
himself,  is  guilty  as  a  principal.  State  v. 
Lymburn,  1  Brev.  397;  Baker  v.  State,  12 
Ohio,  N.  S.  214. 

32.  The  following  instruction  was  held 
correct:  That  if  in  a  tumultuous  crowd  the 
defendant  saw  a  person  by  him  known  to  be 
an  officer  in  the  discharge  of  his  duty,  as- 
saulted, and  used  words,  acts,  or  gestures 
which  tended  to  incite  and  encourage  the 
person  then  assaulting  the  officer  to  assault 
him,  he  might  be  convicted  of  an  assault, 
notwithstanding  he  did  not  in  person  touch 


or  injure  the    officer.     Com.  v.  Hurley,  99 
Mass.  433. 

33.  Where  several  persons,  without  proces3 
of  law,  enter  a  man's  premises  in  order  to 
search  for  stolen  property,  and  one  of  them 
commits  an  assault  and  battery  on  the  owner, 
the  others  are  not  liable,  unless  the  assault 
was  committed  during  the  prosecution  of 
their  original  unlawful  purjDose,  or  within 
such  a  time  afterward  as  to  satisfy  the  jury 
that  it  was  connected  therewith.  Thomp- 
son V.  State,  25  Ala.  41. 

34.  By  direction  of  another.  The  forci- 
ble taking  away  a  child  nine  years  of  age, 
against  the  will  of  his  father,  or  of  those  to 
whom  his  father  had  committed  him  for 
nurture  or  education,  will  constitute  an  as- 
sault and  battery  and  imprisonment  of  the 
child,  whatever  may  have  been  the  apparent 
wishes  or  satisfaction  of  the  child  in  being 
thus  taken,  and  althougli  the  defendants 
acted  by  direction  of  the  mother  of  the  child. 
Com.  V.  Nickerson,  5  Allen,  518, 

35.  Where  two  persons  cultivated  land  on 
shares,  and  the  agent  of  one  of  them  went 
on  to  the  land  to  remove  his  principal's 
share  of  the  crops,  which  he  attempted  to 
do  from  a  cart  in  which  the  other  had  de- 
posited crops  gathered  by  him,  and  a  servant 
of  the  latter  forcibly  removed  the  agent 
from  the  land,  by  his  master's  orders,  it  was 
held  that  the  servant  was  guilty  of  an  assault 
and  battery.     Com.  v.  Rigney,  4  Allen,  316. 

36.  By  husband  on  wife.  A  husband 
cannot  lawfully  inflict  corporal  chastisement 
on  the  wife,  or  offer  any  violence  to  her,  ex- 
cept to  prevent  her  improper  interference 
with  the  exercise  of  his  parental  authority. 
Gorman  v.  State,  42  Texas,  231 ;  or  to  defend 
himself  against  her,  and  restrain  her  from 
acts  of  violence  toward  himself  or  other.". 
People  V.  Winters,  2  Parker,  10. 

37.  In  North  Carolina  a  man  could  not 
formerly  be  convicted  of  assault  and  battery 
for  moderately  whipping  his  wife,  although 
done  without  provocation.  State  v.  llhodes, 
Phil.  N.  C.  453.  But  in  that  State  the  old 
doctrine,  tliat  a  husband  has  a  right  to  wliip 
his  wife,  provided  he  uses  a  switch  no  larger 
than  his  thumb,  is  not  now  law.  State  v. 
Oliver,  70  N.  C.  GO.   Where  a  husband,  seiz- 


36 


ASSAULT   AND   BATTERY 


Simple. 


What  Constitutes. 


ing  his  wife  by  her  left  arm,  said  he  would 
kill  her,  and  then,  brandishing  a  knife  over 
her,  drew  back  as  if  to  strike,  when  his  arm 
was  caught  by  a  bystander,  it  was  held  that 
the  husband  was  guilty  of  an  assault.  State 
Y.  Mabrey,  64  N.  C.  592 ;  approving  State 
V.  Rhodes,  stipra. 

38.  By  parent.  On  the  trial  of  an  indict- 
ment for  assault  and  battery,  it  appeared 
that  the  defendant  lived  with  the  mother  of 
the  boy ;  that  although  they  were  not  mar- 
ried, they  lived  together  as  man  and  wife; 
that  the  mother  committed  the  care  of  the 
boy  to  the  defendant,  and  that  for  some  mis- 
conduct the  defendant  whipped  the  boy. 
Held,  that  as  the  defendant  acted  in  loco 
parentis^  and  the  injury  to  the  boy  was  not 
lasting,  the  defendant  was  justified.  State 
v.  Alford,  68  N.  C.  322. 

39.  By  teacher.  As  a  general  rule,  teach- 
ers, in  chastising  their  pupils,  exceed  the 
limits  of  their  authority  when  they  cause 
lasting  mischief,  but  act  within  the  limits  of 
it  when  they  inflict  temporary  pain.  State 
v.  Pendergrass,  2  Dev.  &  Batt.  365.  Courts 
and  juries  should  hold  a  strong  and  stern 
hand  over  teachers  who  abuse  their  author- 
ity by  the  infliction  of  excessive  corporal 
punishment.  Gardner  v.  State,  4  Ind.  632. 
Whether,  under  the  circumstances,  the  pun- 
ishment of  a  pupil  by  a  teacher  is  excessive, 
must  be  left  to  the  jury.  Com.  v.  Randall, 
4  Gray,  36. 

40.  Where  the  relation  of  schoolmaster 
and  scholar,  parent  and  child,  master  and 
apprentice,  or  any  similar  relation  is  estab- 
lished, in  defense  of  a  prosecution  for  assault 
and  battery,  the  legal  presumption  is  that  the 
chastisement  was  proper ;  and  the  burden  of 
proof  is  on  the  prosecution  to  show  that  it 
was  excessive  or  without  proper  cause.  An- 
derson V.  State,  3  Head,  455. 

41.  Where  the  teacher  of  a  private  school 
requests  one  of  the  pupils  to  leave  for  insub- 
ordination and  misconduct,  which  he  refuses 
to  do,  the  teacher  may  lawfully  avail  him- 
self of  the  assistance  of  a  third  person  to 
remove  the  pupil,  and  a  schoolmate  of  the 
latter  oftering  resistance  inhisbehalf,  will  be 
guilty  of  assault  and  battery.  State  v.  Wil- 
liams, 27  Vt.  755. 


42.  By  master.  A  master  cannot  law- 
fully punish  his  apprentice  for  obedience  ta. 
a  subpoena  or  any  other  legal  process.  Where 
an  apprentice  had  testified  as  a  witness  on  a 
trial,  it  was  held  that  whether  he  had  been 
subpoenaed  or  attended  voluntarily,  his  mas- 
ter could  not  lawfully  chastise  him  for  it. 
People  V.  Suiffin,  1  Wheeler's  Cr.  Cas.  512. 

43.  The  authority  of  a  master  over  his 
apprentice  is  strictly  personal,  and  he  has 
no  right  to  direct  or  permit  a  person  in 
his  employ  to  chastise  the  apprentice.  Peo- 
ple V.  Phillips,  1  Wheeler's  Cr.  Cas.  155. 

44.  The  keeper  of  an  almshouse,  for  the 
purpose  of  maintaining  order,  may  lawfully 
restrain  its  inmates  by  a  reasonable  amount 
of  preventive  force;  but  he  has  no  right 
to  confine  and  chain  a  pauper  79  years  of 
age,  although  directed  to  do  so  by  the  select- 
men of  the  town.  State  v.  Hull,  34  Conn. 
132. 

45.  By  oflBcer.  An  officer  will  not  be  ex- 
cused, who  without  intending  to  commit  an 
assault  and  battery  uses  in  making  an  arrest 
more  force  than  is  necessary.  Golden  v.. 
State,  1  Rich.  N.  S.  292. 

46.  An  agricultural  society  has  no  right 
to  exclude  public  travel  from  any  portion  of 
the  highway,  although  there  is  sufficient 
room  for  public  travel  on  the  highway  outside 
of  the  limits  included  in  their  lines.  There- 
fore on  the  trial  of  a  complaint  against  the 
officers  of  such  a  society  for  assault  and  bat- 
tery, it  was  held  that  the  jury  were  properly- 
instructed  that  the  defendants  were  not  jus- 
tified in  arresting  the  complainant  with- 
out legal  process,  because  he  refused  when 
directed  to  fall  back  within  lines  fixed  by 
the  society  within  the  highway,  or  because 
when  thus  directed,  he  struck  the  horse  of 
one  of  the  marshals,  without  any  malicious 
intent  to  injure  the  horse  or  its  rider.  Com. 
V.  Ruggles,  6  Allen,  588. 

47.  In  resisting  officer.  If  an  officer  take 
property  under  an  attachment  in  which  the 
defendant  has  no  attachable  interest,  he  can- 
not be  lawfully  resisted  by  the  owner;  and 
if  tlie  owner  do  so,  he  will  be  liable  to  an 
indictment  for  assault  and  battery.  State 
V.  Buchanan,  17  Vt.  573.  But  in  Alabama, 
where  an  ofliccr  attempts  to  seize  under  exe- 


J 


ASSAULT   AND   BATTERY. 


37 


Simple. 


What  Constitutes. 


Justifiable  use  of  Force. 


■cution  articles  exempt  by  law  from  levy  and 
sale,  after  being  warned  of  the  fact,  the 
owner  may  employ  as  much  force  as  is 
necessary  to  prevent  the  levy.  State  v.  John- 
son, 12  Ala.  840.  The  subsequent  failure  of 
the  officer  to  make  a  complaint  before  a 
magistrate  against  his  prisoner  for  the  oifense 
for  which  he  had  arrested  him,  is  not  a  de- 
fense to  an  indictment  for  an  assault  upon 
the  officer.     Com.  v.  Tobin,  108  Mass.  42G. 

48.  By  conductor.  Where  the  conductor 
of  a  railroad  train,  soon  after  it  left  the  depot, 
demanded  from  a  passenger  his  ticket,  with- 
out offering  him  a  check,  and  upon  his  re- 
fusal to  surrender  his  ticket,  forcibly  ejected 
him  from  the  car,  it  was  held  on  the  trial  of 
an  indictment  for  assault  and  battery  against 
the  conductor  therefor,  that  the  latter  was 
liable,  on  the  ground  that  the  passenger  was 
not  bound  to  give  up  his  ticket  until  a  check 
was  first  tendered  him.  State  v.  Thompson, 
20  New  Hamp.  250. 

(h)  Justijiulle  use  of  fo-rce. 

49.  In  ejecting  passenger  from  car.  A 
passenger  who  does  not  purchase  his  ticket 
before  entering  the  cars  may  be  required  to 
pay  a  higher  rate  of  fare,  and  on  his  refusal, 
may  be  expelled  from  them  by  force  with  no 
unnecessary  violence.  State  v.  Chovin,  7 
Iowa,  204,  Stockton,  J.,  dissentirig. 

50.  A  railroad  company  has  a  right  to  fix 
rates  of  fare  by  a  tariff  posted  at  their 
stations,  and  to  allow  a  discount  on  such 
rates  to  persons  who  buy  their  tickets  before 
they  enter  the  cars ;  and  one  entering  the 
cars  without  buying  his  ticket  cannot  claim 
the  discount,  though  he  had  no  knowledge 
of  the  regulation,  and  if  he  refuses  to  pay 
the  full  fare,  he  may  be  put  off  of  the  train 
at  a  regular  station.  State  v.  Goold,  .53 
Maine,  279. 

51.  Where  the  conductor  of  a  train  called 
upon  a  passenger  for  his  fare,  told  him  what 
it  was,  and  referred  to  the  regulation  of  the 
company  fixing  it  at  the  amount  demanded, 
and  the  passenger  replied  that  he  should 
only  pay  a  less  sum,  naming  it,  and  that  the 
conductor  would  have  to  put  him  off,  as  he 
should  only  pay  the  sum  which  he  had 
offered,  it  was  held  the  duty  of   the  con- 


ductor to  put  the  passenger  off  of  the  cars 
immediately,  with  as  much  expedition  as 
was  consistent  with  the  delinquent's  safety 
and  the  safety  and  convenience  of  other 
passengers,  and  that  after  the  train  was 
stopped  for  that  purpose,  the  conductor  was 
not  bound  to  receive  the  fare  when  tendered, 
and  permit  the  passenger  to  remain  on  the 
train.    People  v.  Jillson,  3  Parker,  234. 

52.  If  the  regulation  for  the  collection  of 
railway  tickets  is  a  reasonable  one,  and  es- 
sential to  the  interests  of  the  company,  a 
passenger  who  refuses  to  comply  with  it 
may  be  required  to  leave  the  car,  and  if  he 
refuses  to  go,  bs  ejected  without  unnec- 
essary violence.  People  v.  Caryl,  3  Parker, 
326. 

53.  A  passenger  on  the  cars  had  an  excur- 
sion ticket  "good  for  one  passage  on  the 
day  sold  only,"  and  also  a  regular  ticket; 
and  upon  being  called  on  by  the  conductor 
to  show  his  ticket,  he  produced  the  one  for 
the  excursion  which  had  expired,  and  kept 
the  other  out  of  view.  Upon  refusing  to 
pay  his  fare,  he  was  forcibly  ejected.  Held 
that  he  had  no  right  afterward  to  enter  the 
cars  upon  producing  his  regular  ticket. 
State  V.  Campbell,  3  Vroom  (32  N.  J.)  309. 

54.  A  person  purchasing  a  railroad  ticket 
acquires  the  riglit  to  be  carried  directly  to 
his  place  of  destination ;  but  not  to  be  trans- 
ported from  one  point  to  another  upon  the 
route  at  different  times,  and  by  different 
lines  of  conveyance.  If,  therefore,  without 
the  j^ermission  of  the  company,  he  gets  out 
at  a  way  station,  and  upon  taking  another 
train  refuses  to  pay  the  fare,  the  conductor 
may  remove  him  from  the  cars,  using  no 
more  force  than  is  necessary.  The  reason- 
ableness of  the  regulation  is  a  question  of 
law  for  the  court.  State  v.  Overton,  4  Zabr. 
435. 

55.  Where  a  party  takes  passage  on  a  rail- 
road train,  the  company  is  not  bound  to 
furnish  him  ingress  and  egress  to  and  from 
the  cars  at  any  intermediate  station ;  and  if 
he  leaves  the  cars  at  any  intermediate  point, 
he  does  so  at  his  own  risk.  When  a  train 
stops  on  a  side  track,  awaiting  the  passage 
of  another  train  out  of  time,  a  passenger 
may  rightfully  leave  tiie  car  if  no  objection 


38 


ASSAULT   AND   BATTERY. 


Simple. 


Justifiable  use  of  Force. 


be  made  or  notice  given ;  but  he  for  the 
time  surrenders  his  place  as  a  passenger,  and 
takes  upon  himself  the  direction  and  re- 
sponsibility of  his  own  motions  during  his 
absence.  If  he  has  left  the  car  without 
objection,  and  is  on  the  platfonn  or  near 
the  track  when  the  train  is  about  to  start, 
the  company  should  give  him  reasonable 
notice  to  return;  and  if  there  be  an  estab- 
lished signal  by  blowing  the  whistle,  that 
should  be  sounded.  But  they  are  not  bound 
to  go  after  him  if  out  of  sight  and  out  of  the 
reach  of  the  voice.  State  v.  Grand  Trunk 
R.  R.  58  Maine,  17G. 

56.  A  conductor  may  eject  a  passenger 
from  the  car,  not  only  for  such  misconduct 
as  disturbs  the  peace  and  safety  of  the  otiier 
passengers,  but  also  for  grossly  profane  or 
indecent  language.  People  v.  Caryl,  3 
Parker,  326. 

57.  Defense  of  property.  A  man  may 
order  another  out  of  his  house,  and  if  he 
refuse  to  go,  use  sufficient  force  to  put  him 
out.  But  no  violence  will  be  justifiable. 
State  V.  Lazarus,  1  Rep.  Con.  Ct.  34. 

58.  The  idea  that  is  embodied  in  the  ex- 
pression that  a  man's  house  is  his  castle,  is 
not  that  he  has  a  right  to  defend  it  by  more 
extreme  means  than  he  might  lawfully  use 
to  protect  his  shop,  ofHce,  or  barn.  An  as- 
sault on  the  house,  can  be  regarded  as  an 
assault  on  the  person,  only  in  case  the  pur- 
pose of  such  assault  be  injury  to  the  person 
of  the  occupant  or  his  family.  In  such  case, 
the  inmate  need  not  iiee  from  the  house  in 
order  to  escape  injury,  but  may  meet  his 
assailant  at  the  threshold,  and  prevent  him 
from  breaking  in  by  any  means  rendered 
necessary  by  the  exigency.  State  v.  Patter- 
son, 45  Vt.  308. 

59.  Where  an  assault  is  made  on  a  house 
with  the  intent  of  doing  the  inmate  great 
bodily  harm,  he  may  use  a  deadly  weapon  if 
it  be  necessary,  or  the  inuiate  has  reason  to 
believe,  and  does  believe  it  necessary  to  pre- 
vent the  perpetration  of  such  crime.     lb. 

60.  Where  a  tenant  at  sufferance  placed 
windows  in  the  dwelling-house  occupied  by 
him,  and  after  the  expiration  of  the  tenancy, 
and  after  the  house  so  occupied  was  sold  to 
anotlier,  who  had  taken  possession  by  his 


tenant,  went  back  to  remove  the  windows 
from  the  house,  and  was  proceeding  to  do 
so,  when  the  occupant  forcibly  siezed  and 
took  away  the  windows,  causing  some  in- 
jury to  the  former  tenant.  Held  not  assault 
and  battery.  State  v.  Elliott,  11  New  Hamp. 
540. 

61.  On  the  trial  of  a  complaint  for  assault 
and  battery,  it  appeared  that  the  defendant 
had  charge  of  a  church  as  sexton,  and  that 
it  was  his  duty  to  conduct  funerals  there; 
that  although  the  complainant  had  no  right 
to  insist  upon  conducting  a  funeral,  yet  that 
he  did  so,  and  that  upon  being  requested  to 
desist  and  leave  the  church,  he  refused. 
Held  that  the  defendant  upon  his  refusal, 
had  a  right  to  remove  him,  and  that  if  he 
used  no  more  force  than  was  necessary,  he 
was  justified.  Com.  v.  Dougherty,  107  Mass. 
343. 

62.  A  person  has  no  right  to  use  force  to 
protect  his  possession,  or  to  prevent  an 
injury  to  his  property,  unless  it  is  really 
necessary.  A  fear,  or  mere  suspicion  that 
another  may  encroach  upon  his  possession 
will  not  justify  an  assault.  McAuley  v. 
State,  3  Greene,  435.  A  person  took  hold 
of  the  horse  of  another,  and  turned  the 
horse's  head,  whereupon  he  was  told  by  the 
owner  to  let  go,  wliich  he  did  and  then 
struck  the  horse  on  the  liead  with  his  hand, 
causing  the  horse  to  step  back.  The  owner 
of  the  horse  then  beat  the  other  and 
knocked  him  down  with  the  butt  of  his 
whip.  Held  that  the  battery  was  unjustifi- 
able.    Com.  V.  Ford,  5  Gray,  475. 

63.  A  tenant  in  common  of  a  barn  floor 
occupied  by  his  cotenant  and  himself,  has 
no  right  to  use  force  and  violence  to  prevent 
his  cotenant  from  entering  the  door,  though 
it  be  for  the  declared  purpose  of  removing 
the  former's  wagon.  Com.  v.  Lakeman,  4 
Cusii.  597. 

64.  Defense  of  person.  The  rules  which 
justify  self-defense,  have  been  held  to  extend 
only  to  the  relations  of  parent  and  child, 
husband  and  wife,  and  master  and  servant. 
It  would  seem  however  that  the  relations  of 
brother  and  brother,  or  brother  and  sister, 
or  sister  and  sister,  in  this  respect  may  be 
said  to  stand  ujion  the  same  footing  of  rea- 


ASSAULT   AND   BATTERY. 


39 


Simple. 


Justifiable  use  of  Force. 


Indictment. 


son  and  justice.     Armisteacl  v.  State,  18  Ga. 
704,  per  Starnes,  J. 

65.  On  the  trial  of  an  indictment  for 
assault  and  battery,  the  defendant  will  not 
be  held  excused,  unless  it  ajjpear,  that  he 
acted  clearly  ia  self-defense.  The  fact  that 
a  party  has  been  struck,  gives  him  no  right 
to  retaliate  by  an  assault,  when  it  is  in  his 
power  to  keep  aloof  from  the  party  striking. 
State  V.  Gibson,  10  Ired.  314. 

66.  If  a  gun  be  pointed  at  one  in  a  threat- 
ening manner,  under  such  circumstances  as 
to  induce  a  reasonable  belief  that  it  is  loaded, 
and  will  be  discharged  and  thereby  produce 
death  or  inflict  a  great  bodily  injury  on  the 
person  threatened,  he  will  be  justified  in 
using  whatever  force  may  be  necessary  to 
avert  the  apparent  danger,  though  it  may 
afterward  appear  that  the  gun  was  not 
loaded,  and  that  he  was  in  no  danger  what- 
ever.    People  V.  Anderson,  44  Cal.  65. 

67.  When  a  man  goes  to  another  to  assail 
him  or  demand  explanations,  or  in  anger, 
and  the  person  addressed  puts  his  hand  in 
his  pocket,  the  bare  fear  that  he  has  a  con- 
cealed weapon  which  he  is  about  to  draw 
and  use,  will  not  justify  the  commission  of 
acts  of  violence  on  his  person.  Mitchell  v. 
State,  41  Ga.  527.  See  Braswell  v.  State,  42 
lb.  609. 

68.  Every  assault  will  not  justify  a  battery ; 
and  whether  the  degree  of  force  used  by  the 
defendant  was  justified  by  the  occasion,  is 
to  be  determined  on  the  evidence.  The 
party  assaulted  may  strike,  or  use  a  sufii- 
cient  degree  of  force  to  prevent  the  intended 
blow,  without  retreating.  He  must  however 
take  care  that  he  use  no  more  violence  than 
may  be  necessary  to  prevent  the  violence  of 
the  assailant.  Gallagher  v.  State,  3  Minn. 
270 ;  State  v.  Quin,  3  Brev.  515 ;  s.  c.  2  Const. 
Rep.  09 1. 

69.  Abusive  language.  Abusive  words 
will  not  excuse  an  assault.  Stale  v.  Wood, 
1  Bay,  351.  But  on  the  trial  of  an  indictment 
for  assault  and  battery,  the  following  charge 
was  held  proper:  That  if  the  jury  believed 
the  prosecutor  used  insulting  and  abusive 
language  to  the  defendant,  it  might  or  might 
not  amount  to  a  justification,  depending  on 
the  extent  of  the  battery ;  and  if  they  be- 


lieved from  the  evidence,  that  the  defendant 
used  the  first  insulting  and  opprobrious 
words,  they  might  take  that  into  consider- 
tion  in  determining  whether  the  defendant 
was  justified  in  making  the  alleged  assault. 
Arnold  v.  State,  46  Ga.  455. 

(c)  Indictment. 

70.  Finding.  Where  an  indictment  charges 
an  assault  and  battery,  the  grand  jury  have 
no  right  to  find  a  true  bill  for  the  assault 
alone,  but  must  find  for  the  entire  charge, 
State  V.  Wilburn,  2  Brev.  296. 

71.  Venue.  An  indictment  which  alleges 
that  the  defendant  did  with  force  and  arms 
make  an  assault  in  and  upon  W.,  laborer,  on 

the   ...  day  of ,  and  then  and  there  did, 

with  force  and  arms,  beat,  wound,  &c.,  does 
not  lay  the  venue  sufiicieutly,  even  though 
the  name  of  the  county  be  in  the  margin. 
Kennedy  v.  Com.  3  Bibb,  490. 

72.  Time.  Where  an  indictment  for  an 
assault  and  battery  omitted  to  state  a  certain 
day  and  year,  it  was  held  ground  for  arrest 
of  judgment.  State  v.  Beckwith,  1  Stew. 
318.  And  an  information  for  an  assault, 
which  did  not  allege  the  day  on  which  the 
oftense  was  committed  was  held  fatally  de- 
fective.    State  V.  Eubanks,  41  Texas,  291. 

73.  Person  injured.  In  an  indictment  for 
assault  and  battery,  the  name  of  the  per- 
son alleged  to  have  been  assaulted,  is  used 
only  for  the  purpose  of  identification ;  and 
when  such  person  is  known  equally  well  by 
two  names,  the  use  of  either  of  them  is  sufli- 
cient.  State  v.  Bundy,  64  Maine,  507. 
Where  the  indictment  omitted  to  name  the 
person  assaulted,  but  alleged  that  the  de- 
fendant did  then  and  there  the  said  J.L.  beat, 
wound,  «&c.,  it  was  held  sufficient.  Heme 
v.  State,  39  Md.  552;  s.  c.  2  Green's  Crim. 
Reps.  394. 

74.  An  indictment  which  alleges  that  an 
assault  and  battery  was  made  on  the  body 
of  the  "deceased,"  is  good;  the  word  "de- 
ceased "  meaning  in  this  connection,  that  the 
person  injured  was  dead  when  the  indict- 
ment was  found.  Com.  v.  Ford,  5  Gray, 
475. 

75.  An  indictment  against  a  woman  for 
assaulting  a  female  child,  and  willfully  and 


40 


ASSAULT   AND   BATTERY. 


Simple. 


Indictment. 


maliciously  leaving  her  exposed  in  the  street 
of  a  city  in  the  night,  without  proper  cloth- 
ing, shelter  or  protection,  without  alleging 
that  the  child  was  of  tender  years,  or  unable 
to  take  care  of  herself,  or  that  she  was  the 
defendant's  child,  ward,  servant,  or  appren- 
tice, or  in  her  care  or  keeping,  or  that  the 
child  was  injured,  is  insufficient,  but  may  be 
supported  as  an  indictment  for  an  assault. 
Com.  V.  Stoddard,  9  Allen,  280. 

76.  An  indictment  alleged  that  the  de- 
fendant committed  an  assault  and  battery 
upon  a  female  "with  clenched  fists  and  open 
hands,"  but  did  not  allege  that  the  oflFense 
was  committed  by  an  adult  male,  or  show  its 
character.  Held  that  there  could  not  be  a 
conviction  of  an  aggravated  assault.  Black- 
bum  V.  State,  39  Texas,  153.  But  an  indict- 
ment which  alleges  that  the  defendant  made 
an  assault  upon  a  constable  while  in  the  dis- 
charge of  his  official  duties,  charges  an 
aggravated  assault.  State  v.  Coffey,  41  lb. 
46.  Where  however,  an  indictment  alleged 
that  the  defendant  "  went  into  the  residence 
of  A.  and  did  then  and  there  assault,  strike, 
and  beat,"  it  was  held  that  it  did  not  charge 
an  aggravated  assault  for  the  reason,  that 
there  was  no  averment  that  A.  had  a  family. 
State  V.  Cass,  41  Texas,  552. 

77.  One  who  assaults  two  persons  at  the 
same  time,  may  be  charged  in  a  single  count 
with  the  assault  upon  both,  and  be  convict- 
ed upon  proof  of  an  assault  upon  either. 
Com.  V.  O'Brien,  107  Mass,  208.  And.  an  in- 
dictment is  good,  which  charges  two  persons 
with  committing  an  assault  and  battery  upon 
three  others.  Fowler  v.  State,  3  Heisk. 
154;  8.  c.  1  Green's  Crim.  Reps-.  295.  But 
an  indictment  against  several,  which  charges 
that  they  with  a  knive,  which  they  then  and 
there  with  their  right  hand  held,  made  an 
assault,  &c.,  is  bad.  State  v.  Gray,  21  Mo. 
492. 

78.  For  resisting  officer.  In  an  indict- 
ment for  resisting  an  officer  in  the  service  of 
an  execution,  the  place  of  service,  as  well  as 
the  time  the  execution  was  delivered  to  the 
officer,  must  be  stated.  State  v.  Hooker,  17 
Vt.  658. 

79.  In  Vermont  an  indictment  under  the 
statute,  for  impeding  an  officer  in   the   exe- 


cution of  his  official  duty,  must  show  the 
nature  of  the  official  duty,  the  manner  of  its 
execution,  and  the  mode  of  resistance.  State 
V.  Burt,  25  Vt.  373.  But  not  when  the  in- 
dictment is  laid  for  an  assault  of  an  officer 
in  the  execution  of  his  office,  as  at  common 
law,  or  under  the  general  statute,  upon  the 
matter  of  a  breach  of  the  peace.     lb. 

80.  Where  an  indictment  for  an  assault 
upon  a  constable,  charged  that  the  officer 
was  in  the  due  execution  of  the  duties  of  the 
office  of  constable,  and  that  the  defendant, 
while  the  said  officer  was  in  the  due  and 
lawful  execution  of  liis  said  office,  unlaw- 
fully, knowingly,  and  designedly  did  hinder 
and  oppose  him;  it  was  held  that  it  suffi- 
ciently charged  that  the  defendant,  knew 
that  the  officer  assaulted  was  a  constable. 
Com.  V.  Kirby,  2  Cush.  577. 

81.  Charging  offense.  Where  the  indict- 
ment charged  that  the  defendant  "mali- 
ciously, wickedly  and  unlawfully  did  bite  or 
cut  off  the  ear  of  C,"  it  was  held  that  the 
disjunctive  "  or  "  would  have  been  a  fatal  ob- 
jection but  for  the  assault  and  battery,  which 
was  the  ofl'ense;  the  mode  in  which  the  in- 
jury was  inflicted  being  only  a  circumstance 
in  aggravation.  Scott  v.  Com.  6  Serg.  & 
Rawle,  224. 

82.  An  indictment  charged  that  the  de- 
fendant committed  an  assault  and  battery 
upon  the  person  of  S.,  a  deputy  sheriff,  while 
in  the  lawful  execution  of  the  duties  of  his 
office,  and  unlawfully,  knowingly  and  de- 
signedly obstructed,  hindered  and  opposed 
him,  contrary  to  the  form  of  the  statute,  &c. 
Held  not  bad  for  duplicity  ;  the  averments 
as  to  the  official  position  of  S.  and  as  to  the 
effect  of  the  assault  in  hindering  him  being 
matters  in  aggravation.  State  v.  Dearborn, 
54  Maine,  442. 

83.  In  Massachusetts,  an  indictment  under 
the  statute  (of  1849,  ch.  49,  §  1),  is  sufficient 
which  charges  that  the  accused  *'  by  and  in 
pursuance  of  a  previous  appointment  and 
arrangement  made  to  meet  and  engage  in  a 
fight  with  another  person,  to  wit.  with  one 
C,  did  meet  and  engage  in  a  fight  with  the 
said  C,  against  the  peace,"  &c.  Com.  v. 
Welsh,  7  Gray,  324.  In  the  same  State,  un- 
der section  2  of  the  same  statute,  an   indict- 


ASSAULT   AND   BATTERY. 


41 


Simple. 


Indictment. 


mentis  sufficient  which  charges  that  " M., 
at  S.,  on,"  &c,,  "  was  present  as  an  aid  and 
second,  and  did  advise,  encourage,  and  pro- 
nnote  a  fight,  in  which  one  W.  did  then  and 
there,  by  previous  appointment  and  arrange- 
ment, go  to  meet  and  engage  with  one  C, 
against  the  peace,"  &c.     Ih. 

84.  An  indictment  charges  but  one  oflFense 
which  alleges  that  the  defendants  assaulted 
a  certain  person  and  attempted  thereb\%  by 
intimidation,  to  prevent  his  voting.  State 
V.  Hardy,  47  New  Hamp.  538. 

85.  An  indictment  is  good  which  charges 
assault  and  battery  and  false  imprisonment 
in  a  single  count.  Francisco  v.  State,  4  Zabr. 
30.  In  Massachusetts,  although  in  an  in- 
dictment under  the  statute  (Gen.  Stats,  ch. 
160,  §  27),  it  is  not  necessary  to  allege  a 
battery,  yet  if  alleged,  there  is  no  dui)licity. 
Com.  V.  Thompson,  116  Mass.  346. 

86.  Immaterial  averments.  An  indict- 
ment for  an  assault  need  not  state  the 
particular  acts  of  the  defendant.  Bloomer 
V.  State,  3  Sneed,  66.  As  every  intentional 
maiming  and  disfiguring  of  a  person  neces- 
sarily includes  an  assault  and  battery,  an  in- 
dictment which  charges  such  disfiguring, 
with  proper  specifications  as  to  the  manner, 
time,  venue,  person  injured,  and  other 
formal  parts  of  the  indictment  is  sufficient, 
without  alleging  that  the  defendant  as- 
saulted the  person.  Benham  v.  State,  1 
Iowa,  542.  An  indictment  for  an  assault  in 
presenting  a  gun  at  another  within  the  dis- 
tance the  gun  would  carry,  need  not  allege 
that  the  gun  was  pointed  at  the  party  as- 
saulted.    State  V.  Smith,  2  Humph.  457. 

87.  Where  an  indictment  alleged  that  A., 
in  and  upon  one  B.  did  make  an  assault,  and 
he,  the  said  B.,  then  and  there  did  beat, 
wound  and  ill-treat,  it  was  held  good,  and 
that  the  words  he  the  said  B.  then  and  there 
might  be  rejected  as  surplusage.  Com.  v. 
Hunt,  4  Pick.  252. 

88.  The  fact  that  it  is  not  alleged  in  an  in- 
dictment for  as.saulting  an  officer  while  in 
the  discharge  of  his  duty,  that  the  defend- 
ant knew  the  party  assaulted  was  an  officer 
at  the  time  the  assault  was  committed,  is 
not  good  cause  for  arrest  of  judgment,  but 
may  be  ground  for  entering  judgment  for  a 


simple   assault.      Com.   v.   Kerby,   2  Cush. ' 
577. 

89.  An  indictment  for  an  assault  upon  an 
officer,  who  at  the  time  of  the  assault  had 
an  execution  against  the  body  of  the  de- 
fendant, which  he  was  about  to  execute, 
need  not  contain  an  allegation  that  the  sum 
due  on  the  execution  had  been  demanded  of 
the  defendant,  or  that  he  refused  to  pay  it. 
State  V.  Hooker,  17  Vt.  658. 

90.  An  indictment  for  an  assault  and 
battery  need  not  allege  that  the  person  as- 
saulted was  late  of  the  county,  nor  that  the 
beating  and  wounding  were  to  the  prosecut- 
or's damage.  State  v.  Wimple,  8  Black f. 
214. 

91.  An  indictment  for  assault  and  battery 
need  not  contain  the  word  "unlawfully." 
State  V.  Bray,  1  Mo.  180.  Where  the  indict- 
ment charged  that  A,  feloniously  and  of  his 
malice  aforethought,  assaulted  B.  with  a 
sword,  and  then  and  there  struck  him,  the 
allegation  of  feloniously,  and  of  liis  malice 
aforethought,  apply  also  to  the  stroke. 
State  V.  Owen,  1  Murphy,  452. 

92.  An  indictment  for  assault  and  battery 
need  not  charge  that  the  person  beaten  was 
in  the  peace  of  the  State ;  and  the  words 
force  and  arms  are  not  necessary.  State  v. 
Elliott,  7  Blackf.  280. 

93.  In  an  indictment  for  assault  and  bat- 
tery, the  words  "  and  other  wrongs  to  the 
said  L.  then  and  there  did  and  committed," 
may  be  rejected  as  surplusage.  Com.  v. 
Randall,  4  Gray,  30. 

94.  Averment  of  intent.  It  is  not  suffi- 
cient in  an  indictment  (or  assault  and  bat- 
tery to  allege  that  the  defendant  used  un- 
lawful violence  upon  the  person  of  another; 
but  the  intent  to  injure  must  also  be  charged. 
Grayson  v.  State,  37  Texas,  228. 

95.  An  indictment  for  an  assault  with  a 
dangerous  weapon,  under  the  22d  section  of 
the  crimes  act,  of  March  3d,  1825  (7  L.  U.  S. 
401),  need  not  allege  that  the  as.sault  was 
committed  with  a  felonious  intent  ;  the  act 
contemplating  only  a  misdemeanor.  U.  S. 
V.  Gallagher,  2  Paine,  447. 

96.  An  indictment  which  charges  an  as- 
sault with  intent  to  do  bodily  harm  upon 
the  person  of  another,  designates  the  ofiFense 


42 


ASSAULT   AND   BATTERY 


Simple. 


Indictment. 


How  Tried. 


Evidence  for  Prosecution. 


as  a  simple  assault.     People  v.  Martin,  47 
Cal.  113. 

97.  Where  a  statute  prescribed  the  punish- 
ment for  an  assault  with  a  dangerous  weapon 
with  intent  to  kill  or  murder,  and  the  in- 
dictment charged  such  an  assault  with  in- 
tent to  kill  and  murder,  it  was  held  that 
the  prisoner  might  be  convicted  of  an  as- 
sault with  intent  to  kill,  without  the  intent 
to  murder  being  proved.  State  v.  Reed,  40 
Vt.  603. 

98.  Conclusion.  An  indictment  for  an 
assault  and  battery  which  concluded  with 
the  words  "contrary  to  the  statute,"  instead 
of  "  statutes  in  such  case  made  and  pro- 
■vided,"  was  held  sufficient.  State  v.  Berry, 
4  Halst.  374. 

99.  Abatement.  Where  the  complain- 
ant under  an  indictment  for  assault  and  bat- 
tery dies  before  trial,  the  indictment  does 
not  abate.  Com.  v.  Cunningham,  5  Litt. 
392. 

id)  HoiD  tried. 

100.  Under  joint  indictment.  When  one 
of  several  jointly  indicted  for  an  assault  and 
battery  pleads  guilty,  the  others  who  plead 
not  guilty,  cannot  insist  as  a  matter  of  right, 
to  be  tried  separately.  Thompson  v.  State, 
25  Ala.  41. 

101.  Election  of  offenses.  Where  two 
assaults  and  batteries  are  committed  on  the 
same  day,  within  a  short  time  of  each  other, 
the  i^rosecution  may  elect  which  it  will  try, 
but  cannot  submit  both  to  the  jury.  Tomp- 
kins V.  State,  17  Ga.  356.  In  South  Car- 
olina, where  two  assaults  are  alleged  in 
an  indictment,  it  is  customary  to  require 
the  prosecution  to  elect  for  which  assault  it 
will  proceed,  after  the  evidence  has  been 
heard,  and  not  before.  State  v.  Sims,  3 
Strobh.  137. 

102.  An  indictment  charged  an  assault  by 
striking  with  a  stick  and  cutting  with  a 
knife.  It  was  proved  that  during  an  alter- 
cation between  the  parties,  the  prisoner 
"held  a  stick  in  his  hand,  which  he  raised 
in  a  threatening  attitude,  and  approached 
within  about  four  feet  of  the  prosecutor  to 
strike  him,  which  he  would  have  done  if  the 
prosecutor  had  not  got  out  of  the  way,"  and 


that  soon  afterwards,  at  the  same  place,  the 
prisoner  followed  the  prosecutor  over  a 
fence  for  about  thirty  yards  with  a  drawn 
knife  in  his  hand,  and  threatened  him  at  a 
distance  of  eight  or  ten  feet.  Held  that  it 
was  not  a  case  for  an  election  of  offenses. 
Johnson  v.  State,  35  Ala.  363. 

103.  In  South  Carolina,  where  a  person 
complaining  of  an  assault  has  commenced 
a  civil  action  and  public  prosecution  there- 
for at  the  same  time,  the  attorney  general 
will  enter  a  nolle  prosequi  upon  the  indict- 
ment unless  the  party  makes  his  election. 
State  V.  Blythe,  1  Bay,  166. 

104.  In  Georgia,  as  a  person  has  a  right 
to  proceed  both  civilly  and  criminally  for  an 
assault  and  battery,  he  cannot  be  compelled 
to  elect  as  to  which  he  will  pursue ;  yet  the 
court  will  not  give  a  severe  judgment  upon 
the  criminal  conviction  unless  the  prose- 
cutor will  agree  to  relinquish  his  civil  rem- 
edy.    State  V.  Beck,  Dudley,  168. 

105.  An  assault  in  the  presence  of  the 
court  is  indictable,  even  after  the  party  has 
been  fined  for  the  contempt.  State  v.  Yan- 
cey, 1  Car.  L,  Rep.  519. 

(e)  Evidence  for  prosecution. 
108.  Record.  A  conservator  may  law- 
fully enter  the  dwelling-house  of  his  ward 
to  discharge  any  of  the  duties  of  his  office 
requiring  such  entry;  and  on  the  trial  of  a 
complaint  for  an  assault  and  battery  by  the 
ward  on  the  conservator  while  entering  the 
house  of  the  ward,  the  record  of  the  appoint- 
ment of  the  conservator  is  admissible  to 
prove  his  appointment.  State  v.  Hyde,  29 
Conn.  564. 

107.  The  complaint  or  affidavit  made  be- 
fore a  magistrate,  upon  which  a  prosecution 
for  assault  and  battery  is  based,  may  be 
given  in  evidence  on  the  trial,  either  to  con- 
tradict or  sustain  the  complainant's  testi- 
mony. State  V.  Lazarus,  1  Rep.  Const.  Ct. 
34. 

108.  Time  and  place.  On  the  trial  of  an 
information  for  an  assault,  the  prosecution 
must  prove  the  time  when  and  place  where 
the  offense  was  committed.  Baker  v.  State, 
34  Ind.  104.  See  Clark  v.  State,  lb.  436, 
and  Hampton  v.  State,  8  lb.  336,  as  to  the 


ASSAULT   AND   BATTEEY. 


43 


Simple. 


Evidence  for  Prosecution. 


necessity  of  showing  that  the   oifense  was 
committed  on  a  particuhir  day. 

109.  But  where  an  indictment  alleged  the 
commission  of  an  assault  in  a  certain  town, 
and  the  proof  showed  an  assault  in  a  different 
town  in  the  same  county,  it  was  held  that 
the  variance  was  not  material.  Com.  v.  Tol- 
liver,  8  Gray,  886. 

110.  Person  injured.  At  common  law,  a 
wife  can  testify  against  her  husband  in  cases 
of  violence  to  her  person  committed  by  him. 
Mathews  v.  Sta'e,  :J2  Texas,  117. 

111.  Where  on  the  trial  of  an  indictment 
alleging  that  H.  assaulted  R.  and  shot  and 
wounded  him,  it  was  proved  that  a  person 
by  the  name  of  R.  was  shot  by  H.,  but  it 
was  not  shown  that  the  R.  who  was  shot 
was  the  party  named  in  the  indictment — it 
was  held  that  a  conviction  could  not  be  sus- 
tained.     Hardin  v.  State,  26  Texas,  113. 

112.  The  defendant  was  charged  with  an 
assault  and  battery  on  T.  A.,  a  deputy 
sheriif.  On  the  trial,  it  was  proved  that  the 
person  upon  whom  the  assault  and  battery 
was  committed  was  commissioned  a  deputy 
sheriff  by  the  name  of  T.  K.  junior.  Held 
no  variance.     Com.  v.  Beckley,  3  Mete.  330. 

113.  A  variance  between  the  indictment 
and  evidence  as  to  the  name  of  the  person 
assaulted,  is  not  material  where  the  names 
may  be  sounded  alike.  Ward  v.  State,  28 
Ala.  53.  But  where  the  indictment  charged 
that  the  defendant  assaulted  Silas  Melville, 
and  it  was  proved  that  the  person  assaulted 
was  Melvin,  it  was  held  that  the  variance 
was  fatal.  State  v.  Curran,  18  Mo.  320. 
Proof  that  tlie  defendant  had  beaten  Cath- 
arine Swails  will  not  sustain  an  indictment 
for  an  assault  and  battery  on  Ratbarine 
Swails.     Swails  v.  State,  7  Blackf.  324. 

114.  The  charge  of  an  assault  upon  two  is 
in  legal  sense  so  different  from  a  charge  of 
an  assault  upon  one  of  them,  tliist  proof  of  the 
commission  of  the  act  in  regard  to  one  will 
not  sustain  the  indictment.  State  v.  Mc- 
Clintock,  8  Iowa,  203. 

115.  Weapon.  On  the  trial  of  an  indict- 
ment for  assaulting  another  Avith  a  danger- 
ous weapon,  under  the  statute  of  New  York 
(Laws  of  1854,  ch.  74),  tlie  prosecution  need 
not  prove    with   what   weapon    the  assault 


was  made.  It  is  sufficient  to  show  that  a 
sliarp  dangerous  weapon  to  the  jurors  un- 
known was  emptoyed  by  the  prisoner.  Nel- 
son V.  People,  5  Parker,  39. 

116.  Where  an  indictment  for  an  assault 
charges  the  defendant  with  having  com- 
mitted the  assault  with  several  weapons,  it 
is  immaterial  whether  he  used  one  or  all  of 
the  weapons.  State  v.  McClintock,  1  Iowa, 
(Greene),  392. 

117.  Character  of  weapon,  how  deter- 
mined. Where  it  is  practicable  for  the 
court  to  declare  whether  or  not  a  weapon  is 
a  dangerous  weapon,  it  is  matter  of  law. 
Bat  where  the  question  is,  whether  an  as- 
sault with  a  dangerous  weapon  has  been 
proved,  and  the  weapon  might  be  dangerous 
to  life  or  not,  according  to  the  manner  in 
which  it  was  used,  or  the  part  of  the  body 
attempted  to  be  stuck,  it  is  matter  of  fact 
to  be  determined  by  the  jury.  U.  S.  v. 
Small,  2  Curtis  C.  C.  241. 

118.  Act  committed.  Where,  under  an 
indictment  for  an  assault  by  striking  with  a 
stick,  the  evidence  only  shows  an  attempt  or 
offer  to  strike  with  a  stick,  the  variance  is 
fatal.     Johnson  v.  State,  35  Ala.  363. 

119.  An  indictment  against  A.  for  an  as- 
sault and  battery  upon  B.  is  not  sustained  by 
proof  that  A.  assaulted  and  beat  B.  in  a 
fight  with  the  fists  by  mutual  agreement, the 
offense,  under  the  statute  (of  Ohio),  being 
an  affray.  Champer  v.  State,  14  Ohio,  N.  S. 
437. 

120.  An  indictment  charged  that  the 
defendant  and  four  others  made  an  assault 
upon  a  person  named.  It  was  proved  that 
the  assault  was  made  by  the  defendant   and 

five  others.  Held,  that  tlie  variance  was  fatal. 
State  V.  Harvell,  4  Jones,  55. 

121.  The  section  of  the  code  of  Alabama 
on  which  the  indictment  was  framed  read 
thus:  "All  persons,  to  the  number  of  two 
or  more,  who  abuse,  whip,  or  beat  any  per- 
son, upon  any  accusation,  real  or  pretended, 
or  to  force  such  person  to  confess  himself 
guilty  of  any  offense."  (Code,  §  3108).  Held, 
that  to  make  out  the  offense  contemplated 
by  this  section,  the  accusation  must  be  the 
moving  cause  of  the  abuse  or  violence. 
Underwood  v.  Stnte,  25  Ala.  70. 


44 


ASSAULT   AND    BATTERY. 


Simple. 


Evidence  for  Prosecution. 


122.  Intent.  The  preconceived  intention 
of  committing  the  assault  may  be  proved  in 
aggravation.     Yoes  v.  State,  4  Eng.  42. 

123.  On  the  trial  of  an  information  for 
assault  and  battery  it  is  competent  to  prove, 
on  the  question  of  intent,  that  the  defend- 
ant, while  the  assault  and  battery  were  being 
committed,  declared  that  the  person  assailed 
had,  three  years  before,  assaulted  and  drawn 
a  pistol  on  him,  and  that  defendant  was  now 
having  his  revenge  for  it.  Hamilton  v. 
State,  36  Ind.  280. 

124.  To  convict  of  an  assault  with  a 
deadly  weapon,  with  intent  to  inflict  a 
bodily  injury,  it  must  be  proved  that  the 
defendant  had  both  the  ability  and  the 
intention  to  make  the  assault.  Therefore, 
where  the  evidence  showed  that  he  pointed 
and  attempted  to  discharge  a  capped  pistol 
at  another,  beyond  striking  distance,  it  was 
held  that  to  warrant  a  verdict  of  guilty  it 
must  be  shown  that  the  pistol  was  loaded. 
State  V.  Napper,  6  Nev.  113. 

125.  Burden  of  proof.  Where,  on  a  trial 
for  assault  and  l)attery,  the  defendant  does 
not  set  up  any  independent  fact  in  defense, 
but  contends  that  taking  the  facts  and  cir- 
cumstances as  proved  on  both  sides,  he  is 
entitled  to  acquittal,  the  burden  is  on  the 
prosecution  to  show  his  guilt  beyond  a 
reasonable  donbt.  Com.  v.  McKee,  1  Gray, 
61. 

126.  Where,  on  a  trial  for  assault  and 
battery,  it  was  proved  that  the  prosecutor 
was  taking  away  from  the  presence  of  the 
defendant  his  personal  property,  it  was  held 
that  he  had  a  right  to  strike  in  defense  of 
the  same,  if  the  prosecutor  was  not  then  a 
lawful  officer,  and  that  to  make  the  defend- 
ant criminally  liable  the  onus  lay  on  the 
State  to  show  that  the  prosecutor  was  at  the 
time  a  lawful  officer,  and  was  armed  with  a 
lawful  process.  State  v.  Briggs,  8  Ired. 
357. 

127.  Presumptions.  Evidence  that  an 
assault  upon  the  prosecutor  followed  soon 
after  his  declaration,  "  that  no  honest  man 
would  avail  himself  of  the  bankrupt  law," 
is  admissible,  as  tending  to  point  out  the 
individual  who  committed  the  ofi^ense.  State 
V.  Griffiths,  3  Ired.  504. 


128.  On  a  trial  for  an  assault  and  battery 
upon  the  person  of  Mrs.  B.,  the  defendant 
claimed  that  the  collision  resulted  from  the 
act  of  Mrs.  B.  herself,  and  was  on  the  de- 
fendant's part  accidental,  and  not  willful 
or  malicious.  It  was  proved  that  Mrs.  B. 
was  stricken  down  in  the  encounter  and 
seriously  injured,  and  that  she  was  for  some 
time  confined  to  her  room,  under  the  care  of 
a  physician.  Held^  that  on  the  question  as 
to  who  was  the  aggressor,  it  was  competent 
to  show  that  the  defendant  did  not  call  on 
Mrs.  B.,  or  manifest  toward  her  any  sym- 
pathy while  she  was  suffering  from  the 
injury;  and  also,  that  the  two  grown  up 
daughters  of  the  defendant,  who  were  living 
with  her,  and  who  were  present  at  the 
assault,  wholly  neglected  Mrs.  B.  after  the 
injury.     State  v.  Alford,  31  Conn.  40.    , 

129.  When  the  wife  commits  an  assault  in 
the  presence  of  her  husband,  she  is  pre- 
sumed to  act  under  bis  coercion.  State  v. 
Williams,  65  N.  C.  398.  Where  the  assault 
of  which  a  married  woman  was  charged 
was  committed  in  the  presence  of  her 
husband,  it  was  held  error  for  the  court, 
when  requested,  to  refuse  to  charge  the  jury 
that  "  the  presumption  was  that  she  acted 
under  the  coercion  and  control  of  her 
husband."     Com.  v.  Eagan,  103  Mass.  71. 

130.  It  is  sufficient  proof  that  a  person 
assaulted  was  a  police  officer,  that  at  the 
time  he  was  acting  as  such,  and  had  so  acted 
during  the  four  previous  years.  Com.  v. 
Kane,  108  Mass.  And  see  Com.  v.  Tobin, 
108  Mass.  426. 

131.  On  the  trial  of  an  indictment  for  an 
assault  and  battery  on  an  officer  while  seiT- 
ing  a  warrant  on  the  defendant,  a  witness 
for  the  defendant  who  has  explained  the 
relative  position  of  the  parties  at  the  time 
of  the  transaction,  and  stated  who  were 
present,  and  how  he  and  the  others  were 
engaged,  cannot  be  asked  "  if  he  would 
have  been  likely  to  have  heard  if  anything 
had  been  said  by  the  officer  to  the  defendant. 
Com.  V.  Cooley,  6  Gray,  350. 

132.  In  Massachusetts,  on  the  trial  of  an 
indictment  for  prize  fighting,  under  the 
statute,  it  need  not  be  proved  by  direct 
evidence  that  there  was  a  previous  appoint- 


ASSAULT   AND    BATTERY. 


45 


Simple. 


Evidence  for  Prosecution. 


Evidence  for  Defense. 


raent  or  arrangement,  but  it  may  be  inferred 
from  circumstances,  and  it  is  not  material 
whether  or  not  it  was  made  in  the  State. 
Cora.  V.  Welsh,  7  Gray,  324. 

133.  "What  need  not  be  proved.  Under 
a  complaint  for  an  assault,  which  alleges  that 
the  defendant  pointed  a  gun  at  another,  and 
threatened  to  shoot,  it  is  not  necessary  to 
prove  a  threat  to  shoot.  Com.  v.  White,  110 
Mass.  407. 

134.  On  the  trial  of  an  indictment  for 
impeding  an  officer,  averments  in  relation  to 
the  character  of  the  person  assaulted  need 
not  be  proved,  being  merely  descriptive  of 
the  person.     State  v.  Burt,  35  Vt.  373. 

135.  On  the  trial  of  an  indictment  for 
ejecting  a  passenger  from  a  railway  car,  it  is 
error  for  the  court  to  receive  evidence  of  the 
general  temperance  and  sobriety  of  the 
prosecutor,  his  conduct  on  the  passage  in 
question  being  alone  in  issue.  People  v. 
Caryl,  3  Parker,  326. 

{f)  Eoidence  for  defense. 

136.  Where  person  assaulted  is  un 
known.  It  can  be  no  defense,  to  a  person 
indicted  for  an  assault  upon  a  person 
unknown,  that  the  person  assaulted  becomes 
known  prior  to,  or  at  the  time  of  the  trial. 
But  it  must  appear  that  the  grand  jury 
knew  such  person  at  the  time  they  found 
the  indictment,  and  that  it  was  found  for  an 
assault  upon  some  other  person  who  was  not 
made  known  to  them.  People  v.  White,  55 
Barb.  GOG. 

137.  Self-defense.  It  is  erroneous  for  the 
court  to  charge  the  jury  that  the  facts 
proved  are  no  justification  of  the  assault  and 
battery.  The  facts  should  be  submitted  to 
them,  with  instructions  as  to  what  would, 
and  what  would  not,  in  law,  be  a  justifica- 
tion.    Com.  v.  Goodwin,  3  Cush.  154. 

138.  Whether  A.  was  justified  in  firing  a 
pistol  at  B.  and  wounding  him,  on  the 
ground  that  B.  was  throwing  missiles  at  A., 
and  that  the  latter  was  in  fear  of  his  life, 
and  fired  in  order  to  frighten  B.  and  deter 
him  from  further  violence,  is  a  question  of 
fact  for  the  jury  in  considering  the  charac- 
ter of  the  assault  of  B.  on  A.  Com.  v.  Mann, 
116  Mass.  58. 


139.  Defense  of  property-  The  defend- 
ant may  prove  that  he  owned  the  premises 
on  which  the  assault  and  battery  were  com- 
mitted, and  that  he  did  the  acts  complained 
of  in  defense  of  his  possession ;  and  in  New 
York,  if  the  assault  and  battery  were  com- 
mitted in  resisting  persons  entering  upon 
the  premises  to  open  and  work  a  highway, 
tlie  defendant  may  prove  that  the  alleged 
highway  was  laid  through  his  orchard  of 
four  years'  growth,  without  his  consent. 
Harrington  v.  People,  6  Barb.  608. 

140.  Character  of  prosecutor.  On  the 
trial  of  an  indictment  for  assault  and  bat- 
tery, the  defendant  cannot  set  up  the  gen- 
eral reputation  or  conduct  of  the  prosecutor 
as  an  overbearing,  tyranical  and  dangerous- 
man.  But  when  it  is  shown  that  the  de- 
fendant was  under  reasonable  fear  of  his 
life,  or  great  bodily  harm  from  the  prose- 
cutor, the  temper  of  the  latter,  in  connec- 
tion with  previous  threats,  is  admissible  in 
evidence.  Harman  v.  State,  3  Head,  243. 
Evidence  that  the  person  assaulted  was  a 
quarrelsome  man,  is  not  available  to  the  de- 
fendant without  proof  that  the  fact  was 
known  to  him.  State  v.  Meader,  47  Vt. 
78. 

141.  On  the  trial  of  an  indictment  for  an 
indecent  assault  upon  a  female,  evidence  is 
admissible  of  the  bad  character  of  the 
prosecutrix  for  chastity.  Com.  v.  Kendall, 
113  Mass.  210. 

142.  Character  of  defendant.  On  the 
trial  of  an  indictment  for  assault  and  bat- 
tery, it  is  competent  for  the  defendant  to 
prove  his  general  good  character.  Hance 
V.  State,  8  Fla.  56 ;  Drake  v.  Com.  10  B. 
Mon.  22.J,  contra. 

143.  Wife  as  witness.  On  the  trial  of 
tlie  husband  for  an  assault  and  battery  com- 
mitted by  him  on  liis  wife,  she  is  a  compe- 
tent witness  in  his  behalf.  Com.  v.  Mur- 
phy, 4  Allen,  491. 

144.  On  the  trial  of  an  indictment  against 
a  father  and  son  for  assault  and  battery,  it 
appeared  that  the  son  struck  the  prosecutor, 
and  that  the  father  took  no  other  part  than 
by  words  of  encouragement  to  the  son.  Jleld 
that  the  wife  of  the  father  was  a  competent 
witness  for  the  son.     State  v.  Mooncy,  64  N. 


46 


ASSAULT   AND   BATTERY 


Simple. 


Evidence  for  Defense. 


C.  54;  citing  with  approval,  State  v.  Rose, 
Pliil.  40G,  and  State  v.  Ludwick,  lb.  401. 

145.  Mitigating  circumstances.  On  the 
trial  of  an  indictment  for  assault  and  bat- 
tery, it  appeared  that  the  language  and  de- 
portment of  the  party  injured,  were  in  the 
highest  degree  reprehensible,  and  calculated 
to  provoke  violence  on  the  part  of  the  de- 
fendant, who  was  an  old  man.  Ileld  that 
they  did  not  justify  the  assault,  but  could 
only  be  considered  by  the  jury  in  mitigation 
of  the  fine.  State  v.  Harrington,  31  Ark. 
195. 

146.  On  the  trial  of  the  husband  for  an 
assault  and  batteiy  committed  by  him,  on 
his  wife,  he  may  show  in  mitigation  that 
when  he  committed  the  offense,  he  was  pro- 
voked to  do  so  by  the  misbehavior  and  mis- 
conduct of  his  wife.  Robbins  v.  State,  20 
Ala.  3G. 

147.  On  the  trial  of  a  railroad  conductor 
for  assault  and  battery,  in  forcibly  removing 
a  passenger  fi*om  the  train,  who  had  con- 
ducted himself  in  a  violent  and  disorderly 
manner,  so  as  seriously  to  disquiet  the  other 
passengers,  it  was  held  competent  for  the 
defendant  to  give  evidence  of  misconduct 
during  the  entire  passage,  as  it  was  a  short 
one,  if  it  was  apparent  that  the  disposition 
and  feeling  which  prompted  it,  continued 
and  influenced  the  complainant's  conduct 
up  to  the  time  of  his  removal.  And  one  of 
the  grounds  of  justification  being  that  the 
complainant  improperly  refused  to  surrender 
his  ticket  when  requested,  it  was  held  that 
the  judge  improperly  rejected  evidence  to 
prove  that  the  regulation  and  custom  of  the 
company  had  always  been  for  the  conductor 
to  collect  tickets  at  a  certain  point,  as  that 
would  have  shown  that  the  defendant  was 
not  influenced  by  any  hostile  motives  when 
the  ticket  was  demanded.  People  v.  Caryl, 
a  Parker,  326. 

148.  Evidence  that  the  person  assaulted 
"was  a  lazy  vagabond,  w^ho  would  not 
work  if  he  could  help  it,  that  money  could 
not  be  made  out  of  him  by  legal  process, 
that  he  had  owed  the  defendant  a  long 
time  and  would  not  pay,  and  that  the  de- 
fendant, on  the  day  on  which  the  assault 
was  committed,  had  offered  him  ten  dollars 


an  hour  if  he  would  work  for  him  in  pay- 
ment of  said  indebtedness,  and  he  had  re- 
fused to  do  it,"  is  not  admissible  for  the  de- 
fendant in  mitigation.  Ward  v.  State,  28 
Ala.  53. 

149.  A  party  who,  when  an  officer  is  en- 
deavoring to  ari'est  him,  by  his  violent  con- 
duct deprives  the  officer  of  the  opportunity 
to  read  the  warrant  or  state  the  cause  of 
arrest,  cannot  avail  himself  of  the  omission 
of  the  officer  to  do  so,  as  a  justification  of 
his  resistance  and  efforts  to  escape.  Com.  v. 
Cooley,  6  Gray,  350. 

150.  On  the  trial  of  an  indictment  for 
assault  and  T)attery  in  resisting  an  officer  in 
serving  an  attachment  against  property  in 
which  the  defendant  in  the  attachment  had 
no  attachable  interest,  evidence  is  not  ad- 
missible in  behalf  of  the  accused  to  show 
that  the  attachment  was  obtained  by  con- 
nivance between  the  plaintiff  and  defendant 
therein,  with  intent  to  get  possession  of  his 
goods  and  defraud  him  out  of  the  same. 
State  V.  Buchanan,  17  Vt,  573. 

151.  In  South  Carolina,  it  was  held  on  the 
trial  of  an  indictment  for  assault  and  bat- 
tery that  under  the  plea  of  not  guilty  no  evi- 
dence of  mitigating  circumstances  could  be 
offered,  but  that  such  evidence  must  be  pre- 
sented at  the  time  of  sentence.  State  v. 
Smith,  2  Bay,  62. 

152.  Declarations  of  defendant.  On  the 
trial  of  an  indictment  for  assault  and  battery, 
the  remark  of  the  accused  to  the  person 
beaten,  ''If  I  had  known  you  were  a  one 
legged  man  I  would  not  have  struck  you," 
made  as  soon  as  the  blow  was  given  was  held 
admissible  in  evidence  in  mitigation.  Riddle 
V,  State,  49  Ala.  389.  But  the  defendant 
cannot  be  allowed  to  prove  what  transpired 
between  him  and  the  prosecutor  at  a  pre- 
vious interview,  in  the  forenoon  of  the  same 
day.     Rosenbaum  v.  State,  33  Ala,  354. 

153.  On  the  trial  of  an  indictment  for 
assault  and  battery  by  firing  a  loaded  pistol 
at  one  B.,  it  was  proved  that  the  defendant 
took  aim  and  fired  at  B.  after  announcing 
his  intention  to  do  so,  and  that  the  ball  pene- 
trated B.  's  clothing,  and  indented  his  watch ; 
that  B.  then  said,  ''Now  you've  done  it,"  and 
the  defendant  replied  "  Didn't  I  say,  FU  hit 


ASSAULT   AND   BATTERY. 


47 


Simple. 


Verdict  and  Judgment. 


you?"  and  that  B.  then  went  away.  Held 
that  the  defendant  could  not  show  that  after 
B.  left,  he  stated  to  persons  present  that  he 
did  not  know  the  pistol  was  loaded,  that  he 
was  not  in  the  habit  of  carrying  a  pistol,  that 
the  one  used  was  an  old  one  knocking  about 
in  a  club  room,  that  it  was  frequently 
snapped  by  persons  frequenting  the  place, 
and  that  just  before  B.  came  in,  the  de- 
fendant put  the  muzzle  into  his  mouth,  and 
snapped  the  pistol  several  times,  the  cylin- 
der not  revolving  of  itself,  when  the  pistol 
was  snapped.  Com.  v.  McLaughlin,  5  Allen, 
507. 

{g)    Verdict  and  judgmeut. 

154.  Under  plea  of  former  conviction. 

The  plea  of  former  conviction  to  an  indict- 
ment for  assault  and  battery  is  an  admission 
of  the  charge,  and  when  overruled,  the  court 
should  pronounce  judgment  against  the  de- 
fendant as  upon  a  conviction.  State  v.  Epps, 
4  Sneed,  552. 

155.  "Without  plea.  On  a  trial  for  assault 
and  battery,  a  verdict  where  there  has  been 
neither  an  arraignment  or  plea,  is  a  nullity ; 
and  the  court  cannot  direct  a  plea  of  not 
guilty  to  be  entered  for  the  defendant  with- 
out his  consent,  and  then  render  judgment 
against  him  on  the  verdict.  Davis  v.  State, 
38  Wis.  487.     See  State  v.  Cole,  19  lb.  129. 

156.  "Where  there  are  two  indictments. 
Where  there  were  two  indictments,  one  for 
resisting  legal  process,  and  the  other  for  an 
assault,  it  was  held  that  if  the  same  testimony 
would  support  both  charges,  the  party  could 
not  be  found  guilty  of  both.  State  v.  John- 
son, 12  Ala.  840. 

157.  Against  several.  Some  of  several 
jointly  indicted  may  be  convicted  of  assault, 
and  others  of  a  battery,  or  of  assault  and 
battery  committed  on  the  same  occasion 
upon  the  same  party.  White  v.  People,  32 
N.  Y.  465;  Lewis  v.  State,  33  Ga.  131. 

158.  For  part  of  offense  charged.  On 
the  triiil  of  an  indictment  for  an  assault  with 
intent  to  murder,  a  nolle  jyrosequi  may  be 
entered  as  to  the  intent  to  murder,  and  the 
defendant  be  convicted  of  an  assault.  Baker 
V.  State,  12  Ohio,  N.  S.  214 ;    contra,  Grant 


V.    State,    2    Cold.    Tenn.  216;   approving 
Britain  v.  State,  7  Humph.  159. 

159.  In  Maine,  under  the  statute  (E.  S. 
ch.  131,  §  4),  when  an  indictment  charges  a 
riot  with  an  assault  and  battery,  the  de- 
fendant may  be  acquitted  of  the  former  and 
found  guilty  as  to  the  latter.  State  v.  Ham, 
54  Maine,  194. 

160.  Under  an  indictment  for  manslaugh- 
ter, the  defendant  may  be  convicted  of 
common  assault  and  battery.  State  v.  Scott, 
24  Vt.  127. 

161.  On  the  trial  of  an  information  for 
rescuing  a  prisoner  from  the  sheriff,  and  for 
assault  and  battery,  the  defendant  may  be 
acquitted  of  the  rescue  and  convicted  of  the 
assault  and  battery.  Rose  v.  State,  33  Ind. 
167. 

182.  On  the  trial  of  an  indictment  for 
maiming,  the  defendant  may  be  found  guilty 
of  an  aggravated  assault  and  battery.  Guest 
V.  State,  19  Ark.  405. 

163.  Where  the  indictment  charges  a  riot 
and  assault,  a  finding  that  the  defendant  is 
guilty  of  a  riot  is  insufficient.  State  v. 
Creighton,  1  Nott  and  McCord,  256. 

164.  On  the  trial  of  an  indictment  for 
assault  and  battery,  the  jury  rendered  the 
following  verdict :  "  Guilty  of  an  assault,  but 
not  with  the  intention  of  injuring  the  parties, 
and  not  of  the  battery."  Held  bad  for  un- 
certainty.    State  V.  Izard,  14  Rich.  209. 

165.  Where  an  indictment  charges  an 
assault  and  battery,  and  rescue,  and  the  de- 
fendant is  convicted  generally,  if  the  aver- 
ments as  to  the  rescue  are  bad  for  uncer- 
tainty, they  may  be  rejected  as  surplusage, 
and  the  defendant  be  sentenced  upon  the 
verdict  as  for  an  assault  and  battery.  State 
V.  Morrison,  2  Ired.  9. 

166.  Construction.  The  legal  effect  of  the 
following  verdict:  "We  find  the  prisoner 
guilty  of  an  assault  with  intent  to  do  bodily 
harm,"  is,  that  the  prisoner  is  guilty  of  a 
simple  assault.  Hussy  v.  People,  47  Barb. 
50:3. 

167.  Settlement.  An  assault  and  battery 
cannot  be  compromised  after  the  defendant 
is  found  guilty.  People  v.  Bishop,  5  Wend. 
111. 


48 


ASSAULT   AND   BATTERY. 


Assault  with  Intent  to  Kill. 


What  Constitutes. 


2.  Assault  with  intent  to  kill. 

(d)    What  contititute'i. 

168.  Need  not  be  wounding.  A  person 
may  assault  another  w  ith  intent  to  kill  with- 
out striking  or  wounding.  State  v.  McClure, 
25  Mo.  338.  Where  a  person  went  to  an- 
other's house  after  being  told  not  to  come, 
and  at  the  request  of  some  of  the  inmates, 
went  in,  and  being  ordered  out  by  the 
owner,  asked  him  to  go  out  with  him,  and 
the  owner  refusing,  he  stopped  at  the  door, 
and  drew  a  pistol  upon  the  owner,  it  was 
held  an  assault  with  intent  to  murder.  State 
V.  Boyden,  13  Ired.  505, 

169.  Act  must  be  adapted  to  design. 
To  justify  a  conviction  for  an  assault  with 
intent  to  murder,  there  must  be  some 
adaptation  in  the  act  done  to  accomplish 
the  alleged  purpose.  An  instruction  that 
the  presenting  of  a  pistol  loaded  and  cocked, 
within  carrying  distance,  by  one  man  at  an- 
other, with  his  finger  on  the  trigger,  in  an 
angry  manner,  is  of  itself  an  assault  with 
intent  to  murder,  is  erroneous.  Morgan  v. 
State,  33  Ala.  413.  In  Ohio,  the  discharging 
a  gun  loaded  with  powder  and  wad  at  a 
person  so  far  distant  that  no  injury  would 
probably  result  from  the  act,  is  not  a  vio- 
lation of  the  statute.  (Crimes  Act,  §  24.) 
Henry  v.  State,  18  Ohio,  32. 

170.  A  person  having  been  arrested  as  a 
deserter  from  the  United  States  army,  the 
party  arresting  him,  with  a  pistol  in  one 
hand,  and  holding  him  by  the  collar  with 
the  other,  forced  him  into  a  groceiy  and  de- 
tained him  in  confinement  one  hour.  But  it 
did  not  appear  that  the  pistol  was  presented 
in  a  menacing  manner,  or  that  any  effort 
was  made  to  shoot,  or  threat  to  do  so.  Held 
that  a  conviction  for  an  assault  with  a  deadly 
weapon  with  intent  to  inflict  bodily  injury 
could  not  be  sustained.  Tarpley  v.  People, 
42  111.  340. 

171.  But  if  the  object  fail  of  accomplish- 
ment by  reason  of  an  impediment  which  was 
unforseen  by  the  ofiender,  who  employs 
means  ostensibly  appropriate,  the  criminal 
attempt  is  committed.  Kuukle  v.  State,  32 
Ind.  220 ;  disapproving  State  v.  Swails,  8  lb 
524.    On  a  trial  for  an  assault  with  intent  to 


murder,  committed  on  M.,  it  was  proved 
that  the  defendant  attemi3ted  to  cut  M.'s 
throat  with  a  pocket  knife,  but  that  before 
any  blow  was  struck  with  it,  M.'s  wife  caught 
the  knife,  and  it  fell  out  of  the  defendant's 
hand  ;  whereupon  the  defendant  took  up  M.'s 
gun,  and  M.  seized  it  and  took  it  away  from 
him.  Held  sufiicient  to  sustain  a  conviction. 
Weaver  v.  State,  24  Texas,  387. 

172.  Where,  after  a  party  had  been  il- 
legally arrested,  and  he  had  voluntarily 
taken  the  officer  to  the  room  where  his  bag- 
gage was,  and  submitted  it  to  the  inspection 
of  the  officer,  he  shot  the  officer,  it  was  held 
that  a  conviction  of  assault  with  intent  to 
murder  was  proper.  Johnson  v.  State,  30 
Ga.  426. 

173.  Where  on  the  trial  of  an  indictment 
for  assaulting  and  shooting  another,  it  was 
proved  that  the  defendant,  being  in  search 
of  the  prosecutor  with  a  loaded  gun,  with  a 
deliberate  purpose  to  take  his  life,  saw  the 
prosecutor's  gun  presented  towards  him,  and 
instantly  fired  his  own  gun,  in  pursuance  of 
his  original  purpose  to  kill,  it  was  held  that 
he  was  guilty  of  the  ofiense  charged.  David- 
son V.  State,  9  Elumph.  455. 

174.  Where  one,  with  great  violence  and 
force,  pushed  another  down,  threw  him  iuto 
a  pond,  and  endeavored  to  strangle  him  by 
holding  his  head  underwater, it  was  held  to 
be  an  assault  and  battery  with  intent  to  kill. 
Southworth  v.  State,  5  Conn.  325. 

175.  Weapon  need  not  have  been  deadly. 
In  Missouri,  to  constitute  a  felonious  assault 
within  the  statute  (Crimes  Act,  art.  2,  §  38), 
if  the  injury  inflicted  be  of  such  a  danger- 
ous nature  as  to  be  liable  to  cause  death,  the 
instrument  used  need  not  have  been  a  deadly 
weapon.     Cameo  v.  State,  11  Mo.  579. 

176.  The  intent.  Where,  under  an  in- 
dictment for  an  assault  with  intent  to  mur- 
der, the  circumstances  are  such  that,  if 
death  had  ensued,  the  killing  would  have 
been  murder,  the  offense  is  complete.  People 
V.  Scott,  6  Mich.  287;  Maher  v.  People,  10 
lb.  212.  But  under  the  statute  of  New 
York,  prescribing  the  punishment  for  an  as- 
sault and  battei-y  upon  another,  by  means  of 
a  deadly  weapon  with  the  intent  to  kill, 
maim,  ravish,  &c.,  it  is  not  necessary  that 


ASSAULT   AND   BATTERY. 


49 


Assault  with  Intent  to  Kill. 


What  Constitutes. 


Indictment. 


the  defendant  should  entertain  the  intent 
essential  to  the  crime  of  murder.  An  intent 
to  commit  any  felony  is  sufficient  to  consti- 
tute the  oflfense.  People  v.  Kerrains,  1  N. 
Y.  Supm.  N.  S.  333. 

177.  Need  not  be  malice  in  fact.  If 
A.,  without  any  malice  in  fact  against  B., 
intending  to  divert  himself  by  frightening 
B.,  shoots  at  him,  not  caring  whether  he  hit 
him  or  not,  A.  is  guilty  of  an  assault  with 
intent  to  murder.  Collier  v.  State,  39  Ga. 
31. 

173.  Meaning  of  assault  with  intent. 
There  is  no  material  difference  between  an 
assault  with  intent  and  assault  with  attempt 
to  commit  a  crime.  Johnson  v.  State,  14  Ga. 
55.  An  intent  to  do  a  wrongful  act,  coupled 
with  overt  acts  toward  its  commission,  con- 
stitutes the  attempt  spoken  of  by  the  statute 
of  New  York  (3  R.  S.  5th  ed.  p.  583,  §  3), 
which  provides  that  "  every  person  who 
shall  attempt  to  commit  an  offense  prohib- 
ited by  law,  and  in  such  attempt  shall  do 
any  act  toward  the  commission  of  such  of- 
fense, but  shall  fail  in  the  perpetration  there- 
of, and  shall  be  prevented  or  intercepted  in 
executing  the  same,  shall  be,  upon  convic- 
tion, punished,''  &c.  McDermott  v.  Peo- 
ple, 5  Parker,  102. 

179.  When  deemed  a  felony.  An  assault 
with  intent  to  kill  was  not  known  as  a  felony 
at  common  law.  Hall  v.  State,  9  Fla.  203 ; 
Ludwick  v.  State,  lb.  404.  Under  the  stat- 
ute of  New  York,  it  is  only  a  felony  when 
committed  with  some  deadly  weapon,  or 
with  some  other  means  or  force  likely  to 
produce  death.  O'Leary  v.  People,  4  Par- 
ker, 187. 

{i)  Indictment. 

180.  Averment  of  acts  constituting  of- 
fense. An  indictment  for  an  assault  with 
intent  to  commit  a  felony  must  specify  the 
felony.  State  v.  Hailstock,  2  Blackf.  257; 
and  set  forth  the  facts.  Trexler  v.  State,  19 
Ala.  21;  State  v.  Jordan,  19  Mo.  212;  Bcas- 
ley  V.  State,  18  Ala.  535.  But  in  Missouri, 
under  the  statute  (R.  0.  1835,  art.  35),  re- 
quiring the  Indictment  to  state  the  circum- 
stances attending  the  commission  of  the  of- 
fense, it  is  sufficient  to  charge  that  the  as- 


sault is  made  feloniously  and  with  a  danger- 
ous weapon.     Jennings  v.  State,  9  Mo.  852. 

181.  An  indictment  for  an  assault  with 
intent  to  murder  charged  the  defendant  as 
principal  in  the  second  degree  in  being  pres- 
ent, aiding  and  abetting  the  chief  perpe- 
trator, and  specified  the  acts  whereby  the 
aiding  and  abetting  were  done.  Held  that 
the  averment  descriptive  of  such  acts  could 
not  be  stricken  from  the  indictment  without 
the  consent  of  the  defendant.  Fulford  v. 
State,  50  Ga.  591. 

182.  An  indictment  charging  that  the  de- 
fendant feloniously  assaulted  one  D.  with  a 
pistol  loaded  with  powder  and  ball,  with  in- 
tent him,  the  said  D.,  of  his  malice  afore- 
thought, to  kill  and  mui'der,  is  sufficient, 
without  specifying  the  particular  acts  con- 
stituting the  assault.  People  v.  English,  30 
Cal.  214.  And  see  State  v.  Robey,  8  Nev. 
312 ;  s.  c.  1  Green's  Grim.  Reps.  674. 

183.  An  indictment  for  an  assault  with  a 
dangerous  weapon,  is  sufficient  which  alleges 
that  the  defendant,  being  armed  with  a  gun 
loaded  with  powder  and  shot  and  capped, 
made  an  assault  in  and  upon  A.,  with  the 
felonious  intent  to  kill  and  murder  him  with 
said  gun  by  feloniously  discharging  the 
same  at  him,  and  by  beating,  bruising 
and  wounding  him  with  said  gun,  and 
thereby  inflicting  upon  him  a  mortal  wound ; 
and  it  will  be  supported  by  proof  that  the 
defendant  beat  A.  with  the  gun.  Com.  v. 
Creed,  8  Gray,  387. 

184.  In  Massachusetts,  an  indictment 
under  the  statute  (Gen.  Stats,  ch.  160,  §  32), 
which  provides  for  the  punishment  of  "who- 
ever mingles  any  poison  with  food,  drink 
or  medicine,  with  intent  to  kill  or  injure 
another  person,"  alleging  that  the  defendant 
mingled  poison  with  water  which  he  knew 
was  to  be  drunk  by  his  wife,  and  with  intent 
to  kill  her,  is  sufficient  without  stating  that 
the  mixture  was  poisonous  or  known  to  be 
so  by  the  defendant.  Com.  v.  Galavan,  9 
Allen,  271. 

185.  Description  of  weapon.  If  an  as- 
sault with  intent  to  kill,  be  made  with  a 
weapon  the  ordinary  name  of  which  ex  vi 
teriiiitii  imports  its  deadly  character,  it  is 
sufficient  to  describe  it  in  the  indictment  by 


50 


ASSAULT   AND   BATTERY. 


Assault  with  Intent  to  Kill. 


Indictment. 


such  name;  but  in  other  oses,  the  instru- 
ment used  should  be  described  and  charged 
to  be  deadly.  If  the  weapon  be  insuffi- 
ciently described,  a  conviction  may  be  sus- 
tained for  assault  and  battery.  Kruget  v. 
State,  1  Kansas,  365. 

186.  Where  an  assault  is  made  with  an 
axe,  it  will  be  deemed  a  deadly  weapon, 
without  being  so  described  in  the  indict- 
ment.    Dollarhide  v.  U.  S.  1  Morris,  233. 

187.  In  New  York,  an  indictment  charg- 
ing an  assault  and  battery  with  "  an  intent 
to  kill,"  without  setting  forth  some  of  the 
means  which  the  statute  names,  will  not 
warrant  a  conviction  of  any  offense  higher 
than  assault  and  battery.  People  v.  Davis, 
4  Parker,  61.  In  Texas,  the  indictment 
need  not  state  the  instrument  or  means 
employed.  Martin  v.  State,  40  Texas,  19 ; 
Bittick  V.  State,  lb.  117.  And  it  is  the 
same  iu  Iowa  and  Tennessee.  State  v.  Sea" 
mons,  1  Iowa,  418;  Harrison  v.  State,  2 
Cold.  Tenn.  233. 

183.  When  two  commit  a  joint  assault 
with  intent  to  murder,  the  one  with  a  knife 
and  the  other  with  a  gun,  an  indictment 
which  charges  theui  jointly  is  not  bad  for 
duplicity.     Shaw  v.  State,  18  Ala.  547. 

189.  An  indictment  charging  that  the 
defendant  made  "an  assault  with  a  certain 
gun,  the  same  being  then  and  there  a  deadly 
weapon,  and  him  the  said  W.,  did  attempt 
with  the  gun  aforesaid  to  shoot,  with  intent 
(fee,  was  held  bad  in  not  averring  that  the 
gun  was  loaded,  or  otherwise  show  that  the 
defendant  had  a  present  ability  to  inflict  an 
injury.     Robinson  v.  Scate,  31  Texas,  170. 

190.  In  Indiana,  it  was  held  on  a  charge 
for  an  assault  with  intent  to  murder,  that 
the  manner  in  which  the  firearm  was  loaded, 
and  the  possibility  of  death  being  produced 
by  the  discharge,  were  matters  of  evidence, 
and  not  of  averment.  Rice  v.  State,  16  Ind. 
298.  In  Iowa,  it  has  been  held  that  the  in- 
dictment need  not  allege  that  the  gun  was 
loaded,  or  pointed,  or  discharged,  or  the 
manner  in  which  it  was  used.  State  v. 
Shepard,  10  Iowa,  126. 

191.  An  indictment  for  an  assault  with 
intent  to  murder  by  shooting,  need  not  al- 
lege that  the  person  assaulted  was  within 


the  distance  to  which  the  gun  would  carry, 
nor  that  the  gun  was  a  deadly  weapon. 
Shaw  V.  State,  18  Ala.  597. 

192.  Person  injured.  An  indictment  for  an 
assault  with  intent  to  murder,  was  as  fol- 
lows :  "  With  intent  in  so  striking  and  beat- 
ing him  the  said  J.  W.,  with  the  club  afore- 
said, in  and  upon  the  head  as  aforesaid,  then 
and  there  and  thereby  feloniously,  willfully, 
and  of  his  (the  said  J.  P.'s),  malice  afore- 
thought, to  kill  and  murder,  against,"  &c. 
Meld  bad  for  uncertainty,  in  not  naming  the 
person  the  defendant  intended  to  kill. 
State  V.  Patrick,  3  Wis.  812. 

193.  Where  an  indictment  charges  the 
defendant  in  two  diflerent  counts,  with  an 
assault  with  intent  to  murder,  upon  different 
persons,  the  court  may  quash  the  indict- 
ment, or  compel  the  prosecution  to  elect  on 
which  count  it  will  proceed.  State  v.  Fee, 
19  Wis.  563. 

194.  Averment  of  malice.  An  indictment 
for  an  assault  with  intent  to  kill,  must 
allege  that  the  act  was  done  feloniously 
with  malice  aforethought.  State  v.  Howell, 
Geo.  Decis.  pt.  1,  158.  In  Missouri,  an  in- 
dictment under  the  statute  (R.  C.  1855,  p. 
565),  which  charged  an  assault  to  have  been 
committed  unlawfully  and  feloniously,  and 
with  an  intent  to  kill,  omitting  the  words 
"  on  purpose  "  and  "  of  malice  aforethought," 
was  held  fatally  defective.  State  v.  Harris, 
34  Mo.  347.  In  Iowa,  the  indictment  need 
not  allege  that  the  assault  was  committed 
with  malice  aforethought.  State  v.  New- 
berry, 26  Iowa,  467.  In  Mississippi,  an 
indictment  under  the  statute  which  did  not 
charge  that  the  oiTens3  was  committed  with 
express  malice,  was  held  bad  on  motion  in 
arrest  of  judgment.  Anthony  v.  State,  13 
Smed.  &  Marsh.  263. 

195.  An  indictment  for  an  assault  with  a 
deadly  weapon  with  intent  to  do  bodily  in- 
jury, must  either  aver  that  there  was  no 
considerable  provocation,  or  that  the  cir- 
cumstances of  the  assault  showed  an  aban- 
doned and  malignant  heart.  Baker  v. 
People,  40  III.  308. 

196.  An  indictment  for  an  assault  with  a 
deadly  weapon  with  intent  to  kill,  charged 
that  the  defendant  at,  &c.,  "  in  and  upon  one 


ASSAULT  A¥D   BATTERY. 


51 


Assault  with  Intent  to  Kill. 


Indictment. 


Evidence. 


J.  P.  feloniously  did  make  an  assault  with 
a  deadly  weapon,  to  wit,  a  pistol  loaded 
with  powder  and  ball,  with  intent  then  and 
there  to  kill  said  J.  P.,  without  any  just 
cause  or  provocation,  but  with  an  abandoned 
and  malignant  heart."  Held  insufficient, 
there  being  no  allegation  of  premeditation 
or  malice  aforethought.  People  v.  Urias,  12 
Cal.  325. 

197.  Charging  intent.  In  Mississippi,  an 
indictment  under  the  statute  (How.  & 
Hutch.  698,  §  39),  for  an  assault  with  an 
intent  to  kill,  must  charge  that  tlie  accused 
shot  at  a  certain  person  with  intent  to  kill 
that  person  ;  charging  an  intent  to  kill  gen- 
erally, is  not  sufficient.  Jones  v.  State,  11 
Smed.  &  Marsh.  315. 

198.  An  indictment  alleged  that  the  de- 
fendant "  did  unlawfully  strike,  beat,  biuise, 
and  wound,  one  B.  with  a  knife,  with  mal- 
ice aforethought,  and  with  the  intention  to 
kill  and  murder  him,  the  said  B.,  did  then 
and  there  stab,  cut,  and  wound,  him  the 
said  B.,  with  a  large  knife  which  he  then 
and  there,  held  in  his  hand,  in  three  places, 
one  in  the  hip,  one  in  the  side,  and  one  in 
the  back,  with  the  intention  of  committing 
a  felony."  Held  that  the  indictment  did 
not  sufficiently  charge  the  intent  to  commit 
the  particular  felony,  but  that  an  assault  and 
battery  was  charged.  State  v.  Miller,  27 
Ind.  15. 

199.  Where  an  indictment  charged  in  one 
count  two  independent  felonies,  one  that 
the  prisoner  committed  the  assault  with 
*' intent  to  do  bodily  barm,"  and  the  other 
that  he  committed  it  *' with  intent  to  kill," 
each  of  which  was  in  violation  of  a  distinct 
statute,  but  omitted  to  charge  that  the  as- 
sault to  do  bodily  harm  was  "  witliout  ju>=.ti 
fiable  or  excusable  cause,"  it  was  held  that 
this  omission  saved  the  indictment  from 
being  fatally  defective  for  duplicity,  the 
charge  of  an  intent  to  do  bodily  harm,  with- 
out the  foregoing  qualification,  being  sur- 
plusage.    Dawson  v.  People,  25  N.  Y.  399. 

200.  An  indictment  against  two,  charging 
one  with  an  assault,  with  the  intent  ma- 
liciously to  kill  and  murder,  and  the  other 
with  m  iliciously  and  feloniously  getting  his 
codefendant  to   make    an  assault  with  the 


same  intent,  is  good  at  common  law.     State 
V.  Pile,  5  Ala.  72. 

201.  An  assault  with  intent  to  commit 
manslaughter  is  sufficiently  charged  as  an 
assault  with  intent  to  kill.  State  v.  John- 
son, 4  Mo.  618. 

202.  An  indictment  for  assault  and  bat- 
tery with  intent  to  kill  must  allege  that  the 
intent  was  unlawful  and  felonious.  Curtis 
V.  People,  Breese,  197;  contra,  State  v. 
Williams,  3  Foster,  321. 

203.  An  indictment  for  an  assault,  with 
intent  to  commit  murder,  charging  that  the 
offense  was  committed  feloniously,  unlaw- 
fully, and  with  malice  aforethought,  omit- 
ting the  word  "  willfully,"  is  sufficient. 
McCoy  V.  State,  3  Eng.  451. 

204.  Immaterial  averments.  An  indict- 
ment for  assault,  with  intent  to  murder 
held  good,  although  the  word  "  assault " 
was  not  used.  State  v.  Munco,  12  La.  An. 
625.  And  where  the  word  "a^sawZi"  was 
written  in  both  counts  '■'■  assatt,''''  it  was  held 
that  as  the  error  was  not  such  as  to  mislead, 
it  was  immaterial.    State  v.  Crane,4  Wis.401. 

205.  An  indictment  for  an  assault  with  a 
dangerous  weapon,  is  good,  notwithstanding 
the  omission  of  the  words  "  then  and  there," 
before  the  words  "did  strike."  Com.  v. 
Bugbee,  4  Gray,  206. 

206.  Where  an  indictment  charged  an  as- 
sault and  battery,  with  an  intent  to  murder, 
it  was  held  that  the  indictment  was  not  bad 
because  the  charge  included  a  battery.  Cole 
V.  State,  5  Eng.  -818. 

(c)  Eoidence.        * 

207.  Place.  The  identity  and  description 
of  the  place  where  an  alleged  assault  was 
committed,  being  material,  and  it  being 
proved  that  the  accused  had  undertaken  to 
pilot  the  complainant  througli  the  woods,  a 
witness  who  had  seen  the  latter,  both  be- 
fore and  after  the  commission  of  the  assault, 
the  interval  being  three  or  four  hours,  may 
be  asked,  "  if  he  examined  a  place  desig- 
nated by  the  complainant  aa  the  place  wiiere 
he  was  shot,"  the  question  being  introduc- 
tory of  another  respecting  the  marks  of  a  re- 
cent struggle  in  the  designated  place;  the 
court  instructing  the  jury,  at  the  time  the 


52 


ASSAULT   AND  BATTERY. 


Assault  with  Intent  to  Kill. 


Evidence. 


evidence  was  admitted,  "that  it  would  be 
no  evidence  that  it  was  the  place  where  the 
complainant  was  shot,  or  that  he  was  shot 
at  all."     Magee  v.  State,  S2  Ala.  575. 

208.  Person  injured.  An  indictment 
charged  a  shooting  with  intent  to  kill  and 
murder  one  M.  It  was  proved  that  the  ac- 
cused shot  at,  and  intended  to  kill,  C,  but 
missed  him  and  shot  M.  Eelcl,  that  the  va- 
riance was  fatal.  Barcus  v.  State,  49  Miss. 
17. 

209.  Weapon.  Where  an  indictment 
charges  an  assault  with  a  iasket  Jcnife,  with 
intent  to  kill,  and  the  evidence  shows  that 
the  instrument  used  was  a  basket  iron,  the 
indictment  will  be  sustained.  State  v. 
Dame,  11  New  Hamp.  371. 

210.  Intent.  The  intent  cannot  be  im- 
plied, but  must  be  proved  as  a  fact.  State 
V.  Beaver,  5  Harring.  508 ;  and  proof  of  the 
intent  must  be  as  of  the  time  of  committing 
the  act.  People  v.  Kerrains,  1  N.  Y.  Supm. 
N.  S.  333.  It  is  not  suiiicient  to  prove  a 
general  felonious  intent,  or  any  other  than 
the  particular  intent  alleged  in  the  indict- 
ment; and  the  burden  of  proving  the  al- 
leged intent,  as  Well  as  the  other  facts  which 
constitute  the  offense,  is  on  the  prosecution. 
Ogletree  v.  State,  28  Ala.  693.  But  where 
the  evidence  shows  that  it  would  have  been 
murder  if  death  had  ensued,  that  in  itself 
will  be  sufficient  ground  for  the  jury  to  infer 
the  existence  of  the  intention  to  murder. 
Cole  V.  State,  5  Eng.  318. 

211.  On  the  trial  of  an  indictment  for  an 
assault,  with  intent  to  murder  E.,  the  proof 
conduced  to  show  that  the  accused  fired  a 
gun  in  the  direction  of  W.  and  E.,  and  of  a 
dog  near  them;  but  there  was  some  doubt 
whether  the  intent  was  to  kill  or  wound  the 
dojr,  or  these  men,  or  one  of  them.  The 
following  charge  of  the  court  was  held  er- 
roneous: That  if  a  loaded  gun  was  present- 
ed within  shooting  range  at  W.  or  E.,  or  at 
the  dog^  under  circumstances  not  justified  by 
law,  and  showing  an  abandoned  and  malig- 
nant heart,  and  the  gun  was  fired  off,  and  in- 
flicted a  dangerous  wound  upon  E.,  an  as- 
sault with  a  deadly  weapon,  with  intent  to 
inflict  bodily  injury  upon  E.,  had  been 
proved.     People  v.  Keefer,  18  Cal.  636. 


212.  In  New  York,  an  indictment  under 
the  Revised  Statutes,  charging  one  with  an 
assault  and  battery  with  a  deadly  weapon 
with  intent  to  kill,  is  sustained  by  proof  of 
having  committed  the  offense  with  intent 
to  commit  any  felonious  homicide.  People 
v.  Shaw,  1  Parker,  327. 

213.  Where  the  prisoner  was  charged  with, 
an  assault  with  intent  to  kill,  it  was  held 
that  evidence  of  experts  as  to  the  location^ 
character,  and  probable  consequences  of  the 
wound,  was  proper  as  bearing  upon  the 
question  of  intent.  People  v.  Kerrains,  1 
N.  Y.  Supm.  N.  S.  333. 

214.  On  the  trial  of  an  indictment  for  an 
assault  with  a  deadly  weapon  with  intent  tO' 
kill,  a  surgeon  was  asked  whether  a  wound 
on  the  chest  endangered  life.  Held  proper, 
the  infliction  of  a  dangerous  wound  being 
more  indicative  of  an  intent  to  kill  than  one 
of  a  slighter  character.  Rumsey  v.  People, 
19  N.  Y.  41. 

215.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  murder,  it  was  proved 
that  the  defendant  went  to  the  house  of  the 
prosecutrix,  and  after  threatening  to  kill 
her,  seized  a  hatchet  and  started  toward  her 
with  it  raised  in  a  threatening  attitude;  that 
she  fled  to  an  adjoining  room,  and  thence  to 
a  butcher's  shop,  a  few  rods  distant;  and 
that  the  defendant,  after  waiting  a  few 
minutes,  followed  her  to  the  latter  place. 
Held  that  what  occurred  in  the  butcher's 
shop,  between  the  prosecutrix  and  the  de- 
fendant, was  admissible  on  the  question  of 
intent.     People  v.  Yslas,  27  Cal.  630. 

216.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  kill,  the  intent  is  a 
question  of  fact  for  the  jury.  It  is,  there- 
fore, error  in  the  court  to  charge  that  ' '  the 
law  presumes  that  every  man  intends  the 
natural,  necessary,  and  probable  conse- 
quences of  his  acts."  State  v.  Stewart,  29 
Mo.  419.  And  see  Crocker  v.  State,  47  Ga. 
5G8.  Whether  an  assault  by  lying  in  wait  is 
deliberate,  is  not  a  conclusion  of  law,  but  a 
question  of  fact.  Floyd  v.  State,  3  Heisk. 
343 ;  3.  c.  1  Green's  Crim.  Reps.  757. 

217.  Intoxication  may  render  a  party  in- 
capable of  forming  or  entertaining  the  in- 


ASSAULT  AND   BATTERY. 


53 


Assault  with  Intent  to  Kill. 


Evidence. 


Jtention  of  committing  an  assault  with  intent 
to  murder.     Mooney  v.  State,  33  Ala.  419. 

218.  Character  of  assault.  To  sustain  a 
conviction,  the  proof  must  be  such  that  if 
death  had  ensued,  it  would  have  been  mur- 
der. Elliott  V.  State,  46  Ga.  159 ;  Jackson 
V.  State,  51  lb.  402;  Meeks  v.  State,  lb.  429; 
Smith  V.  State,  52  lb.  88 ;  Eead  v.  Com.  23 
Gratt.  924;  State  v.  Neal,  37  Maine,  468; 
McCoy  V.  State,  3  Eng.  451 ;  Cole  v.  State, 
6  lb.  318. 

219.  But  the  court  is  not  bound  to  charge 
the  jury  at  the  defendant's  request,  "  that 
they  cannot  find  the  defendant  guilty  of  an 
assault  with  intent  to  murder,  unless  they 
are  satisfied  from  the  evidence,  beyond  a 
reasonable  doubt,  that,  if  death  had  ensued 
from  the  assault,  he  would  have  been  guilty 
of  murder  in  the  first  degree."  Ogletree  v. 
.fitate,  28  Ala.  693 ;  Slatter  v.  People,  58  K 
Y.  354. 

220.  In  Minnesota,  where  on  the  trial  of  an 
indictment  for  an  assault  with  intent  to  mur- 
der, the  judge,  after  charging  the  jury  as  to 
the  general  common-law  definition  of  mur- 
der, instructed  them,  that,  in  order  to  re- 
turn a  verdict  of  guilty,  they  must  find  that 
if  the  assault  had  resulted  in  death,  the  kill- 
ing would  have  been  murder  under  the 
general  definition.  Held  erroneous,  for  the 
reason  that  such  general  definition  compre- 
hended both  the  lesser  degrees  of  murder 
under  the  statute,  and  manslaughter.  Bon- 
fanti  V.  State,  2  Minn.  123. 

221.  It  is  erroneous  to  charge  the  jury,  on 
a  trial  for  an  assault  with  intent  to  murder, 
that  proof  which  would  make  the  offense 
murder  if  death  had  ensued,  would  be  suffi- 
cient evidence  of  the  intention,  since,  by  the 
common  law,  a  killing  may  amount  to  mur- 
der, though  the  party  committing  the  offense 
did  not  intend  to  kill.  Moore  v.  State,  18 
Ala.  532. 

222.  On  a  trial  for  assault  with  intent  to 
.'murder,  it  was  proved  that  the  accused  pre- 
/  sented  a  loaded  gun,  and  attempted  three 

times  to  fire  it,  but  that  there  was  no  cap  on 
it.  A  charge  that  the  absence  of  the  cap 
would  not  avail  the  defendant  if  lie  sup- 
posed it  was  on  the  gun,  and  that  the  jury 
must  be  satisfied  beyond  a  reasonable  doubt 


that  he  did  not  know  there  was  no  cap  on 
it,  is  correct.     Mullen  v.  State,  45  Ala.  66. 

223.  On  the  trial  of  an  indictment  for  an 
assault  with  a  deadly  weapon  with  intent  to 
inflict  bodily  harm,  it  appeared  that  the 
prisoner  threatened  to  shoot  the  prosecutor 
if  he  did  not  leave  certain  land  in  dispute 
between  the  parties,  at  the  same  time  draw- 
ing a  revolver  which  he  held  in  a  line  with 
the  body  of  the  prosecutor,  but  with  the 
pistol  so  pointed  that  the  ball  would  have 
struck  the  ground  before  it  reached  the 
latter  if  it  had  been  discharged.  Held  that  a 
conviction  was  proper.  People  v.  McMakin, 
8  Cal.  547.  See  People  v.  Ilonshell,  10 
Cal.  83. 

224.  Malice.  On  a  trial  for  an  assault 
with  intent  to  kill,  it  is  competent  to  prove 
that  the  defendant,  who  was  in  the  employ 
of  the  complainant,  was  maliciously  and  re- 
vengefully disposed  toward  him,  and  that 
the  defendant  purposely  did  his  work  badly 
so  as  to  injure  the  complainant.  Peojjle  v. 
Kerrains,  1  N.  Y.  Supm.  N.  S.  333. 

225.  On  a  trial  for  an  assault  with  intent 
to  murder,  the  State,  in  order  to  show 
malice,  may  prove  the  fact  of  a  previous  diffi- 
culty between  the  accused  and  the  person 
assaulted,  but  not  the  particulars  of  such 
difficulty.     Tarver  v.  State,  43  Ala.  354. 

226.  An  indictment  for  an  assault  with  in- 
tent to  murder,  charging  that  the  assault 
was  committed  with  malice  aforethought, 
will  be  sustained  by  proof  that  the  assault 
was  made  without  premeditation  or  malice 
aforethought,  but  willfully  and  maliciously, 
with  the  intent  charged.  Sharp  v.  State,  19 
Ohio,  379  ;  State  v.  Parmelee,  9  Conn.  259. 

227.  On  the  trial  of  an  indictment  for  as- 
saulting an  officer  with  intent  to  murder 
him,  while  engaged  in  arresting  M.,  the  de- 
fense proved  that  M.  had  given  himself  up, 
and  that  the  officer  immediately  called  in 
otlier  persons,  some  of  whom  were  armed, 
and  upon  M.'s  taking  up  his  knife,  but  not 
making  any  hostile  demonstration  with  it, 
the  officer  struck  him  several  times  on  the 
head  with  a  club,  and  that  thereupon,  the 
defendant  shot  the  officer.  Ueld  that  it  was 
for  the  jury  to  determine  how  far  the  rush- 
ing in  of  an  armed  crowd,  and  a  violent  at- 


54 


ASSAULT  AND  BATTERY. 


Assault  with  Intent  to  Kill. 


Evidence. 


tack  with  a  deadly  weapon  upon  M.  aflfected 
the  question  of  malice  on  the  part  of  the 
defendant.     Jackson  v.  State,  51  Ga.  402. 

228.  Declarations  of  party  assaulted. 
On  the  trial  of  an  indictment  for  an  assault 
with  intent  to  murder,  declarations  of  the 
party  assaulted,  made  immediately  after  the 
encounter,  are  admissible  as  a  part  of  the 
res  ge)it(B  to  show  the  impression  on  his  mind 
at  the  time  as  to  the  nature  of  the  attack 
made  on  him  by  the  accused.  Monday  v. 
State,  32  Ga.  672.  But  threats  made  by  the 
party  assaulted  to  a  third  person  against  the 
defendant,  previous  to  the  assault,  are  not 
admissible  in  evidence  in  the  defendant's  be- 
half, when  it  does  not  appear  at  what  time 
they  were  communicated  to  him.  State  v. 
Jackson,  17  Mo.  544. 

229.  Declarations  of  defendant.  On  the 
trial  of  an  indictment  for  an  assault  with  in- 
tent to  murder,  the  declarations  of  the  de- 
fendant the  next  day  after  the  occurrence, 
manifesting  animosity  toward  the  person  at- 
tacked, are  admissible  on  the  question  of 
malice.     Meeks  v.  State,  51  Ga.  429. 

230.  On  the  trial  of  an  indictment  for  an 
assault  and  battery  with  intent  to  murder, 
the  prosecution  were  permitted  to  prove  that 
the  defendant  said  a  short  time  before  he 
committed  the  assault,  that  he  expected  to 
kill  some  one  before  he  left  town.  Read  v. 
State,  2  Carter,  438. 

231.  But  on  the  trial  of  an  indictment  for 
an  assault  on  A.  with  intent  to  murder,  the 
defendant's  threats,  made  several  hours 
"  previous  to  the  fight,"  that  he  would  kill 
B.,  are  not  admissible  against  him.  Ogletree 
V.  State,  28  Ala.  693. 

232.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  murder,  the  assault 
having  in  fact  been  made  by  a  mob,  and  not 
by  the  defendant,  if  he  is  sought  to  be  con- 
victed by  proof  tliat  he  encouraged,  aided 
and  abetted  the  mob  to  commit  the  assault 
by  words  uttered  by  him,  it  must  be  proved 
that  they  were  addressed  to,  or  at  least 
heard  by  the  persons  or  some  of  them  com- 
posing the  mob.  Cabbell  v.  State,  46  Ala. 
195. 

233.  Where  on  a  trial  for  an  assault  with 
intent  to  murder,  the  prosecution  prove  that 


the  defendant  seized  a  deadly  weapon,  the 
defendant  has  a  right  to  elicit  on  cross-ex- 
amination what  was  said  by  the  defendant 
when  he  took  the  weapon.  Taliaferro  v. 
State,  40  Texas,  522. 

234.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  murder,  the  statement 
of  the  prisoner  after  he  had  been  arrested 
and  gone  150  yards  toward  the  guard  house 
is  not  admissible  in  his  favor  as  a  part  of  the 
res  gestae.     Hall  v.  State,  48  Ga.  607. 

235.  Declarations  of  codefendant.  When 
three  jointly  indicted  for  an  assault  with 
intent  to  murder  are  tried  separately,  a 
letter  written  by  one  of  them  to  the  prose- 
cutor before  the  commission  of  the  assault, 
which  shows  malice  and  ill  will  on  the  part 
of  the  writer  towards  the  prosecutor,  cannot 
be  given  in  evidence  against  another,  who 
though  particeps  criminis  in  the  assault,  is 
not  shown  to  have  had  anything  to  do  with 
the  writing  of  the  letter,  nor  to  have  partici- 
pated in  his  ill  will  towards  the  prosecutor. 
Stewart  v.  State,  26  Ala.  44. 

236.  If,  however,  the  defendants  had 
entered  into  a  conspiracy  to  kill  the  prose- 
cutor, and  the  letter  was  'written  subse- 
quently by  one  to  advance  the  common  de- 
sign, it  would  be  evidence  against  all.     lb. 

237.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  commit  murder,  there 
was  some  evidence  tending  to  show  that  the 
defendant  was  assaulted  by  the  party  in- 
jured and  several  other  persons.  Held  that 
what  was  said  by  these  persons  at  the  time 
of  the  assault,  illustrative  of  its  object  and 
the  motive  which  prompted  it,  being  a  part 
of  the  res  gestae,  was  admissible  in  evidence. 
People  V.  Roach,  17  Cal.  297.  But  see  Max- 
well v.  State,  3  Heisk.  420 ;  s.  c.  1  Green's 
Grim.  Reps.  696. 

238.  On  the  trial  of  an  indictment  for  an 
assault  and  battery  with  intent  to  murder, 
there  was  evidence  of  a  conspiracy  between 
the  defendant  and  B.  to  commit  offenses  of 
force  and  violence,  and  that  the  assault  and 
battery  was  committed  by  B.  while  the  de- 
fendant was  present  aiding  and  abeiting 
him.  Held  that  the  previous  declarations 
of  B.  as  to  the  intentions  of  himself  and  the 
defendant,  which  resulted  in  the  assault  and 


ASSAULT   AND   BATTERY. 


55 


Assault  with  Intent  to  Kill. 


Evidence. 


battery  in  question,  were  admissible  in  evi- 
dence.    Williams  v.  State,  47  Ind.  568. 

239.  Presumptions.  On  the  trial  of  an  in- 
dictment  for  assaulting  and  stabbing  another 
with  a  knife,  evidence  that  the  defendant 
was  possessed  of  a  knife,  and  its  character 
and  condition,  is  admissible  as  tending  to 
show  that  the  injury  was  inflicted  with  a 
knife.     Com.  v.  Roach,  108  Mass.  289. 

240.  On  the  trial  of  an  indictment  for  an 
assault  with  a  deadly  weapon  with  intent  to 
murder,  a  witness  for  the  prosecution  may 
be  asked  on  cross-examination,  whether  at 
the  time  of  the  occurrence  he  was  not  ex- 
cited from  anger,  and  whether  he  did  not 
have  a  fight  immediately  previous.  Hoffler 
V.  State,  16  Ark.  534. 

241.  On  a  trial  for  an  assault  with  intent 
to  murder,  a  charge  which  selects  a  portion 
only  of  the  facts  disclosed  by  the  testimony, 
and  instructs  the  jury  that  if  these  facts  are 
proved,  "the  law  presumes  that  the  act  was 
malicious,"  and  that  the  defendant  "in- 
tended to  kill,"  is  erroneous,  nor  is  the  error 
cured  by  further  instructing  them  in  a  sub- 
sequent part  of  the  charge  that  these  pre- 
sumptions of  law  only  arise  in  the  absence 
of  evidence  tending  to  qualify  or  explain 
the  selected  facts ;  and  if,  upon  the  whole 
evidence,  they  entertain  a  reasonable  doubt, 
they  should  acquit  the  defendant.  Ogletree 
V.  State,  28  Ala.  693. 

242.  In  Delaware,  on  the  trial  of  an  in- 
dictment for  an  assault  with  intent  to  kill, 
under  the  statute,  the  intent  cannot  be  pre- 
sumed from  the  act,  as  malice  is,  but  must 
be  proved.  State  v.  Negro  Bill,  3  Harring. 
571. 

243.  Circumstances  leading  to  assault. 
The  circumstances  which  in  fact  led  to  the 
assault  are  a  part  of  the  res  gestae  which  the 
jury  are  entitled  to  have  before  them  to  show 
what  was  the  ?eal  nature  of  the  act.  It  is 
therefore  competent  for  the  defense  to  prove 
that  the  person  a.^saulted,  the  night  before, 
attempted  the  violation  of  the  defendant's 
wife.     Biggs  v.  State,  29  Ga.  723. 

244.  On  the  trial  df  an  indictment  for  an 
assault  on  H.  with  iutent  to  murder,  evi- 
dence was  held  admissible  which  tended  to 
show  the  commission  of  adultery  with  the 


prisoner's  wife  half  an  hour  before  the  as- 
sault ;  that  the  prisoner  saw  them  going  to 
the  woods  together;  that  he  followed  them, 
and  was  told  on  the  way  by  a  friend  that 
they  had  committed  adultery  the  day  before 
in  the  woods ;  that  H.  and  the  prisoner's  wife 
were  seen  not  long  after  coming  from  the 
woods,  knd  that  the  prisoner  pursued  H.  to 
a  saloon,  where  the  assault  was  committed. 
Maherv.  People,  10  Mich.  212. 

245.  Charging  the  jury  that  they  must  find 
A.,  the  defendant,  guilty  if  they  believe  that 
he  committed  the  assault  with  intent  to  take 
life,  is  error,  because  it  takes  from  the  jury 
all  consideration  of  provocation  or  self-de- 
fense.    State  V.  Williamson,  16  Mo.  394, 

246.  Affront.  No  affront  by  mere  words 
or  gestures  is  a  sufficient  provocation  to  ex- 
cuse or  extenuate  such  acts  of  violence  as 
manifestly  endanger  the  life  of  another. 
State  V.  Fuentes,  5  La.  An.  427. 

247.  Where  defendant  was  the  aggres- 
sor. When  on  a  trial  for  an  assault  with 
intent  to  murder,  it  is  proved  that  the  de- 
fendant was  the  aggressor,  he  cannot  miti- 
gate the  offense  by  showing  that  it  was  com- 
mitted under  the  influence  of  sudden  passion 
caused  by  injuries  inflicted  by  his  adversary- 
Crane  V.  State,  41  Texas,  494;  nor  that  his 
adversary  had  armed  himself  for  a  voluntary 
fight,  it  appearing  that  the  defendant  after 
arming  himself  sought  to  renew  the  combat. 
Murray  v.  State,  36  lb.  42;  s.  c.  1  Green's 
Crim.  Reps.  654. 

248.  If  a  father  make  a  felonious  assault 
upon  another,  and  his  son  afterward  aid  his 
father  in  the  assault,  on  the  trial  of  an  in- 
dictment against  the  son  for  an  assault  with 
intent  to  murder,  the  jury  cannot  consider 
his  relation  to  his  father,  nor  the  circum- 
stances of  peril  in  Avhich  his  father  was 
placed.     Sharp  v.  State,  19  Ohio,  379.  • 

249.  Defense  of  property.  An  assault 
with  intent  to  murder  cannot  be  excused 
on  the  ground  that  it  was  in  defense  of 
property.     State  v.  Morgan,  3  Ired.  186. 

250.  On  the  trial  of  an  indictment  for  an 
assault  upon  D.  with  a  deadly  weapon,  with 
intent  to  inflict  upon  him  bodily  injury,  it 
is  no  justification  that  the  defendant,  while 
he   was   in   possession  of  and  working   his 


56 


ASSAULT  AND   BATTERY. 


Assault  with  Intent  to  Kill. 


Evidence. 


Verdict. 


mining  claim,  shot  D.  because  he  had  shut 
off  the  supply  of  water  in  the  gulch,  to 
which  the  defendant  was  entitled.  Terr,  of 
Mont.  V.  Drennan,  1  Mont.  41 ;  s.  c.  1  Green's 
Crim.  Reps.  553. 

251.  Exercise  of  legal  right.  The 
simple  exercise  of  a  legal  right,  no  matter 
how  ofi^nsive  to  another,  is  never  in  law 
deemed  a  sufficient  provocation  to  justify  or 
mitigate  an  act  of  violen.ce ;  and  for  a  provo- 
cation to  have  that  effect,  the  act  must  be 
the  immediate  result  of,  and  follow  the 
provocation.     State  v.  Lawry,  4  Nev.  161. 

252.  U])on  the  trial  of  an  indictment  for 
an  assault  upon  one  S.  with  a  deadly  weapon, 
with  intent  to  kill,  it  was  proved  that  it 
was  verbally  agreed  between  S.  and  the 
defendant,  that  the  former  should  pay  the 
latter  thirteen  shillings  a  day  for  his  services, 
steady  work,  and  give  him  the  use  of  a 
house  to  live  in  throughout  the  year,  or 
while  they  should  agree.  Held  that  the 
relation  was  that  of  master  and  servant; 
that  S.  had  the  right  of  possession  of  the 
house,  and  the  right  to  remove  the  defendant 
with  his  effects  therefrom,  and  to  employ 
all  the  force  necessary  for  that  purpose,  and 
that  the  defendant's  resistance  to  such  re- 
moval was  unlawful.  People  v.  Ken-ains,  1 
N.  Y.  Supm.  N.  S.  333. 

253.  Antecedent  grudge.  Mere  threats 
made  will  not  excuse  a  deadly  assault,  when 
the  party  assailed  had  made  no  attempt  or 
demonstration  of  a  hostile  or  equivocal  char- 
acter.    People  V.  Wright,  45  Cal.  260. 

254.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  murder,  evidence  is 
admissible  of  threats  made  by  the  person 
assaulted,  to  drive  the  defendant  from  the 
place,  or  take  his  life  ;  and  whether  the 
threats  were  such  as  to  excite  the  fears  of  a 
reasonable  man,  and  to  induce  the  defendant 
to  apprehend  violence  to  his  person,  so  as  to 
justify  an  attack  upon  the  party  making 
them,  is  a  question  for  the  jury,  and  if  not 
a  justification,  may,  in  their  judgment,  rebut 
the  presumption  of  malice.  Howell  v.  State, 
5  Ga.  48. 

255.  Previous  assault.  A  prior  assault 
on  the  prisoner,  by  the  person  whom  he  is 
alleged   to  have   assaulted   with   intent   to 


murder,  is  not  necessarily  a  defense,  since 
the  injury  inflicted  by  the  prisoner  may  not 
have  been  justified  by  the  necessity  of  the 
case,  nor  proportioned  to  the  injury  inflicted 
on  him.     Mooney  v.  State,  33  Ala.  419. 

256.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  murder,  the  defendant's 
counsel  proposed  to  prove  a  fight  between 
the  parties  two  years  previous,  and  stated 
that  he  expected  to  connect  the  two  fights 
by  repeated  and  continuous  acts  of  violence 
on  the  part  of  the  complainant,  down  to  the 
time  of  the  offense  charged.  Ileld  proper 
to  begin  with  the  proof  at  the  last  fight, 
and  go  back  to  the  first.  Hatcher  v.  State, 
18  Ga.  460. 

257.  Mutual  combat.  On  the  trial  of  an 
indictment  for  stabbing,  it  was  proved  that 
the  prosecutor  and  defendant  agreed  to 
fight;  and  that  the  prosecutor  being  un- 
armed, the  defendant  commenced  from  the 
first  to  use  a  knife.  Held  that  this  was  not 
self-defense.     McAfee  v.  State,  31  Ga.  411. 

258.  Where  on  the  trial  of  an  indictment 
against  F.  for  stabbing  W.,  which  occurred 
immediately  after  the  latter  had  struck  the 
former  with  his  fist,  it  did  not  appear  that 
there  was  great  superiority  in  physical 
strength  on  the  part  of  W. ,  nor  that  F.  was 
in  ill  health,  nor  other  circumstance  which 
produced  great  inequality  between  them 
for  sudden  combat,  it  was  held  that  F.  was 
properly  con\acted.  Floyd  v.  State,  36  Ga. 
91. 

259.  Wife  as  witness.  On  the  trial  of 
the  husband  for  assault  and  battery  upon 
the  wife  with  intent  to  kill  her,  the  prosecu- 
tion will  not  be  compelled  to  call  her  as  a 
witness.  In  such  case,  the  wife  is  a  com- 
petent witness  for  her  husband,  and  may  be 
called  on  his  behalf.  People  v.  Fitzpatrick, 
5  Parker,  26. 

{d)  Verdict.   * 

260.  Form.  On  an  indictment  for  assault 
and  battery  with  intent  to  kill,  the  verdict 
should  be,  that  "  the  prisoner  is  guilty  of  the 
assault  and  battery  with  a  deadly  weapon 
with  intent  to  kill ;  "  or,  "  by  such  force  as 
was  likely  to  produce  death,  with  intent  to 
kill;"    or,    "guilty  of  assault  and  battery 


ASSAULT  AND   BATTERY. 


57 


Assault  with  Intent  to  Kill. 


Verdict. 


with  intent  to  kill,  as  charged  in  the  indict- 
ment." People  V.  Davis,  4  Parker,  61 ; 
O'Leary  v.  People,  lb.  187. 

261.  If  a  person  designedly  fire  a  pistol  in 
the  direction  of  two,  and  so  near  that  it 
■would  probably  do  them  some  great  bodily 
harm,  and  with  such  an  intent,  or  regardless 
which  it  might  kill,  he  may  be  found  guilty 
of  the  same  intent  as  to  both.  Com,  v.  Mc- 
Laughlin, 12  Cush.  615. 

262.  In  Alabama,  where  a  person  is  in- 
dicted for  an  assault  with  intent  to  kill  and 
murder,  and  the  jury  find  him  guilty  of  an 
assault  with  intent  to  kill,  it  is  equivalent  to 
a  verdict  of  guilty  of  a  simple  assault,  or  as- 
sault and  battery.  State  v.  Burns,  8  Ala. 
313. 

263.  It  is  erroneous  to  charge  the  jury  that 
they  may  find  the  defendant  guilty  of  "an 
attempt  to  commit  an  assault  with  intent  to 
commit  murder ; "  no  such  offense  being 
known  to  the  law.  White  v.  State,  22  Texas, 
C08. 

264.  Vaxiant  from  charge.  The  indict- 
ment charged  the  defendant  with  having 
made  an  assault  with  a  dangerous  weapon 
upon  one  A.  with  intent  to  kill  and  murder. 
The  jury  rendered  the  following  verdict: 
"  The  defendant  D.  S.  is  guilty  of  behig 
accessory  before  the  fact  of  an  assault  with 
intent  to  kill  A."  Held  that  the  judgment 
must  be  arrested.  State  v.  Scannell,  39 
Maine,  68. 

265.  On  a  trial  for  an  assault  with  intent 
to  murder,  a  special  verdict  which  finds  the 
defendant  guilty  of  striking  with  a  loaded 
whip,  calculated  to  produce  death,  without 
cause  or  provocation,  does  not  justify  the 
court  in  rendering  judgment  of  guilty  in 
manner  and  form  as  charged.  Scitz  v. 
State,  23  Ala.  42. 

266.  Under  an  indictment  for  an  assault 
with  intent  to  kill  and  murder,  if  the 
offense  when  completed  would  have  been 
manslaughter,  the  prisoner  may  be  convicted 
of  an  assault  with  intent  to  kill,  or  of  an 
assault.  State  v.  Butman.  42  New  Eamp. 
490. 

267.  In  Maine,  the  statute  makes  an  as- 
sault with  intent  to  murder  and  an  assault 
with  intent  to  kill,  distinct  offenses.     The 


former  necessarily  includes  the  latter,  and  a 
person  charged  with  the  greater  offense  may 
be  found  guilty  of  the  lesser.  State  v. 
Waters,  39  Maine,  54.  The  first  two  counts 
of  an  indictment  charged  an  assault  with  in- 
tent to  murder,  and  the  last  two,  an  assault 
with  intent  to  kill.  Held  that  it  was  com- 
petent for  the  jury  to  find  the  prisoner  guilty 
of  an  assault  simply,  or  of  an  assault  with 
intent  to  kill,  or  of  an  assault  with  intent  to 
murder.     State  v.  Phinney,  42  Maine,  384. 

268.  In  Connecticut,  where  the  indictment 
charged  an  assault  with  intent  to  murder, 
and  the  jury  found  a  verdict  of  guilty  of  an 
assault  with  intent  to  kill,  without  malice 
aforethought,  it  was  held  to  be  a  good  find- 
ing.     State  V.  Nichols,  8  Conn.  496. 

269.  Under  an  indictment  for  an  assault 
with  intent  to  murder,  the  defendant  may 
be  convicted  of  a  simple  assault,  or  of  as- 
sault and  battery.  State  v.  Coy,  2  Aiken, 
181;  Gardenheir  v.  State,  6  Texas,  348; 
Clark  V.  State,  13  Ga.  350 ;  State  v.  Ken- 
nedy, 7  Blackf.  233;  State  v.  Bowling,  10 
Humph.  52;  Stewart  v.  State,  5  Ohio,  241; 
Tuberville  v.  State,  40  Ala.  715 ;  Dixon  v. 
State,  3  Iowa,  416;  State  v.  Shepard,  10  lb. 
126;  Foley  V.  State,  9  lb.  363;  State  v.  Sted- 
man,  7  Porter,  495 ;  Cameron  v.  State,  8  Eng. 
712.  But  see  Wright  v.  State,  5  Iowa,  527. 
Contra,  in  Florida  and  Arkansas,  Ludowick 
V.  State,  9  Fla.  404;  Sweeden  v.  State,  19 
Ark.  205. 

270.  Under  an  indictment  for  an  assault 
with  intent  to  murder,  the  jury  cannot  find 
the  defendant  guilty  of  an  assault  with  in- 
tent to  commit  bodily  injury.  Carpenter  v. 
People,  4  Scam.  197.  But  in  Kentucky, 
under  an  indictment  for  shooting  with  in- 
tent to  kill  and  murder,  the  defendant  may 
be  found  guilty  of  shooting  with  intent  to 
wound.     Robinson  v.  Com.  16  B.  Mon.  609. 

271.  On  one  of  two  counts.  After  the 
trial  of  an  indictment  for  an  assault  with 
intent  ta  murder  which  contained  two 
counts,  the  judgment  entry  recited  that  the 
State  moved  that  the  defendant  be  tried  on 
the  first  count,  and  that  the  second  count  be 
postponed  until  the  first  was  disposed  of; 
to  which  there  was  no  dissent  by  the  defend- 
ant.     That  the  jury  found  the  defendant 


58 


ATTORNEY. 


Assault  with  Intent  to  Kill. 


guilty  as  charged  in  the  indictment,  and  the 
solicitor  afterward  entered  a  nolle  prosequi 
to  the  second  count.  Held  1.  That  the  post- 
poning of  the  second  count  until  the  first 
'  was  disposed  of  was  error.  2.  That  the  de- 
fendant was  not  precluded  from  taking  ad- 
vantage of  the  error  by  the  recital  in  the 
judgment  entry  that  he  did  not  object.  3. 
That  if  the  defendant  had  consented  to  go 
to  trial  on  one  count  only,  yet  the  verdict 
being  genei-al,  it  would  have  been  erroneous. 
Flanagan  v.  State,  19  Ala.  54G. 

272.  Amendment.  On  a  trial  for  an 
assault  with  intent  to  murder,  the  jury  found 
the  defendant  guilty  of  assault  and  battery 
without  the  felonious  intent.  Held  that 
the  verdict  might  be  amended  during  the 
sitting  of  the  court,  by  striking  out  the 
words  "and  battery."  Com.  v.  Lang,  10 
Gray,  11. 

See  Afpkat.  Foi'  assault  with  intent  to 
commit  rape,  see  Rape. 


^ttovnci). 


1.  Right  to  visit  jail.  Counsel  have  the 
right,  at  all  reasonable  hours  of  the  day,  to 
visit  a  jail  in  order  to  advise  with  their 
clients;  and  if  denied  admission,  they  are 
not  obliged  to  resort  to  an  action  of  trespass, 
but  may  obtain  redress  by  summary  process. 
Matter  of  Sheriff  and  Jailer  of  N.  Y.  1 
Wheeler's  Crim.  Cas.  303. 

2.  Designation  by  court.  The  power  to 
appoint  a  counselor  of  the  court  to  assist  a 
prosecuting  officer  in  the  trial,  is  an  in- 
cidental power  of  the  court,  and  the  fact 
that  such  person  expects  compensation  will 
not  deprive  the  court  of  its  power  to  appoint 
him.     State  v.  Bartlett,  55  Maine,  200. 

3.  On  the  trial  of  an  indictment  for  rape, 
the  defendant  objected  to  F.,  an  attorney 
assisting  in  the  prosecution,  and  filed  his 
affidavit  stating  in  substance,  that  he  had 
employed  F.  to  defend  him,  executed  to  F. 
his  notes  for  $250,  and  disclosed  to  him  the 
facts  in  the  case,  and  the  evidence  for  his 
defense.  Held  that  the  permitting  F.  to 
take  part  in  the  prosecution,  was  error. 
Wilson  V.  State,  16  Ind.  392. 

4.  The  fact  that  the  trial  was  conducted 


without  the  aid  of  any  prosecuting  attorney, 
or  by  one  who,  with  the  assent  of  the  court, 
^cted  as  such  without  competent  authority, 
is  not  ground  for  a  new  trial.  Tesh  v.  Com. 
4  Dana,  522. 

5.  Buying  claim.  The  purchasing  of 
debts  by  attorneys,  with  intent  to  bring  suits 
upon  them  in  justices'  courts,  is  not  pro- 
hibited by  the  statute  of  New  York  (3  R.  S. 
5th  ed.  §  58),  which  provides  that  no  at- 
torney, counselor,  or  solicitor,  shall  buy  any 
bond,  bill,  promissory  note,  bill  of  exchange, 
&c.,  for  the  purpose  of  bringing  any  suit 
thereon.     Goodell  v.  People,  5  Parker,  206. 

6.  Removal.  The  official  misconduct  of 
an  attorney  at  law,  may  be  inquired  into  in 
a  summary  manner  by  the  court,  and  if 
guilty,  his  name  may  be  stricken  from  the 
roll  of  attorneys.  Rice  v.  Cora.  18  B.  Mon. 
472;  Turner  v.  Com.  2  Mete.  Ky.  619; 
Walker  v.  Com.  8  Bush,  676.  Or  the  pro- 
ceeding may  be  by  information.  Baker  v. 
Com.  10  lb.  592. 

7.  The  fact  that  the  counsel  of  a  prisoner 
has  projected  his  escape,  is  ground  for  the 
removal  of  the  counsel  as  a  member  of  the 
bar.  Matter  of  Sheriff  and  Jailer  of  N.  Y. 
1  Wheeler's  Cr,  Cas.  303. 

8.  The  power  to  disbar  an  attorney  is 
possessed  by  all  courts  which  have  authority 
to  admit  attorneys  to  practice.  It  can  only 
be  exercised  when  there  has  been  such  mis- 
conduct on  the  part  of  the  attorney  as  shows 
him  to  be  an  unfit  member  of  the  profession. 
Before  a  judgment  disbarring  an  attorney 
is  rendered,  he  should  have  notice  of  the 
grounds  of  complaint  against  him,  and  op- 
portunity of  explanation  and  defense.  Man- 
damus is  the  proper  remedy  to  restore  an 
attorney  disbarred,  where  the  court  below 
has  exceeded  its  jurisdiction.  EJx  parte 
Robinson,  19  Wallace,  505,  per  Field,  J.; 
s.  c.  2  Green's  Crim.  Reps.  135. 

As   to  privileged  communications  ietween 
attorney  and  client,  see  Evidence. 


Autrefois    Acquit,    anh 
^utrcfob  Couuict. 

See  FoEMER  acquittal   or  conviction. 


BAIL  AND  KECOGNIZANCE. 


59 


Authority  to  admit  to  Bail,  or  to  compel  a  Recognizance. 


Sail  ani  Kccogmjancc, 

1.  Authority  to  admit    to    bail,  ou    to 

compel  a  recognizanre. 

2.  Bail   when   in   general   refused  or 

ALLOWED. 

3.  Proof  required  to  admit  to  bail. 

4.  Form    and    requisites     of    recogni- 

zance. 

5.  Construction    and    validity    of    re- 

cognizance. 

6.  Return  of   recognizance. 

7.  Discharge  of  bail. 

8.  Forfeiture  of  recognizance. 


1.  Authority  to  admit  to  bail,  or  to  com- 
pel A  recognizance. 

1.  In  general.  The  power  to  take  bail 
is  incident  to  the  power  to  hear  and  deter- 
mine the  offense  charged.  People  v.  Van 
Home,  8  Barb.  158;  Young  v.  Shaw,  1 
Chip.  224.  And  the  court  may  admit  the 
prisoner  to  bail  on  a  second  application 
after  having  previously  refused  to  do  so. 
Ex  parte  Campbell,  20  Ala.  89. 

2.  Courts  of  record.  The  Supreme  Court 
of  New  York,  or  a  justice  thereof,  as  well  as 
courts  of  Oyer  and  Terminer,  have  authority 
to  bail  in  all  cases.  People  v.  Van  Home, 
8  Barb.  158;  Ex  parte  Taylor,  5  Cow.  39. 
But  though  the  offense  appear  but  man 
slaughter,  it  is  not  of  course  to  admit  to 
bail.     lb. 

3.  In  New  York,  where  a  person  is  arrested 
under  a  warrant  indorsed  pursuant  to  the 
statute  (2  R.  S.  707,  §  5),  for  an  offense  pun- 
ishable by  imprisonment  in  the  State  prison, 
he  cannot  be  admitted  to  bail  in  the  county 
where  the  arrest  is  made,  but  must  be  taken 
back  to  the  county  in  which  the  warrant 
was  issued.  Clarke  v.  Cleveland,  6  Hill, 
344. 

4.  In  Georgia,  the  court  has  the  discre- 
tionary power  to  bail  in  all  cases.  State  v. 
Abl)ot,  R.  M.  Charlt.  244.  In  Ohio,  where 
a  person  accused  of  crime  has  been  com- 
mitted for  trial  by  a  justice  of  the  peace, 
the  Court  of  Common  Pleas  may  recognize 
him  to  appear  from  day  to  day  without  in- 
vestigating the  circumstances.  State  v. 
Dawson,  6  Ohio,  251. 


5.  Justices  of  the  peace.  In  Illinois, 
justices  of  the  peace  are  authorized  to  take 
recognizances  in  all  bailable  cases.  Mc- 
Farlan  v.  People,  13  111.  9.  In  Kentucky, 
they  may  take  bail.  Hostetter  v.  Com.  12 
B.  Mon.  1. 

6.  In  South  Carolina,  two  justices  of  the 
peace  have  power  to  admit  to  bail  a  prisoner 
brought  before  them  on  a  charge  of  felony, 
but  not  after  he  has  been  committed.  Bar- 
ton V.  Keith,  2  Hill,  S.  C.  537. 

7.  In  Massachusetts,  a  justice  of  the  peace 
has  no  authority  to  admit  to  bail  for  an 
offense  which  may  be  proceeded  against  as 
well  by  action  or  information  qui  tarn  as  by 
indictment.  Com.  v.  Cheney,  6  Mass.  347 ; 
nor  after  a  prisoner  has  been  committed  by 
another  justice.  Com.  v.  Canada,  13  Pick. 
86.  Neither  can  he  let  to  bail  one  convicted 
of  felony  who  escapes  before  sentence  into 
another  State  and  is  afterwards  brought 
back.     Com.  v.  Otis,  16  Mass.  198. 

8.  In  Vermont,  a  justice  of  the  peace,  upon 
the  complaint  of  a  private  person,  for  a 
felony  or  misdemeanor,  may  arrest,  bind 
over  or  commit  for  trial.  But  unless  the 
party  complaining  has  a  pecuniary  interest 
in  the  conviction,  the  bond  must  be  taken 
to  the  State.  State  Treasurer  v.  Rice,  11 
Vt.  839. 

9.  In  Virginia,  after  the  prisoner  has  been 
sent  to  a  court  of  record  for  trial,  a  justice 
of  the  peace  has  no  authority  to  admit  him 
to  bail.  Hamlett  v.  Com.  3  Gratt.  82.  But 
the  justice  can  take  bail  alter  the  examining 
court  has  decided  that  the  prisoner  is  baila- 
ble and  fixed  the  amount  of  bail.     lb. 

10.  In  New  York,  where  a  justice  of  the 
peace  was  authorized  to  hear  a  complaint 
and  take  a  recognizance  only  in  the  absence 
of  the  police  justice  residing  in  the  same 
town,  it  was  held  that  the  presumption,  in 
the  absence  of  proof,  was  that  the  justice  of 
the  peace  did  not  exceed  his  jurisdiction. 
People  V.  Mack,  1  Parker,  567.  The  com- 
mitment of  the  accused,  after  the  record  of 
conviction  has  been  signed,  ousts  the  magis- 
trate of  jurisdiction  to  take  a  recognizance. 
People  V.  Duffy,  5  Barb.  205;  People  v.. 
Brown,  23  Wend.  47.  Whether  two  justices 
of  the  peace  have  autliority,  under  the  statute 


(30 


BAIL   AND   RECOGNIZANCE. 


Bail  when  in  General  Refused  or  Allowed. 


relative  to  disorderly  persons,  to  take  the 
recognizance  after  the  filing  of  the  record 
and  previous  to  commitment — query.  Peo- 
ple V.  Brown,  23  Wend.  47. 
>■  11.  In  Connecticut,  a  justice  of  the  peace 
may  admit  a  prisoner  to  bail  at  an  adjourned 
examination.  Potter  v.  Kingsbery,  4  Day, 
98.  In  the  same  State,  a  justice  of  the  peace 
has  authority  to  require  sureties  of  the  peace 
and  good  behavior  of  a  person  charged  with 
keeping  a  bawdy-house,  and  on  his  failing 
to  comply  with  such  order,  may  commit 
him  to  prison  for  a  term  not  exceeding 
thirty  days.  Darling  v.  Hubbell,  9  Conn. 
3o0. 

12.  A  magistrate  who  is  authorized  to 
take  the  recognizance  of  persons  accused  of 
crime  cannot  delegate  the  power  to  another. 
Butler  V.  Foster,  14  Ala.  323 ;  nor  after  he 
has  bound  over  the  accused,  cancel  the  re- 
cognizance and  discharge  him.  Benjamin 
V.  Garee,  Wright,  450. 

13.  U.  S.  commissioner.  A  United  States 
commissioner,  as  respects  the  taking  of  bail, 
has  the  same  power  as  State  magistrates. 
U.  S.  V.  Hortou's  Sureties,  2  Dillon,  94;  s.  c. 
1  Green's  Crim.  Reps.  431. 

14.  Sureties  for  good  behavior.  At 
common  law,  courts  of  record  may  require 
sureties  for  good  behavior  from  a  person 
who  has  been  convicted  of  a  gross  mis- 
demeanor. Estes  V.  State,  2  Humph.  49G. 
In  Pennsylvania,  where  a  person  is  tried  for 
burglary  and  acquitted,  the  court  may  com- 
pel him  to  find  sureties  for  the  peace  and 
good  behavior.  Bamber  v.  Com.  10  Barr, 
339. 

15.  When  a  married  woman  is  disqualified 
by  law  from  taking  the  oath  necessary  to  ob- 
tain a  peace  warrant,  her  husband  may  de- 
mand surety  of  the  peace  in  her  behalf  against 
any  one  from  whom  danger  to  her  life  or 
person  may  be  justly  apprehended;  and  the 
same  is  true  as  to  the  other  domestic  rela- 
tions.    State  V.  Tooley,  1  Head,  9. 

16.  A  complaint  on  oath  praying  for 
.surety  of  the  peace,  which  states  that  the 
"  affiant  verily  believes  and  actually  fears, 
and  has  just  cause  to  fear  and  apprehend 
that  the  said  J.  8.  will  kill  him,  said  affiant, 
or  do  him  great  bodily  injury,  or  procure 


others  to  do  so,"  is  bad  f»r  being  in  the 
alternative.     Steele  v.  State,  4  Ind.  561. 

2,    Bail   when    in   general   refused  ok 

ALLOWED. 

17.  In  treason.  There  must  be  strong 
circumstances  which  will  induce  the  court 
to  admit  a  person  to  bail  who  is  charged 
with  high  treason.  U.  S.  v.  Stewart,  3 
Dallas,  343.  But  see  U.  S.  v.  Hamilton,  3 
lb.  17. 

18.  In  murder.  An  indictment  for  a 
capital  oQ'euse  furnishes  of  itself,  a  pre- 
sumption of  guilt  too  great  to  entitle  the 
defendant  to  bail  as  a  matter  of  right.  It 
creates  a  presumption  of  guilt  for  all  pur- 
poses, except  the  trial  before  a  petit  jury. 
People  V.  Tinder,  19  Cal.  539. 

.19.  In  Alabama,  the  court  has  power, 
where  "  the  proof  is  not  evident,  or  the 
presumption  great,"  to  admit  to  bail  a 
prisoner  accused  cf  murder.  Ex  parte  Simon- 
ton,  9  Porter,  390.  And  in  that  State,  under 
the  constitution  (art.  1,  §  17)  and  laws 
(Code  §§  3669-70),  a  person  indicted  for 
murder  is  entitled  to  bail,  unless  the  court 
to  which  the  application  is  made  is  of 
opinion,  on  the  evidence,  adduced,  that  he  is 
guilty  of  murder  in  the  first  degree,  and  if 
the  application  for  bail  is  made  to  a  circuit 
judge,  and  is  by  him  refused,  the  evidence 
in  the  case  may  be  set  out  on  exceptions 
(Code  §3673),  and  application  made  there- 
on to  the  Supreme  Court.  Ex  parte  Banks, 
28  Ala.  89.  On  such  an  application,  the 
prisoner  is  presumed  to  be  guilty.  Exparte 
Vaughan,  44  Ala.  17. 

20.  In  Alabama,  where  the  trial  of  a 
capital  offense  is  continued  at  one  term,  on 
account  of  the  disability  of  the  presiding 
judge,  and  at  the  succeeding  term  by  the 
State,  without  the  defendant's  fault  or  con- 
sent, he  has  a  right  to  be  admitted  to  bail, 
notwithstanding  the  case  had  been  previ- 
ously continued  on  his  motion.  Ex  parte 
Stifl;  18  Ala.  464. 

21.  In  Arkansas,  an  indictment  in  a  capital 
case  raises  such  a  presumption  of  guilt  as  to 
deprive  tlie  prisoner  of  the  privilege  of  being 
admitted  to  bail  as  a  matter  of  right;  and 
to  entitle  him  to  it,  he  must  rebut  the  pre- 


BAIL  AND  EECOGNIZANCE. 


61 


Bail  when  in  General  Refused  or  Allowed. 


sumption  raised  against  him  ])y  the  indict- 
ment.    Ex  parte  White,  4  Eng.  233. 

22.  In  Indiana,  where  a  prisoner  is  indicted 
for  murder  in  the  first  degree,  he  may  sue 
out  a  writ  of  habeas  corpus  to  be  admitted 
to  bail,  and  upon  proof  that  he  is  guilty  of  a 
bailable  homicide,  he  should  be  allowed 
bail.     Lumm  v.  State,  3  Ind.  293. 

23.  In  Illinois  and  Missouri,  every  offense 
is  bailable,  except  capital  oflfenses  where  the 
proof  is  evident  or  the  presumption  great. 
Shore  v.  State,  6  Mo.  640 ;  Foley  v.  People, 
1  Breese,  33.  In  Pennsylvania  and  Ken- 
tucky, in  capital  cases,  where  the  proof  is 
evident,  or  the  presumption  great,  the  pris- 
oner will  not  be  admitted  to  bail.  Com  v. 
Keeper  of  Prison,  3  Ashm.  237 ;  Villery  v. 
Com.  8  B.  Mon.  3.  In  New  Jersey,  the 
power  of  the  court  to  admit  to  bail  in  capital 
cases,  will  be  seldom  exercised,  and  Avith 
great  caution.  State  v.  Blackafellow,  1 
Halst.  332. 

24.  In  South  Carolina,  after  indictment 
for  a  capital  offense,  the  prisoner  may  be 
admitted  to  bail,  at  the  discretion  of  the 
court ;  and  the  court  may  entertain  affirma- 
tive affidavits,  showing  that  the  prosecution 
Avas  instituted  from  malice  or  mistake. 
State  V.  Hill,  3  Brev.  89.  But  where  two 
justices  under  the  habeas  corpus  act  had 
admitted  a  prisoner  to  bail  who  was  charged 
in  the  warrant  with  murder,  it  was  held 
that  they  were  liable  to  indictment.  State 
V.  Arthur,  1  McMullan,  456, 

25.  Circumstances  of  homicide  to  be  in- 
quired into.  The  mere  fact  that  a  grand  jury 
has  found  an  indictment  for  murder,  docs 
not  preclude  an  inquiry  into  the  facts  of  the 
case  to  ascertain  whether  the  offense  may 
not  be  of  such  grade  as  to  entitle  the  prisoner 
to  bail.  Lynch  v.  People,  33  111.  494.  The 
consideration  that  the  jury  in  a  capital  case 
disagreed,  will  not  in  itself,  entitle  the  pris- 
oner to  bail.  State  v.  Summons,  19  Ohio, 
139.  But  in  deciding  an  application  to  bail 
a  prisoner  indicted  for  murder,  the  result  of 
a  previous  trial  is  proper  to  be  considered 
in  determining  the  probability  of  a  future 
conviction,  and  of  the  prisoner's  guilt. 
Where  the  jury  on  a  former  trial  were  equally 
divided,    six  being  in    favor   of  acquitta'. 


and  six  for  conviction,  and  it  appeared  that 
a  second  trial  would  soon  take  place,  and 
that  the  prisoner's  health  was  not  being 
seriously  impaired  by  his  confinement,  bail 
was  refused.     People  v.  Cole,  6  Parker,  695. 

26.  Illness  of  prisoner.  Where  a  prisoner 
under  indictment  for  murder  was  in  such  ill 
health  that  his  confinement  endangered  his 
life,  it  was  held  to  be  good  cause  for  ad- 
mitting him  to  bail.  Semme's  Case,  11  Leigh, 
605.  Where  a  person  was  detained  on  a 
charge  of  piracy,  it  was  held  that  if  in  the 
opinion  of  a  skillful  physician,  the  nature  of 
the  prisoner's  illness  was  such  that  confine- 
ment must  be  injurious,  and  might  be  fatal, 
he  ought  to  be  bailed.  U.  S.  v.  Janes,  3 
Wash.  C.  C.  234.  In  Virginia,  where  the 
accused  was  in  prison  under  four  indict- 
ments for  felony,  and  it  was  proved  that 
continued  confinement  would  endanger  his 
life,  he  was  admitted  to  bail.  Archer's 
Case,  6  Graft.  705. 

27.  In  cases  not  capital  In  cases  of 
felony  the  prisoner  cannot  demand  as  of 
right  to  be  released  from  imprisonment  and 
let  to  bail.  He  should  not  be  so  released, 
unless  the  court  can,  upon  all  the  facts,  see 
that  letting  to  bail  will  probably  insure  his 
forthcoming  to  abide  his  trial.  People  v. 
Dixon,  4  Parker,  651. 

23.  The  statute  of  New  York,  which  pro- 
vides that  if  a  person  brought  up  on  habeas 
corpus,  appear  to  be  guilty  of  an  offense,  the 
judge  shall  hold  the  person  to  bail,  although 
his  commitment  be  irregular,  if  it  be  a  bail- 
able offense,  contemplates  a  clear  case  of 
guilt,  and  does  not  apply  to  a  case  where 
two  coroner's  inquests  have  been  held,  one 
of  which  found  that  the  death  resulted  from 
suicide,  and  the  other,  that  there  was  cause 
to  suspect  the  defendant  of  the  homicide. 
People  V.  Bitdge,  4  Parker,  519. 

29.  Where  two  grand  juries  had  found 
that  the  crime  committed  was  manslaughter, 
and  one  that  it  was  murder,  it  was  held  that 
the  prisoner  was  entitled  to  the  benefit  of 
the  presumption  that  his  offense  was  no 
more  than  manslaughter,  and  he  was  ad- 
mitted to  bail.  People  v.  Van  Home,  8 
Barb.   158. 

30.  In  Virginia,  where   the  defendant  is 


G2 


BAIL  AND   RECOGNIZANCE. 


Bail  when  in  General  Refused  or  Allowed. 


acquitted  on  the  trial  of  one  of  several  in- 
dictments found  on  substantially  one  and  the 
same  offense,  he  ■will  be  entitled  to  bail. 
Green's  Case,  11  Leigh,  G77.  But  acquittal 
on  the  trial  of  one  of  two  indictments  for 
p:is.sing  counterfeit  money  will  not  entitle 
the  prisoner  to  be  let  to  bail  in  the  other. 
Summerfield's  Case,  2  Rob.  767. 

31.  In  Georgia,  in  crimes  of  a  high  grade, 
where  the  proof  is  positive,  and  there  are 
no  extrinsic  circumstances  in  favor  of  the 
prisoner,  bail  will  be  refused.  State  v. 
Howell,  E.  M.  Charlt.  120.  But  where  there 
are  mitigating  circumstances  in  favor  of  the 
prisoner,  and  a  presumption  that  he  has  only 
been  guilty  of  a  minor  ofiense,  the  court  will 
admit  to  bail.     State  v.  Wicks,  lb.  139. 

32.  Upon  indictment  for  mayhem,  if  the 
offense  is  flagrant  without  mitigating  cir- 
cumstances, bail  will  not  be  taken.  State 
V.  Mairs,  Coxe,  335. 

33.  When  a  person  brought  before  a 
magistrate  for  a  violation  of  the  act  of  New 
York  of  April  9,  1855,  "  for  the  prevention 
of  intemperance,  pauperism,  and  crime,"  de- 
mands that  his  examination  shall  be  taken, 
and  offers  bail  for  his  appearance  at  the 
next  Court  of  Sessions,  the  refusal  of  his  re- 
quest by  the  magistrate  will  be  error. 
People  V.  Berberrich,  20  Barb.  224. 

34.  Omission  to  prosecute.  A  person  ac- 
cused of  felony  may  make  the  omission  to 
prosecute  a  good  claim  for  bail,  if  the  omis- 
sion is  oppressive ;  as  when  the  prosecuting 
officer,  or  committing  magistrate,  permits  a 
term  of  a  court  in  which  the  prisoner  could 
have  been  tried,  to  pass  without  commenc- 
ing the  trial.  State  v.  Abbott,  R.  M.  Charlt. 
214.  In  South  Carolina,  a  prisoner  accused 
of  forgery  will  lie  admitted  to  bail  at  the 
second  court,  if  no  indictment  has  been 
found  against  him.  State  v.  Buych,  2  Bay, 
563.  In  Massachusetts,  where,  upon  indict- 
ment for  burglary,  the  prosecuting  attorney 
did  not  deem  it  safe  to  go  to  trial  upon  the 
evidence  he  had,  the  prisoner  was  bound  in 
his  own  recognizance  to  appear  for  trial  at 
the  next  term.  Com.  v.  Phillips,  16  Mass. 
423. 

35.  After  conviction.  The  prisoner  might 
be  admitted  to  bail  after  conviction  at  com- 


mon law.     Davis  v.  State,  6  How.  Miss.  399; 
State  V.  Hill,  3  Brev.  89. 

36.  Bail  is  founded  on  the  doubt  which 
may  exist  as  to  the  prisoner's  guilt.  If  his 
guilt  is  beyond  doubt,  he  ought  not  to  be 
bailed.  But  the  prisoner  may  be  admitted 
to  bail,  even  after  conviction  and  sentence, 
when  it  appears  that  he  was  improperly  con- 
victed, or  there  are  serious  doubts  as  to  his 
guilt.  People  v.  Lohman,  2  Barb.  450.  Un- 
der section  19  of  the  statute  of  New  York, 
relative  to  habeas  corpus,  a  person,  after  con- 
viction for  a  misdemeanor,  is  entitled  to  be 
heard  on  an  application  to  be  let  to  bail, 
even  after  the  execution  of  judgment  has 
commenced,  where  a  writ  of  error  has  been 
allowed  in  his  case,  with  a  direction  that  it 
shall  operate  as  a  stay  of  the  execution  of 
the  judgment;  and  it  is  discretionary  with 
the  judge  to  let  him  to  bail  pending  the  de- 
cision of  the  court  on  the  writ  of  error. 
People  V.  Folmsbee,  60  Barb.  480, 

37.  In  North  Carolina,  after  convicrion 
for  passing  counterfeit  money,  it  was  held 
that  the  prisoner  was  not  entitled  to  be  ad- 
mitted to  bail,  as  a  matter  of  right;  but  that 
it  was  in  the  discretion  of  the  court  before 
which  the  appeal  was  taken.  State  v. 
Rutherford,  12  Hawks,  458. 

38.  In  Mississippi,  where  the  punishment 
is  only  fine  and  imprisonment,  the  court  will 
admit  the  prisoner  to  bail  after  conviction 
when  the  circumstances  of  the  case  justify 
it.  But  the  power  will  be  exercised  with 
great  caution,  and  only  in  minor  offenses. 
Davis  v.  State,  6  How.  Miss.  339. 

39.  In  South  Carolina,  although  in  minor 
offenses,  it  is  usual  to  admit  to  bail,  after 
conviction,  where  motions  for  new  trial  or 
in  arrest  of  judgment  are  made,  yet  it  wiil 
not  be  done  after  conviction  of  an  infamous 
crime.     State  v.  Connor,  2  Bay,  34. 

40.  Upon  allowance  of  writ  of  error. 
Whether  a  prisoner  in  confinement  in  pursu- 
ance of  a  final  judgment  and  sentence  can 
be  admitted  to  bail  after  an  allowance  of  a 
writ  of  error,  when  there  is  no  direction 
therein  that  the  same  shall  operate  as  a  stay 
of  proceedings — query.  Dempsey  v.  People, 
5  Parker,  85. 

41.  Appeal  from  decision.     Though  the 


BAIL  AND  EECOGNIZANCE. 


63 


Proof  Required  to  Admit  to  Bail. 


Form  and  Requisites  of  Recognizance. 


decision  of  a  committing  magistrate  or  courts 
in  relation  to  admitting  to  bail,  is  final  as  to 
other  magistrates  or  courts  of  co-ordinate 
or  concurrent  jurisdiction,  yet  it  may  be  re- 
viewed on  appeal.  People  v.  Cunningham, 
3  Parker,  531.  Where  a  police  justice  by 
whom  the  prisoner  Avas  committed,  and  also 
the  court  of  General  Sessions  before  whom 
the  prisoner  was  triable,  refused  bail,  and 
afterward  a  judge  of  the  Supreme  Court 
sitting  at  chambers,  admitted  to  bail,  the 
latter  decision  was  reversed  by  the  general 
term  of  the  Supreme  Court,  on  the  ground 
that  the  question  was  res  acljudicata  when 
brought  before  the  single  judge.  lb.  But 
when  bail  is  refused  on  the  ground  that  it 
is  not  sufficient,  a  new  application  may  be 
made  for  a  discharge  on  offering  other  bail. 
lb. 

3.  Proof  required  to  admit  to  bail. 

42.  In  general.  The  maxim  of  law 
that  every  one  is  presumed  innocent  until 
he  is  proved  guilty,  does  not  apply  to  the 
question  of  admitting  a  person  accused  of 
crime  to  bail.  People  v.  Goodwin,  1 
Wheeler's  Crim.  Cas.  434. 

43.  In  Ohio,  if  the  evidence  produced  on 
the  hearing  of  the  application  to  admit  to 
bail  be  such  that  it  would  not  sustain  a 
verdict  of  guilty,  on  a  motion  for  a  new 
trial  the  court  will  admit  to  bail.  State  v. 
Summons,  19  Ohio,  139. 

44.  A  person  indicted  for  murder,  can- 
not be  admitted  to  bail  on  ex  parte  testi- 
mony.    State  V.  Dew,  1  Taylor,  142. 

45.  Testimony  at  inquest.  On  a  ques- 
tion of  bail  before  indictment,  on  a  charge 
of  murder,  the  court  on  habeas  corpus  may 
look  into  the  examination  had  by  the  cor- 
oner by  whom  the  prisoner  was  committed, 
to  ascertain  whether  a  crime  has  been  per- 
petrated, and  if  so  the  strength  of  the  proofs 
that  support  it.  People  v.  Beigler,  3  Parker, 
316.  But  when  the  indictment  has  been 
found,  the  inquest  of  the  coroner,  and  the 
depositions  before  the  magistrate,  cannot 
be  regarded  on  an  application  to  admit  to 
bail.     People  v.  Dixon,  4  lb.  654. 

46.  Affidavits  or  oral  testimony.  Upon 
an  application  to  be  let  to  bail  the  prisoner 


is  not  restricted  to  the  record,  but  extraneous 
facts  may  be  introduced  in  evidence.  Peo- 
ple V.  Cole,  6  Parker,  695.  The  affidavits  of 
jurors  are  admissible  to  prove  the  disagree- 
ment of  the  jui-y  on  a  former  trial.     lb. 

47.  On  an  application  to  be  admitted  to 
bail  after  indictment  for  a  capital  offense, 
affidavits  or  oral  testimony  to  repel  the  pre- 
sumption of  guilt  arising  from  the  indict- 
ment can  only  be  received  under  special 
and  extraordinary  circumstances,  such  as: — 
the  existence  at  the  time  the  indictment  was 
found  of  great  popular  excitement  witb 
reference  to  the  prisoner;  proof  that  the 
person  charged  to  have  been  murdered  ia 
still  alive;  the  admission  of  the  public  pros- 
ecutor that  the  evidence  will  not  warrant  a 
conviction ;  where  there  has  been  a  trial  and 
the  jury  have  disagreed,  or  where  after  ver- 
dict, a  new  trial  has  been  granted  for  insuflS- 
ciency  of  the  evidence;  and  where  the  trial 
of  the  prisoner  has  been  unreasonably  de- 
layed.    People  V.  Tinder,  19  Cal.  539. 

4.    Form   and  requisites   of  recogni- 
zance. 

48.  At  common  law.  A  recognizance  at 
common  law  was  an  obligation  entered  into 
before  some  court  of  record  or  magistrate, 
to  do  a  certain  thing,  as  to  keep  the  peace, 
or  to  appear  and  answer  to  a  criminal  charge. 
It  was  not  signed  by  the  party.  The  cog- 
nizer  acknowledged  that  he  was  indebted  to 
the  cognizee,  in  a  certain  sum,  to  be  levied  of 
his  goods  and  chattels,  lands  and  tenements, 
if  he  should  make  default  in  performing  the 
condition.  In  other  respects  it  was  in  form 
like  a  penal  bond.  It  was  deemed  of  more 
solemnity  and  of  greater  legal  affect  than 
another  bond.  It  was  allowed  a  priority  in 
point  of  payment,  and  the  lands  of  the  cog- 
nizer  were  bound  from  the  time  it  was 
recorded.  Shattuck  v.  People,  4  Scam.  477, 
per  Tr^at,  J. 

49.  How  taksn.  All  recognizances  in 
cases  of  crime,  should  be  taken  to  the  State. 
Com.  V.  Porter,  1  A.  K.  Marsh.  44. 

50.  Date.  The  recognizance  may  bear 
date  of  the  day  on  which  the  prisoner  is 
recognized  to  appear.  State  v.  Bradley,  1 
Blackf  83. 


G4 


BAIL  AND   EECOGNIZANCE. 


Form  and  Requisites  of  Recognizance. 


51.  Commencement.  A  recognizance  is 
sulHcient  which  commences  as  follow'S:  "  Be 
it  remembered  that  on,  &c.,  came  A.  B.,  &c., 
before  me,  J,  P.,  a  justice  of  the  peace  in 
and  for  the  county,  &c.,  who  aclvnowledged 
themselves,  &c.''  Howie  v.  State,  1  Ala.  113. 

52.  General  requisites.  No  particular 
form  is  required  to  render  a  recognizance 
valid,  provided  it  contain  the  essential 
requisites  of  such  an  instrument.  Dean  v. 
State..  2  Sm.  c%  Marsh.  200.  But  oral  evi- 
dence is  not  admissible  to  give  effect  to  a 
defective  recognizance.  Nicholson  v.  State, 
2  Kelly,  363.  And  when  a  statute  in  rela- 
tion to  appeal  requires  that  the  accused 
shall  recognize  to  the  State  for  his  personal 
appearance  at  the  appellate  court,  the  pris- 
oner's remaining  in  custody  is  not  equivalent 
to  such  recognizance.  Com.  v.  Brigham,  16 
Pick.  10. 

53.  The  recognizance  should  state  the 
ground  on  which  it  is  taken,  in  order  to 
show  that  the  magistrate  taking  it  had 
jurisdiction.  State  v.  Smith,  2  Greenlf.  62 ; 
Com.  V.  Downey,  9  Mass.  520 ;  Com.  v. 
Daggett,  16  Mass.  447 ;  Goodwin  v.  Gover- 
nor, 1  Stew.  &  Port.  465 ;  Nicholscm  v. 
State,  2  Kelly,  363.  But  see  People  v. 
Kane,  4  Denio,  530 ;  State  v.  Hamer,  2 
Carter,  371;  State  v.  Weaver,  18  Ala.  293. 
The  recognizance  need  not  state  that  the 
charge  was  made  on  oath.  McCarty  v.  State, 
1  Blackf.  338. 

54.  A  recognizance  will  be  insufficient 
which  only  states  that  the  prisoner  was 
charged  with  the  offense,  without  stating  in 
some  way  that  there  was  probable  cause  for 
believing  him  guilty.  Peojjla  v.  Koeber,  7 
Hill,  39. 

55.  Form  of  a  recognizance  for  the  ap- 
pearance of  a  person  accused  of  crime,  who 
has  removed  the  cause  by  certiorari,  for 
error  in  his  conviction.  People  v.  Vermil- 
yea,  7  Cow.  108. 

56.  Dascription  of  offense.  It  has  been 
held  that  a  recognizance  need  not  recite  the 
offense  charged,  orshow  the  court  in  which  it 
was  taken.  State  v.  Rye,  9  Yerg.  386 ;  Fowler 
V.  Com.  4  Monr.  128,  or  specify  in  the  terms 
of  the  indictment  the  particular  act  which 
the  accused  conspired  to  do.     Hall  v.  State, 


15  Ala.  431.  But  when  the  recognizance  i» 
taken  before  a  court  of  limited  jurisdiction, 
it  should  so  far  describe  the  crime  charged, 
as  to  show  the  case  to  be  one,  in  which  the 
court,  had  power  to  take  bail.  People  V' 
Koeber,  7  Hill,  39.  Where  the  recognizance 
required  the  accused  to  appear  in  the  Circuit 
Court,  to  answer  "  the  charge  herein"  with- 
out other  description  of  the  offense,  it  was 
held  bad.     Simpson  v.  Com.  1  Dana,  523. 

57.  The  recognizance  will  be  good,  not- 
withstanding the  offense  be  not  described 
in  the  words  of  the  statute.  Hall  v.  State, 
9  Ala.  827.  A  recognizance  to  answer  a 
charge  of  felony,  is  sufficiently  certain. 
Cotton  V.  State,  7  Texas,  547.  But  a  re- 
cognizance to  appear  and  answer  a  charge 
of  "  gaming,"  without  describing  the  game 
so  as  to  show  that  it  is  indictable,  is  bad. 
Com.  V.  West.  1  Dana,  165.  A  recognizance 
to  appear  and  answer  to  a  charge  of  "  play- 
ing at  a  game  of  cards "  is  bad,  simply 
"  ])laying  aL  a  game  of  cards"  not  being 
an  indictable  offense.  Cotton  v.  State,  7 
Texas,  547;  Towsey  v.  State,  8  lb.  173. 

58.  Name.  The  name  of  the  counusor  if 
signed  to  the  recognizance,  need  not  be 
stated  in  the  body  of  it.  Cunningham  v. 
State,  14  Mo.  402.  And  the  omission  of 
a  party's  name,  from  the  body  of  a  recogni- 
zance, will  not  render  it  null  as  to  him  if 
he  has  acknowledged  it.  Hall  v.  State,  9 
Ala.  827. 

59.  Condition.  A  penalty  and  condition 
are  essential  to  a  recognizance.  Caldwell 
V.  Brindell,  1  Jones,  293.  The  essential 
parts  of  the  obligation  and  condition  should 
be  stated  in  the  body  of  the  recognizance ; 
and  as  close  an  analogy  between  the  recogni- 
zance to  appear  before  the  examining  magis- 
trate, and  the  one  to  appear  at  the  court  to 
which  it  is  returned,  should  be  observed,  as 
possible.  Dillujgham  v.  U.  S.  2  Wash.  C. 
C.  422. 

60.  Words  superadded  to  the  condition  of 
a  recognizance,  beyond  what  are  authorized 
by  the  statute,  do  not  invalidate  the  recogni- 
zance, but  it  has  the  same  effect  as  if  they 
had  been  omitted.  Williford  v.  State,  17 
Texas,  653;  Howie  v.  State,  1  Ala.  113. 

61.  Where  the  statute  provided  that  the 


BAIL  AND   EECOGNIZANCE. 


(55 


Form  and  Requisites  of  Recognizance. 


recognizance  should  be  made  returnable  to 
the  term  of  the  next  court ;  a  recognizance 
conditioned  for  the  appearance  of  the  ac- 
cused at  a  time  when  no  court  sat,  was  held 
void.  Butler  v.  State,  13  Sm.  &  Marsh. 
470;  Com.  v.  Bolton,  1  Serg.  &  Rawle,  328  ; 
State  V.  SuUivant,  3  Yerg.  281.  But  where 
the  accused  was  recognized  to  appear  at  the 
next  term  of  the  court,  to  be  held  on  the 
first  Monday  in  March,  it  was  held  that  the 
legal  effect  of  the  recognizance  was  not 
avoided  by  the  change  in  the  time  of  holding 
the  court.     Walker  v.  State,  6  Ala.  350. 

62.  In  New  York,  when  a  recognizance  is 
taken  by  a  justice  of  the  peace,  for  the  ap- 
pearance of  the  accused  to  answer,  it  must 
require  him  to  appear  at  the  next  criminal 
court  having  cognizance  of  the  offense ;  and 
if  it  do  not  do  so,  the  recognizance  will  be 
void.  People  v.  Mack,  1  Parker,  567.  Such 
a  recognizance  is  good,  notwithstanding  the 
words,  "  as  well  to  the  grand  as  to  the  petit 
jury,  and  not  depart  the  said  court  without 
leave."  People  v.  Willis,  5  Barb.  511.  lu 
Missouri,  where,  under  the  statute  (Wagner, 
p.  1075,  §  88)  authorizing  a  magistrate  to 
adjourn  the  examination  of  a  prisoner,  not 
exceeding  ten  days  at  one  time,  the  magis- 
trate, at  the  request  of  the  defendant,  ad- 
journed the  examination  nineteen  days,  and 
ordered  him  to  find  bail  to  appear  at  that 
time,  it  was  held  that  as  the  consent  of  the 
defendant  could  not  confer  jurisdiction  or 
power  to  make  the  order,  the  recognizance 
was  void.  U.  S.  v.  Horton's  Sureties,  2 
Dillon,  94:  s.  c.  1  Green's  Crim.  Reps.  431. 

63.  The  condition  of  a  recognizance  which 
does  not  go  beyond  enforcing  the  appearance 
of  the  party  accused  at  the  proper  term  of 
the  court,  and  his  submission  to  the  process 
and  judgment  of  the  law,  is  lawful,  when 
there  is  nothing  in  the  statute  that  shows 
that  less  was  intended.  The  words,  "and 
not  depart  from  said  court  without  license 
therefor,''  mean  not  to  depart  from  the  term 
of  the  court  at  which  the  defendant  was  rec- 
ognized to  appear.  State  v.  Baker,  50 
Maine,  45. 

64.  Where  the  indictment  is  quashed  be- 
cause it  was  found  l)y  a  grand  jury  sum- 
moned   by  the  sheriff  without  process,  the 

5 


prisoner  must  be  held  to  bail  to  appear  before 
the  next  court  of  Oyer  and  Terminer.  Nich- 
ols ads.  State,  2  South.  539. 

65.  A  condition  in  a  recognizance  to  an- 
swer to  a  charge  for  "  resisting  process,"  suf- 
ficiently indicates  the  offense,  although  the 
statute  makes  it  consist  in  knowingly  and 
willfully  resisting  or  opposing  any  officer  in 
the  State  in  serving  or  attempting  to  serve  or 
execute  any  legal  writ  or  process.  Browder 
V.  State,  9  Ala.  58. 

66-  The  recognizance  may  bind  the  ac- 
cused either  to  appear  and  answer  the  offense 
charged,  or  to  appear  and  answer  what  shall 
be  objected  against  him.  People  v.  Koeber, 
7  Hill,  39;  Gildersleeve  v.  People,  10  Barb. 
35.  In  Tennessee,  where  the  defendant  was 
required  to  find  sureties  that  he  would  not 
gamble  for  twelve  months,  it  was  held  not 
valid,  but  that  it  ouglit  tohave  been  a  re- 
cognizance with  sureties  for  good  behavior 
generally.     Estes  v.  State,  2  Humph.  496. 

67.  Where  a  person  being  indicted  for  an 
assault  with  an  attempt  to  commit  a  rape 
was  released  upon  a  bond  in  which  he  and 
his  sureties  bound  themselves  that  he  should 
appear  and  answer  to  the  charge  of  rape,  it 
was  held  that  such  a  condition  rendered  the 
bond  void.     State  v.  Forno,  14  La.  An.  450. 

68.  Amount.  The  fact  that  the  defend- 
ant is  a  man  of  fortune,  may  be  considered 
in  fixing  the  amount  of  his  bail.  Ex  parte 
Banks,  28  Ala.  89. 

69.  Bail  to  the  amount  of  two  thousand 
dollars  on  a  charge  of  peijury,  and  on  a 
charge  of  stealing,  in  the  sum  of  five  hun- 
dred dollars,  is  not  excessive.  Evans  v. 
Foster,  1  New  Hamp.  374.  Where  a  person 
was  charged  with  embezzling  between  sev- 
enty and  eighty  thousand  dollars,  bail  in  the 
sum  of  tweuty-five  thousand  dollars  was 
held  not  to  be  excessive.  Ex  parte  Snow,  1 
R.  I.  360. 

70.  The  sufficiency  of  an  affidavit  to  be 
admitted  to  bail,  and  the  amount  of  bail  on 
mesne  process  in  the  District  of  Columbia, 
are  by  the  act  of  Congress  of  1842,  ch.  108, 
to  be  determined  by  the  District  Court.  Ex 
im-te  Taylor,  14  How.  U.  S.  3. 

71.  Number  of  sureties.  Where  the 
prisoner  was   directed  to   give  bail  to  the 


60 


BAIL    AND   RECOGNIZANCE. 


Form  and  Requisities  of  Recognizance. 


Construction  and  Validity. 


amount  of  four  hundred  dollars,  with  two 
sureties  for  two  hundred  dollars  each,  and 
he  gave  bail  to  the  amount  of  four  hundred 
dollars,  witii  ten  sureties  in  the  sum  of  forty 
dollars  each,  it  was  held  insufficient,  and 
that  the  sureties  were  not  bound.  State  v. 
Buffum,  3  Fost.  267. 

72.  A  recognizance  taken  by  a  magistrate 
with  a  single  surety  is  valid,  notwithstanding 
the  statute  requii'es  two  or  more  sureties. 
State  V.  Baker,  50  Maine,  45. 

73.  How  executed.  In  general,  a  recog- 
nizance need  not  be  under  seal.  State  v. 
Foot,  3  Mills,  123.  Whether  where  a  recog- 
nizance which  is  required  to  be  under  seal 
is  signed  by  several,  and  seals  set  ojjposite 
the  names  of  some  of  them,  the  seals  upon 
the  paper  may  not  be  referred  to  all  who 
sign  it — query.     Hall  v.  State,  9  Ala.  827. 

74.  When  the  recognizance  is  acknowl- 
edged, it  need  not  be  signed.  Madison  v. 
Com.  2  A.  K.  Marsh.  131.  In  Kentucky,  the 
principal  and  sureties  need  not  sign  a  recog- 
nizance to  answer  a  charge  of  felony.  Com. 
V.  Mason,  3  A.  K.  Marsh.  456. 

75.  Where  an  indictment  for  adultery  or 
fornication  names  the  defendant  Caroline  T., 
and  the  recognizance  is  signed  Lucinda 
Katharine  7".,  and  is  conditioned  for  her 
appearance  at  the  next  term  of  the  court  "to 
answer  to  an  indictment  pending  in  said 
court  against  her  for  adultery  and  fornica- 
tion ;"  and  the  recitals  of  the  judgment  nisi 
state  that  it  appeared  to  the  satisfaction  of 
the  court  that  the  said  Caroline  T.  "  signed 
her  bond  by  the  name  o^ Lucinda  Katharine 
T.,"itis  not  a  variance  which  is  available 
to  the  recognizors.  Tolison  v.  State,  39 
Ala.  103. 

76.  An  infant  prisoner  should  not  join 
with  his  sureties  in  the  recognizance. 
Semme's  Case,   11  Leigh,  665. 

77.  A  recognizance  executed  by  the  sure- 
ties alone,  conditioned  for  the  appearance 
of  the  accused  to  answer  to  a  charge  of 
larceny,  is  valid.  Minor  v.  State,  1  Blackf. 
236.  But  a  recognizance  executed  by  a 
surety  in  behalf  of  a  person  indicted,  who 
has  not  been  served  with  process,  and  who 
does  not  appear,  is  not  binding.  People  v. 
Slayton,  1  Breese,  357. 


78.  Where  a  recognizance  was  signed  and 
sealed  by  principal  and  sureties,  and  attested 
by  justices,  and  by  them  delivered  to  the 
clerk  with  the  warrant  upon  which  it  was 
founded,  it  was  held  that  it  was  certain  to 
a  common  intent  that  the  recognizance  was 
taken  before  these  justices.  State  v.  Cherry, 
Meigs,  232. 

79.  Where  a  recognizance  taken  before 
the  requisite  authority  has  been  signed  and 
sealed  by  the  accused  and  his  surety,  its 
validity  is  not  impaired  by  the  failure  to 
insert  the  name  of  the  surety  in  a  blank  left 
for  that  purpose  in  the  body  of  it.  Badger 
V.  State,  5  Ala.  21. 

80.  Where  a  recognizance  taken  by  a 
sheriff  does  not  show  by  his  attestation  the 
county  of  which  he  is  sheriif,  it  is  void. 
State  V.  Austin,  4  Humph.  213. 

81.  Approval.  Where  two  persons  ap- 
proved of  the  recognizance  by  affixing  to 
their  respective  signatures  the  letters  J.  P., 
it  was  held  that  it  sufficiently  appeared  that 
the  recognizance  was  entered  into  before 
and  approved  by  two  justices.  Shattuck  v. 
People,  4  Scam.  477. 

82.  Amendment.  A  recognizance  with 
sm'eties,  entered  into  before  a  police  magis- 
trate by  a  person  charged  with  assault  with 
intent  to  kill,  may  be  amended  even  after 
an  action  is  brought  on  it.  State  v.  Young, 
56  Maine,  319.  A  recognizance  to  appear 
and  answer  at  a  certain  term  of  the  court, 
may  be  extended  at  any  subsequent  term  if 
an  indictment  be  found  at  that  term.  Elli- 
son V.  State,  8  Ala.  273. 

5.  Construction  and  validity. 

83.  Rule  of  construction.  The  rule  of 
construction  of  a  recognizance  in  a  criminal 
case  is,  if  possible,  to  make  it  answer  the 
purpose  for  which  it  was  intended,  and  that 
where  it  contains  words  that  are  absurd  and 
repugnant  they  are  to  be  rejected.  McCarty 
V.  State,  1  Blackf.  338 ;  State  y.  Wellman,  3 
Ohio,  14. 

84.  A  recognizance  taken  in  the  course  of 
proceedings  may  be  valid  notwithstanding 
the  proceedings  are  erroneous.  Com.  v. 
Huffey,  6  Barr,  348.  When  the  recogni- 
zance is  tiled  of  record,  the  presumption  is 


BAIL   AND   RECOGNIZANCE. 


67 


Construction  and  Validity. 


that  the  charge  was  regularly  preferred  and 
investigated,  and  the  proper  decision  made, 
before  it  was  entered  into  and  acknowledged. 
McCarty  v.  State,  supra ;  People  v.  Blank- 
man,  17  Wend.  252.  The  fact  that  persons 
oflFered  as  sureties  received  conveyances  of 
property  from  friends  of  the  defendant  to 
enable  them  to  qualify  as  bail,  is  not  an  ob- 
jection to  them.  People  v.  Ingersoll,  14 
Abb.  Pr.  N.  S.  28;  s.  c.  1  Green's  Crim. 
Reps.  635. 

85.  SuflBiciency  of  complaint.  A  recog- 
ni-zance  taken  upon  a  complaint  before  a 
magistrate,  is  not  bad  because  the  complaint 
contains  two  counts  with  a  different  oflFense 
set  forth  in  each.  State  v.  Fowler,  38  New 
Ilamp.  184. 

86.  Taken  by  unauthorized  person.  An 
instrument  purporting  to  be  a  recognizance 
taken  by  a  person  not  authorized  by  law  to 
admit  to  bail  in  criminal  cases,  is  a  contract 
between  the  sureties  and  the  State.  Den- 
nard  v.  State,  2  Kelly,  137. 

87.  Sufficiency  of  recital.  It  was  argued 
that  the  magistrate  had  no  authority  to  re- 
quire the  prisoner  to  enter  into  a  recog- 
nizance, because  it  did  not  appear  that  he 
found  that  "  there  was  probable  cause  to 
charge  the  accused,"  as  required  by  the 
statute.  The  recital  in  the  recognizance 
was,  that  he  found  that  "there  was  good 
reason  and  probable  cause  to  believe  said  L. 
is  guilty."  Z^eM  sufficient.  State  v.  Baker, 
50  Maine,  45. 

88.  Entered  into  by  several.  Where  the 
parties  acknowledge  themselves  bound  in  a 
given  sum,  to  be  levied  severally  and  in- 
dividually on  their  respective  goods,  it  is  a 
joint  and  several  recognizance,  and  not  the 
several  recognizances  of  each.  Ellison  v. 
State,  8  Ala.  273. 

89.  Where  several  of  the  same  name  bind 
themselves  by  a  recognizance,  it  will  not  be 
void  for  ambiguity  if  from  the  whole  in- 
strument they  can  be  sufficiently  identified. 
State  V.  Cherry,  Meigs,  232. 

90.  A  person  may  be  admitted  to  bail  on 
Sunday.  State  v.  Wyatt,  6  La.  An.  701.  But 
a  recognizance  entered  into  on  Sunday,  to 
prosecute  an  appeal  in  a  criminal  case,  is 
void.     State  v.  Suhur.  33  Maine,  539. 


91.  A  recognizance  taken  after  the  issuing 
of  a  mittimus  for  the  commitment  of  the 
prisoner,  and  giving  him  in  charge  of  an 
officer  who  is  taking  him  to  jail,  is  void. 
State  V.  Young,  56  Maine,  219. 

92.  Place  to  appear.  Although  a  recog- 
nizance does  not  specify  the  court  house  of 
the  county  as  the  place  at  which  the  pris- 
oner is  to  appear  for  examination,  yet  that 
place  is  to  be  intended,  when  the  statute 
points  out  that  as  the  only  place  where  the 
examination  shall  be  had.  Tyler  v.  Green- 
law, 5  Rand.  711. 

93.  A  recognizance  requiring  the  accused 
to  appear  at  the  next  Court  of  Sessions  to  be 
held  at  the  court  house,  in  the  city  of  H. , 
to  be  tried  by  a  jury  on  two  indictments  for 
forgery,  means  the  next  Court  of  Sessions  to 
be  held  in  the  city  of  H.,  and  not  the  next 
Court  of  Sessions  to  be  there  held  at  which 
a  jury  is  summoned.  People  v.  Derby,  1 
Parker,  392. 

94.  Force  and  effect.  A  recognizance  to 
appear  and  answer  binds  the  accused  not 
only  to  appear  at  the  time  to  which  it  is  re- 
turnable, but  to  continue  to  appear  until 
acquitted  or  discharged;  or  if  tried  and 
found  guilty,  until  the  sentence  of  the  court 
is  passed  upon  him,  unless  allowed  to  depart 
sooner.  Dennard  v.  State,  2  Kelly,  137; 
People  V.  McCoy,  39  Barb.  73.  And  the 
accused  is  not  to  depart  until  discharged, 
although  no  indictment  be  found  against 
him,  or  although  he  be  tried  and  found  not 
guilty.     State  v.  Stout,  6  Halst.  124. 

95.  The  binding  force  of  a  recognizance 
does  not  depend  upon  the  fact  that  the 
court  before  which  the  accused  is  required 
to  appear  has  jurisdiction  of  the  offense 
charged,  but  upon  the  duty  and  power  of 
the  magistrate  to  examine  and  admit  the 
accused  to  bail.  State  v.  Edney,  4  Dev.  &, 
Batt.  378. 

96.  The  prisoner  has  a  right  to  an  exami- 
nation before  he  can  be  compelled  to  enter 
into  a  recognizance;  but  if  he  waive  an 
examination,  a  recognizance  entered  into 
without  it  is  valid.  Champlain  v.  People, 
2  Comst.  82. 

97.  Where  upon  a  complaint  to  a  mag- 
istrate who  has  concurrent  jurisdiction  to 


68 


BAIL  AND   RECOGNIZANCE. 


Return  of  Recognizance, 


Discharge  of  Bail. 


try  it  with  the  Court  of  Common  Pleas,  the 
magistrate  decides  that  the  accused  shall  rec- 
ognize for  his  appearance  at  that  court,  it 
is  not  a  bar  to  an  indictment  for  the  same 
offense.     Com.  v.  Harris,  8  Gray,  470. 

6.  Return  of  recognizance. 

98.  How  to  be  made.  Recognizances  in 
criminal  eases  must  be  made  returnable  be- 
fore the  court,  and  not  before  a  judge  at 
chambers.  Corlies  v.  Waddell,  1  Barb.  355. 
Where  a  recognizance  is  returnable  at  the 
next  court  of  Oyer  and  Terminer,  the  fair  in- 
terpretation is,  that  the  court  of  Oyer  and 
Terminer  of  the  county  where  Uie  indictment 
was  found  was  intended.  People  v.  McCoy, 
39  Barb.  73. 

99.  What  to  be  returned.  In  Illinois, 
the  recognizance  of  the  accused  and  of  the 
witnesses  on  the  part  of  the  prosecution,  are 
all  the  proceedings  before  the  magistrate 
that  need  be  transmitted  to  the  court.  Shat- 
tuck  V.  People,  4  Scam.  477. 

100.  To  be  filed.  Under  the  statute  of 
New  York,  which  requires  that  whenever  a 
prisoner  shall  be  let  to  bail  by  an  officer  out 
of  court,  the  oiEcer  shall  immediately  cause 
the  recognizance  taken  by  him  to  be  filed 
with  the  clerk  of  the  county  in  which  the 
party  bailed  was  imprisoned,  the  court  can 
take  no  action  upon  the  recognizance  until 
it  is  filed.  In  a  suit  upon  a  recognizance,  it 
must  appear  that  the  recognizance  was  filed 
in  or  made  a  record  of  the  court  in  which  it 
is  returnable ;  and  it  is  a  good  defense  that 
the  recognizance  was  taken  on  an  illegal 
arrest.     People  v.  Shaver,  4  Parker,  45. 

101.  Right  of  sureties.  A  recognizance 
cannot  be  respited  from  one  court  to  another 
in  opposition  to  the  remonstrance  and  ex- 
press dissent  of  the  sureties,  if  they  have  the 
accused  in  court  when  the  motion  is  made. 
People  V.  Clary,  17  Wend.  374. 

7.  Discharge  op  bail. 

102.  In  general.  Bail  maybe  discharged 
by  the  death  of  the  principal,  or  by  the  con- 
viction and  imprisonment  of  the  principal. 
Canby  v.  Griffin,  3  Marring.  333;  People  v. 
Bartlett,  3  Hill,  570.     And  when  the  defend- 


ant is  acquitted,  his  recognizance  is  ipso 
facto  discharged  without  any  further  entry. 
Mills  V.  McCoy,  4  Cow.  406. 

103.  Failure  to  prosecute.  A  person  ac- 
cused of  crime,  and  under  recognizance,  is 
not  entitled  as  of  course  to  a  discharge,  al- 
though no  indictment  be  found.  Fitch  v. 
State,  2  ISTott  &  McCord,  558 ;  Champlain  v. 
People,  3  Corast.  83.  And  the  entry  of  a 
7ioUe  prosequi  does  not  entitle  the  accused  to 
discharge  from  custody,  nor  his  bail  to  dis- 
charge. State  V.  Haskett,  3  Hill,  S.  C.  95. 
But  where  a  person  has  been  bound  over  to 
keep  the  peace,  and  no  indictment  is  found 
or  continuance  had,  such  failure  operates  as 
a  discharge.  Goodwin  v.  Governor,  1  Stew. 
&  Port.  4G5.  And  where  a  prisoner  entered 
into  a  recognizance  to  appear  at  the  next 
term,  and  not  at  the  succeeding  session,  it 
was  held  that  he  was  entitled  to  be  dis- 
charged at  the  end  of  the  term.  Keef  haver 
V.  Com.  3  Penn.  340. 

104.  A  prisoner  who  is  recognized  to  appear 
on  the  first  day  of  the  next  court,  must 
appear  at  the  first  court  actually  held,  and  a 
failure  to  hold  the  court  at  the  usual  time, 
will  not  discharge  him.  Com.  v.  Cayton, 
2  Dana,  138. 

105.  Where  upon  an  accusation  of  bas- 
tardy, the  defendant  appeared  by  attorney, 
and  prevailed  upon  the  court  erroneously  to 
quash  the  recognizance,  it  was  held  that  it 
did  not  do  away  with  the  recognizance ;  but 
the  defendant  was  allowed  a  reasonable  time 
to  appear  in  discharge  of  it.  Com.  v. 
Thompson,  3  Litt.  384. 

106.  By  appearance  of  defendant. 
Where  the  recognizance  requires  the  per- 
sonal appearance  of  the  defendant  in  court 
on  the  first  day  of  the  term  to  answer  a 
charge  of  felony,  it  is  not  enough  that  he 
barely  appear  before  the  court  on  the  first 
day,  nor  w'ill  anything  avail  to  discharge 
the  recognizance  but  the  surrender  of  him- 
self into  custody  to  answer  the  felony 
charged.     Starr  v.  Com.  7  Dana,  243. 

107.  In  New  Jersey  where  a  prisoner  who 
had  entered  into  a  recognizance  to  appear  at 
the  Oyer  and  Terminer  made  default,  but 
appeared  at  a  subsequent  court  of  Quarter 
Sessions,  and   was  tried  and  acquitted,  his 


BAIL   AND   EECOGNIZANCE. 


09 


Discharge  of  Bail. 


Forfeiture  of  Recognizance. 


bail  was   discharged  on  payment  of   costs. 
State  V.  Saunders,  3  Halst.  177. 

108.  When  the  recognizance  is  forfeited 
by  the  failure  of  the  accused  to  appear,  and 
he  appears  at  the  succeeding  term,  the  court, 
for  good  cause  shown  by  the  defendant  for 
his  absence,  may  discharge  the  recognizance. 
U.  S.  V.  Feely,  1  Brock.  255. 

109.  Unlawfiil  arrest.  After  the  pris- 
oner has  given  bail  for  his  appearance  at 
court,  the  magistrate  has  no  authority,  on 
the  ground  that  his  bail  is  insufficient,  to 
cause  him  to  be  re-arrested  for  the  same 
offense.  Such  irregular  re-arrest  will  not 
therefore  discharge  his  bail.  Ingram  v. 
State,  27  Ala.  17. 

110.  The  arrest  by  a  i)rivate  individual  of 
one  under  recognizance  to  appear  and  an- 
swer, without  authority  in  writing,  being 
unlawful,  does  not  discharge  the  recogni- 
zance.    People  V.  Moore,  2  Douglas,  1. 

111.  Arrest  on  other  charge.  The  sub- 
sequent arrest  of  the  accused  on  a  different 
charge,  or  his  delivery  (after  escaping  from 
his  bail)  by  the  authorities  of  another  State 
on  the  requisition  of  the  governor,  when  the 
demand  does  not  seem  to  be  founded  on  the 
same  charge,  does  not  discharge  his  bail; 
their  remedy  in  such  case  being  by  applic- 
ation for  habeas  corpus.  Ingram  v.  State,  27 
Ala.  17. 

112.  Surrender  of  defendant.  The  sur- 
render on  demand,  of  the  accused  by  the 
governor  of  the  State  to  which  he  has  es- 
caped, to  the  authorities  of  the  State  where 
the  crime  was  committed,  and  in  which  he 
was  admitted  to  bail,  discharges  his  bail. 
State  V.  Allen,  2  Humph.  258. 

113.  Although  the  Circuit  Court  of  the 
United  States  cannot  issue  a  habeas  corpus  in 
order  to  surrender  a  principal  in  discharge 
of  his  bail,  yet  when  the  principal  is  in  con- 
finement under  the  process  of  a  State  court, 
it  will,  in  its  discretion,  respite  the  recog- 
nizance.    U.  S.  V.  French,  1  Gall.  1. 

114.  Special  bail  may  arrest  his  principal 
anywhere  and  at  any  time,  to  surrender  him 
in  discharge  of  the  bail.  The  bail  may 
make  the  arrest  himself,  or  may  delegate 
the  power  to  anotlier  or  others,  in  writing. 
Either  the  bail  or  his  deputy  may  call  others 


to  his  aid  in  making  the  arrest,  but  such 
aid  must  be  rendered  in  presence  of  the  per- 
son authorized  to  make  the  arrest.  State  v. 
Mahon,  3  Harring.  568,  per  Booth,  C.  J. 

115.  Where  the  accused  has  neglected  to 
comply  with  his  recognizance,  and  it  has 
been  forfeited  of  record,  the  surety  cannot, 
as  a  matter  of  right,  discharge  himself  from 
liability  by  surrendering  the  principal, 
though  the  court  may  receive  a  surrender 
and  remit  the  penalty  in  whole  or  in  part. 
Com.  V.  Johnson,  3  Cush.  454. 

116.  When  the  sureties  surrender  their 
principal,  it  releases  them  from  liability  on 
the  recognizance,  but  does  not  discharge  the 
principal.     Lorance  v.   State,  1  Carter,  359. 

117.  After  the  default  of  the  principal  has 
been  recorded,  his  sureties  may  be  dis- 
charged upon  showing  to  the  satisfaction  of 
the  court,  by  affidavits,  that  the  prisoner 
was  not  able  to  appear  at  the  proper  court 
by  reason  of  illness.  Com.  v.  Craig,  6  Rand. 
731. 

8.  Forfeiture  of  recognizance. 

118.  "When  to  be.  The  recognizance 
must  be  forfeited  before  motion  to  quash. 
State  V.  Holloway,  5  Ark.  433. 

119.  Calling  defendant.  Before  the  de- 
fault of  the  accused  is  entered,  it  must  be 
clearly  jjroved  that  he  was  called  and 
warned,  and  neglected  to  appear.  Dilling- 
ham V.  U.  S.  3  Wash.  C.  0.  422 ;  Park  v. 
State,  4  Ga.  329 ;  State  v.  Grigsby,  3  Yerg. 
280 ;  White  v.  State,  5  lb.  183.  He  may  be 
called  on  any  day  during  tlie  court,  and  it 
is  not  necessary  to  authorize  a  call  on  a  sub- 
sequent day  that  notice  should  be  given  to 
him  or  his  sureties.  People  v.  Blankman, 
17  Wend.  252.  But  notwithstanding  the 
recognizance  is  continued  by  statute  from 
term  to  term,  a  forfeiture  cannot  be  taken 
at  a  subsequent  term,  except  on  notice. 
Moss  V.  State,  6  How.  Miss.  298. 

120.  In  Kentucky,  where  a  person  enters 
into  a  recognizance  to  the  State,  it  is  not 
necessary  to  the  taking  of  his  default  that 
he  be  called.  But  it  is  his  duty  to  appear 
and  have  his  appearance  recorded  as  a  dis- 
charge of  the  recognizance;  and  the  State  is 


70 


BAIL  AND   RECOGNIZANCE. 


Forfeiture  of  Recognizance. 


not  bound  to  prove  that  he  did  not  appear. 
Leeper  v.  Com.  Litt.  Sel.  Cas.  102. 

121.  Time  to  appear.  Where  the  condi- 
tion of  a  recognizance  is  not  for  the  ap- 
pearance of  the  accused  on  any  particular 
day,  he  has  the  whole  term  to  enter  his 
appearance.  Griffin  v.  Com.  Litt.  Sel.  Cas. 
31. 

122.  Where  the  accused  is  recognized  to 
appear  on  the  first  day  of  the  term,  his 
appearance  on  a  subsequent  day  of  the  term 
will  not  save  his  recognizance.  Shore  v. 
State,  6  Mo.  640.  But  if  he  appear  during 
the  term,  his  sureties  may  be  discharged. 
Adair  v.  State,  1  Blackf.  202. 

123.  A  recognizance  for  the  appearance  of 
the  accused  on  a  certain  day,  is  not  forfeited 
by  his  neglect  to  appear  at  a  subsequent 
day,  to  -which  the  court  was  changed  by  a 
law  passed  after  the  taking  of  the  recogni- 
zance, the  law  not  providing  that  recogni- 
zances should  be  returned  and  parties  appear 
on  that  day.  State  v.  Melton,  Busbee,  N.  0. 
42G. 

124.  A  prisoner  was  recognized  to  appear 
at  the  "  April  criminal  term."  The  next 
succeeding  term  of  the  criminal  court  was 
in  May,  and  not  April.  In  June  there  was  a 
common  law  court,  when  he  was  called 
and  failed  to  answer.  Held^  that  there  was 
no  forfeiture  of  the  recognizance.  Thurston 
it  al.  V.  Com.  3  Dana,  224. 

125.  Where  a  recognizance  was  entered 
into  in  January,  and  at  a  Court  of  Sessions 
held  in  June  following  the  accused  was 
defaulted,  and  his  recognizance  declared 
forfeited  and  ordered  to  be  prosecuted,  and 
it  appeared  that  a  regular  term  of  the  Court 
of  Sessions  had  been  held  in  March  of  the 
same  year,  though  no  jury  trial  had  then 
been  had,  it  was  held  that  there  had  been  no 
breach  of  the  recognizance.  People  v. 
Derby,  1  Parker,  392. 

126.  Neglecting  to  appear.  The  fact 
that  the  defendant  is  imprisoned  on  another 
charge  in  a  neighboring  State  will  not 
excuse  his  non-appearance  in  obedience  to 
his  recognizance.  Tailor  v.  Taintor,  16 
Wallace,  366;  s.  c.  2  Green's  Crim.  Reps. 
143.  And  the  same  is  true  as  to  the  defend- 
ant's illness ;  but  it  will  excuse  the  sureties 


from  a  surrender  of  him  at  the  subsequent 
term.     State  v.  Edwards,  4  Humph.  226. 

127.  A  person  indicted  for  perjury  neg- 
lected to  appear  for  trial  because  he  could 
not  obtain  certain  testimony.  On  motion  to 
forfeit  his  recognizance  it  was  ordered  that 
the  motion  be  granted,  unless  within  thirty 
days  he  gave  a  new  recognizance  to  appear 
at  the  next  court.  People  agt.  Winchell,  7 
Cow.  160. 

128.  Where  the  accused,  who  has  entered 
into  a  recognizance  to  appear  to  answer  to 
an  indictment,  appears  and  is  discharged  by 
judgment  of  court,  and  the  judgment  is 
afterward  reversed,  and  the  prosecution 
resumed,  his  neglecting  to  appear  will  not 
forfeit  the  recognizance.  State  v.  Murphey, 
10  Gill  &  Johns.  365. 

129.  Where,  upon  an  accusation  of  assault 
with  intent  to  commit  a  rape,  the  prisoner 
was  bound  over  for  trial  before  the  Superior 
Court  in  a  bond,  the  condition  of  which  was 
that  "  the  prisoner  should  appear  before  said 
court  and  abide  final  judgment  on  said 
complaint,"  it  was  held  that  the  neglect  of 
the  accused  to  appear  and  answer  to  an 
information  filed  against  him  for  the  offense 
charged  in  the  complaint  was  not  a  forfeit- 
ure of  the  bond.  Kingsbury  agt.  Clark,  1 
Conn.  406. 

130.  Where  an  undertaking  of  bail  stip- 
ulates that  the  principal  shall  appear  at  the 
then  next  term  of  the  Circuit  Court,  and 
from  term  to  term  thereafter,  until  dis- 
charged by  law,  "  to  answer  an  indictment 
pending  in  said  court  against  him,"  but 
does  not  describe  or  identify  the  indictment, 
the  prosecution  may  (Code  of  Alabama, 
§  3679)  show  '•  the  particular  case  to  which 
the  undertaking  is  applicable,''  on  the  fail- 
ure of  the  principal  to  appear.  Yasser  v. 
State,  32  Ala.  586. 

131.  Failure  to  camply  with  judgment. 
Where  the  recognizance  requires  the  accused 
not  only  to  appear,  but  not  to  depart  with- 
out leave  of  the  court,  and  to  abide  the  order 
and  judgment  thereof,  if  he  fail  to  comply 
with  the  judgment  against  him,  the  recog- 
nizance will  be  forfeited.  State  v.  Whitson, 
8  Blackf.  178. 

132.  Neglecting   to  keep    the    peace.^ 


BAIL  AND  RECOGNIZANCE.— BAERETRY. 


71 


Forfeiture  of  Recognizance. 


What  is. 


Where  a  person  recognized  to  keep  the 
peace  is  guilty  of  acts  of  violence  out  of  the 
State,  it  is  no  breach  of  liis  recognizance. 
Key  V.  Com.  3  Bibb,  495. 

133.  Entry.  Where  the  clerk  neglected 
to  record  the  forfeiture  of  a  recognizance,  it 
may  be  entered  nunc  pro  tunc.  Ehodes  v. 
Com.  3  Harris,  272.  And  see  McFarlan  v. 
People,  13  111.  9. 

134.  A  recognizance  required  the  appear- 
ance of  W.  H.  G.,  and  the  indictment  was 
found  against  H.  G.,  and  a  forfeiture  of  the 
recognizance  entered  for  his  non-appear- 
ance. Held.,  that  this  did  not  show  any 
breach  of  the  obligation.  Hopkins  v.  Wal- 
ter, 11  111.  542. 

135.  When  two  forfeitures  of  a  recogni- 
zance are  entered  at  different  terms  of  the 
same  court,  the  second  entry  may  be  re- 
garded as  suqjlusage.  State  v.  Pepper,  8 
Mo.  249. 

136.  Eflfect.  A  judgment  on  a  recogni- 
zance for  a  failure  to  appear  is  not  a  bar  to 
another  prosecution  for  the  same  offense. 
Com.  V.  Thompson,  3  Lift.  284. 

137.  Remission.  In  Pennsylvania,  a  re- 
cognizance, after  it  is  forfeited,  may  be 
remitted  by  the  governor.  Com.  v.  Dennis- 
ton,  9  Watts,  142. 

See  Bastardy,  6. 


Barratry. 


1.  Meaning  of.  Barratry  consists  in  the 
willful  misconduct  of  the  master  or  mari- 
ners, done  for  some  unlawful  or  fraudulent 
purpose,  contrary  to  their  duty  to  the  own- 
ers of  the  vessel — as  the  criminal  delay  of 
the  voyage  for  an  unlawful  purpose.  Roscow 
v.  Corson,  8  Taunt.  G84 ;  or  the  willful  de- 
viation by  the  master  in  fraud  of  the  owners. 
Vallejo  V.  Wheeler,  Cowp.  143;  or  the 
stealing  from  the  cargo  by  the  seamen. 
Stone  V.  National  Ins.  Co.  19  Pick.  34;  or 
dropping  anchor  and  going  ashore  for  pri- 
vate emolument.  Ross  v.  Hunter,  4  Term 
li.  33,  And  where  the  master  or  mariners 
of  a  neutral  vessel  resist  the  search  of  a 
belligerent,  it  is  barratry.  Brown  v.  Union 
Ins.  Co.  5  Day,  1. 


2.  Negligence  and  intoxication.  Bar- 
ratry cannot  be  committed  by  negligence, 
unless  the  negligence  be  so  gross,  as  to 
amount  to  evidence  of  fraud.  Patapsco  Ins. 
Co.  V.  Coulter,  3  Pet.  222,  234 ;  Wigin  v. 
Amory,  14  Mass.  1 ;  Cronsillat  v.  Ball,  4 
Dall.  294.  But  the  offense  cannot  be  ex- 
cused or  palliated  by  intoxication.  Lawton 
v.  Sun  Mut.  Ins.  Co.  2  Cush.  500. 


BaiTctriK 


1.  What  is.  A  barretor  is  a  common 
mover,  exciter  or  maintainer  of  suits  or 
quarrels,  either  in  courts  of  justice  or  the 
country.  Com.  v.  Davis,  11  Pick.  432. 
Whether  three  acts  are  sufficient  to  consti- 
tute the  perpetrator  of  them  a  common 
barretor— 5Mery.  Com.  v.  McCuUock,  15 
Mass.  227.  They  could  only  be  such  upon 
proof  of  a  malicious  design  to  harass  and 
oppress.     lb. 

2.  Justice  of  the  peace.  An  indictment 
for  barretry  may  be  sustained  against  a  jus- 
tice of  the  jjeace  for  promoting  litigation  in 
order  to  obtain  lees,  although  the  prosecu- 
tion excited  by  him  may  not  have  been 
groundless.  And  in  order  to  show  guilty 
motive,  evidence  may  be  given  to  prove  that 
the  justice  exacted  illegal  fees  as  a  condition 
of  compounding  prosecutions.  State  v. 
Chitty,  1  Bail.  379. 

3.  Indictment.  The  indictment  must  con- 
tain the  words  "  common  barretor."  It  may 
charge  the  defendant  generally  as  "  a  com- 
mon barretor."  Com.  v.  Davis,  11  Pick. 
432.  The  acts  of  misconduct  need  not  be 
set  forth  in  the  indictment ;  but  the  prosecu- 
tor must,  before  the  trial,  give  the  defend- 
ant a  note  of  the  particular  acts  which  he 
intends  to  prove ;  and  if  he  omits  to  do  so, 
the  court  will  not  suffer  hi:n  to  proceed  in 
the  trial.     lb. 

4.  Bill  of  particulars.  In  a  prosecution 
for  barretry,  the  bill  of  particulars  concerns 
the  proof  and  mode  of  trial  only,  and  not 
the  indictment.  It  is  no  part  of  the  record, 
and  it  is  not  subject  to  demurrer,  or  a  matter 
of  technical  nicety;  but  is  simply  to  give 
notice   and   guard   against  surprise  on  the 


72 


BASTARDY 


The  Complaint. 


trial.     Com.  v.  Davis,  11  Pick.  432;  State  v. 
C'hitty,  1  Bail.  379. 

5.  Punishment.  The  punishment  for  bar- 
retry,  is  by  line  and  imprisonment;  and 
■R-here  the  accused  is  an  attorney,  his  name 
-will  be  stricken  from  the  rolls.  State  v. 
Chitt}',  siq)ra. 


fiastarbi). 


1.  The  complaint. 

2.  Warrant. 

3.  Examination. 

4.  iNDICTilENT. 

5.  Evidence. 

6.  Security. 

7.  Settlement  of  prosecution. 

8.  Concealing  death  of  bastard  child. 

1.  The  complaint. 

1.  By  whom  made.  In  Kentucky,  under 
the  statute  of  1795,  the  sole  power  of  com- 
mencing the  proceedings  belongs  to  the 
mother.  Burghen  v.  Straughen,  7  J.  J. 
Marsh.  583.  The  statute  of  that  State  in 
relation  to  bastardy,  applies  to  single  women 
only.  Sword  v.  Nestor,  3  Dana,  453.  A 
free  woman  of  color  may  institute  a  com- 
plaint and  obtain  a  warrant  against  the 
father  of  her  bastard  child.  Williams  v, 
Blincoe,  5  Litt.  171.  The  courts  have  juris- 
diction although  the  child  was  born  out  of 
the  State.     Taner  v.  Allen,  Litt.  Sel.  Cas.  25. 

2.  In  New  Hampshire,  the  complaint  may 
be  made  by  a  married  woman,  and  the  hus- 
band need  not  be  joined.  Parker  v.  Way, 
15  New  Hamp.  45.  In  North  Carolina,  a 
man  may  be  charged  with  the  maintenance 
of  a  bastard  child  begotten  upon  a  married, 
as  well  as  upon  a  single  woman.  State  v. 
Pettaway,  3  Hawks,  623  ;  State  v.  Allison, 
Phil.  N.  C.  346. 

3.  In  Alabama,  the  complaint  can  only  be 
made  by  an  unmarried  woman.  Judge  v. 
Kerr,  17  Ala.  328. 

4.  In  Indiana,  any  unmarried  female  resid- 
ing in  the  State  may  complain  before  a  jus- 
tice of  the  peace  against  the  father  of  her 
bastard  child,  without  reference  to  the  place 


where  the  child  was  born.  Cooper  v.  State, 
4  Blackf.  316.  The  prosecution  must  be 
brought  in  the  name  of  the  State.  State  v. 
Bradley.  1  Blackf.  83 ;  Woodburk  v.  Wil- 
liams, lb.  110  ;  Dickinson  v.  Gray,  2  lb. 
239. 

5.  In  Maine  and  Massachusetts,  wlien  the 
female  marries  after  the  child  is  born,  the 
husband  must  unite  with  her  in  the  prosecu- 
tion. Kenniston  v.  Rowe,  16  Maine,  38; 
Wilbur  v.  Crane,  13  Pick.  284. 

6.  Nature  of  the  proceedings.  In  Massa- 
chusetts and  Maryland,  the  proceedings, 
properly  speaking,  are  criminal.  Wilbur  v. 
Crane,  13  Pick.  284 ;  Cummings  v.  Hogdon, 
13  Mete.  246;  Hyde  v.  Chapin,  2  Cush.  77; 
Oldham  v.  State,  5  Gill,  90;  Root  v.  State, 
10  Gill  &  Johns.  374!  In  Maine,  the  pro- 
ceedings are  not  local.  Dennett  v.  Knee- 
land,  6  Maine,  460;  and  they  may  be 
commenced  after  the  birth  of  the  child. 
Kenniston  v.  Rowe,  16  Maine,  38.  The 
fact  that  the  accused  is  an  infant,  is  no 
defense.     McCall  v.  Parker,  13  Mete.  372. 

7.  Requisites.  In  Ohio,  the  complaint 
must  show  on  its  face  that  the  mother  of 
the  child  is  a  single  woman.  Devinney  v. 
State,  Wright,  564. 

8.  In  New  Hampshire,  where  the  com- 
plaint was  not  under  oath,  but  on  the  13th 
of  January,  the  woman  swore  that  on  the 
15th  of  the  previous  May,  the  child  was  be- 
gotten, it  was  held  that  the  time  was  charged 
with  sufficient  certainty.  Marston  v.  Jen- 
ness,  12  New  Hamp.  137. 

9.  In  Indiana,  the  affidavit  of  the  com- 
plainant need  not  show  that  she  is  a  resident 
of  the  county,  or  that  the  child  was  born 

j  there,  or  that  it  is  alive.  State  v.  Allen,  4 
I  Blackf.  269;  Beeman  v.  State,  5  lb.  165. 
[  And  under  a  recent  statute,  the  woman  is 
not  requii'ed  to  be  a  resident  of  the  State. 
i  State  V.  Gray,  8  Blackf.  374. 

10.  In  Massachusetts,  the  complaint  need 
not  be  in  writing.  Smith  v.  Hayden,  G 
Cush.  111.     In  Vermont,  the  complaint  must 

\  be  in  writing,  and  be  signed  and  sworn  to. 
I  Graves  v.  Adams,  8  Vt.  130.  But  the  com- 
!  plainant  need  not  swear  that  she  is  a  single 
j  woman.  Robie  v.  McNiece,  7  lb.  419.  Al- 
I  though  the  neglect  of  the  complainant  to 


BASTARDY 


73 


The  Complaint. 


Warrant. 


Examination. 


Indictment. 


sign  the  complaint,  if  objected  to  at  the 
proper  time,  may  be  ground  for  quashing 
the  proceedings,  yet  it  will  be  cured  by 
verdict.  Eamo  v.  Wilsoc,  34  lb.  517.  The 
complaint  will  be  good,  notwithstanding  it 
alleges  that  the  proceedings  are  under  a  stat- 
ute which  has  been  repealed.  Blood  v. 
3Ierrill,  17  lb.  598. 

11.  In  North  Carolina,  the  complaint  of 
the  woman  need  not  be  signed  by  her. 
State  V.  Thompson,  4  Ired.  484.  "Where  her 
examination  was  not  signed  by  justices,  but 
the  warrant  issued  by  them  was  on  the  same 
paper,  it  was  held  that  this  was  a  sufficient 
authentication  of  the  complaint,  though  it 
would  have  been  more  proper  if  the  com- 
plaint had  been  signed  by  the  woman  and 
attested  by  the  justices.  lb.  When  one  of 
the  justices  omits  to  sign  the  examination, 
the  court  to  which  the  proceedings  are  re- 
turned, may  permit  the  justice  then  to  sign 
it.  State  V.  Thomas,  5  Ired.  366.  The  ex- 
amination of  the  woman  being  made  by 
statute  prima  facie  evidence,  the  defendant 
can  only  introduce  evidence  to  show  his  in- 
nocence. If  he  wishes  to  object  to  the 
woman  as  a  witness,  he  must  do  so  by  a  mo- 
tion to  quash  the  order  of  filiation  as  being 
founded  on  incompetent  evidence.  State  v. 
Patton,  5  Ired.  180.  The  examination  of 
the  complainant  before  the  justices,  must 
have  been  had  within  three  yeai's  from  the 
birth  of  the  child.  State  v.  Ledbetter,  4 
Ired.  242. 

2.  "Warrant. 

12.  How  issued.  In  New  York,  the  war- 
rant issues  upon  the  complaint  of  the  over- 
seers of  the  poor,  or  either  of  them.  Wal- 
worth V.  McCullough,  10  Johns.  93. 

13.  Averment  in.  The  warrant  must  state 
truly  the  time  of  the  child's  birth.  But  if 
the  time  of  the  birth  be  stated  incorrectly, 
an  acquittal  will  not  bar  a  subsequent  pro- 
ceeding.    Burnett  v.  Cora.  4  Monr.  106. 

14.  How  far  evidence.  The  warrant  is 
evidence  of  the  arrest  of  the  accused,  and 
that  he  was  regularly  taken  before  the  mag- 
istrate.    Walker  v.  State,  5  Ga.  491. 

15.  Objection  to.  After  the  defendant 
lias  been  brought  before  the  magistrate,  and 


bound  by  a  recognizance  to  appear  at  court 
and  answer  the  charge,  it  is  too  late  to  object 
to  the  warrant.  Walker  v.  Com.  3  A.  K. 
Marsh,  355;  Schooler  v.  Com.  Litt.  Sel. 
Cas.  88. 

3.  Examination. 

16.  By  whom  had.  In  Massachusetts, 
the  magistrate  to  whom  the  complaint  is 
made  and  who  issues  the  warrant,  can  alone 
take  the  examination  of  the  defendant,  and 
the  warrant  cannot  be  returned  before 
another  magistrate.  Fisher  v.  Shattuck,  17 
Pick.  253. 

17.  In  Connecticut,  one  justice  may  enter- 
tain the  complaint  and  issue  the  warrant, 
and  another  hear  the  case  and  bind  over  the 
accused.  Hopkins  v.  Plainfield,  7  Conn. 
286. 

18.  In  "Vermont,  where  the  parties  are  non- 
residents, and  the  child  was  begotten  and 
born  out  of  the  State,  the  proceedings  will 
be  dismissed.  Graham  v.  Monsergh,  33  Vt. 
543. 

19.  Defendant  need  not  he  arraigned. 
It  is  not  a  good  objection  to  the  proceedings 
that  the  defendant  was  not  arraigned  and 
asked  whether  he  was  guilty  or  not  guilty. 
Smith  V.  Hayden,  6  Cush.  111. 

20.  "When  barred.  A  decision  in  favor 
of  the  defendant,  is  a  bar  to  a  subsequent 
proceeding  against  him  for  the  same  matter. 
Thayer  v.  Overseers  of  the  Poor,  5  Hill, 
443 ;  Davis  v.  State,  6  Blackf.  494. 

4.  Indictment. 

21.  Necessary  averments.  In  Georgia, 
an  indictment  for  bastardy  is  sufficient  which 
charges  that  the  defendant  is  the  father  of 
the  child  and  refuses  to  give  security  for  its 
maintenance  and  education.  Walker  v. 
State,  5  Ga.  491.  Locke  v.  State,  3  Kelly, 
534;  without  alleging  that  the  mother  is  a 
single  woman.  Smith  v.  State,  38  Ga.  19. 
In  Pennsylvania,  the  indictment  must  state 
the  sex  of  the  child.  Com.  v.  Pintard,  1 
Browne,  59  ;  and  in  Maryland,  the  residence 
of  the  mother  and  child.  Root  v.  State,  10 
Gill  &  Johns.  374. 

22.  In  South  Carolina,  in  an  indictment 
under  the  statute  of  1795,  it  need  not  be  al- 


74 


BASTARDY 


Indictment. 


Evidence. 


leged  that  tlie  defendant  refused  to  give  the 
security  required.  State  v.  Adams,  1  Brev. 
279.  The  indictment  must  aver  that  the 
mother  of  the  child  is  a  white  woman. 
State  V.  Clements,  1  Speer,  48.  Where  it 
only  charged  that  the  child  was  the  issue  of 
a  single  woman,  the  judgment  was  arrested. 
State  V.  Clarke,  2  Brev.  386.  Under  the  stat- 
ute of  1839,  two  indictments  will  lie  against 
the  putative  father  of  two  bastard  children 
born  at  one  birth;  but  the  indictments  and 
recognizances  must  describe  each  child  by 
name,  complexion,  hair  and  sex,  or  in  some 
other  way  identify  them.  State  v.  Derrick, 
1  McMuUan,  338.  The  indictment  need  not 
charge  that  the  child  is  likely  to  become  a 
])ul)lic  burden,  and  that  the  accused  re- 
fuses to  give  security  for  its  support.  State 
V.  McDonald,  2  McCord,  299. 

5.  Evidence.       J^ 

23.  Testimony  of  prosecutrix.  In  Maine 
and  Massachusetts,  the  woman  may  be  a 
witness  if  she  has  complied  with  the  statute 
and  been  constant  in  her  accusation.  The 
fact  that  she  had  before  charged  another 
person  with  being  the  father,  under  oath, 
and  in  the  same  form  in  which  she  does  the 
defendant,  will  not  exclude  her,  but  only  go 
to  her  credibility.  Burgess  v.  Bosworth,  23 
Maine,  735  ;  Bradford  v.  Paul,  18  lb.  30 ;  Max- 
well V.  Hardy,  8  Pick.  560.  She  will  not  be 
permitted  to  testify  to  any  fact  which  is 
equally  within  the  knowledge  of  other  dis- 
interested persons.  Drowne  v.  Stimpson,  2 
Mass.  441.  It  must  be  proved  by  other 
testimouy  than  that  of  the  woman,  that  she 
charged  the  defendant  in  the  time  of  her 
travail,  and  remained  constant  in  her  accu- 
sation. Drowne  v.  Stimpson,  3  Mass.  441 : 
Com.  V.  Cole,  5  lb.  517;  Dennett  v.  Knee- 
land,  6  Maine,  460. 

24.  In  Maine,  the  complainant,  to  be  a 
competent  witness,  is  not  required  to  make 
her  complaint  to  a  justice  previous  to  the 
birth  of  the  child.  Sweet  v.  Stubbs,  33 
Maine,  481.  The  burden  of  showing  the  in- 
constancy of  the  woman  in  her  accusation 
is  on  the  defendant.  Murphy  v.  Glidden, 
34  lb.  196. 

25.  In  Connecticut,  the  complainant  must 


have  charged  the  defendant  with  being  the 
father  of  her  child  during  her  travail.  War- 
ner V.  Willey,  2  Root,  490;  Hitchcock  v. 
Grant,  1  lb.  107.  But  where  the  town  pros- 
ecutes the  father,  this  is  unnecessary.  Davis 
r.  Salisbui-y,  1  Day,  278.  If  a  witness  intro- 
duced by  the  defendant  testifies  that  the 
complainant  in  conversation  with  him  stated 
that  the  defendant  was  not  the  father  of  the 
child,  she  is  a  competent  witness  to  contra- 
dict this  testimony.  Judson  v.  Blanchard, 
4  Conn.  557.  If  the  woman  die,  her  dei^o- 
sition  taken  ex  'parte  before  the  prosecution 
was  commenced  cannot  be  given  in  evi- 
dence.    McDonald  v.  Hobby,  1  Root,  154. 

26.  In  Ohio,  the  woman  must  be  present 
and  testify  on  the  trial,  unless  there  is  a  con- 
fession in  open  court.  Baxter  v.  Columbia 
Township,  16  Ohio,  56. 

27.  In  New  Hampshire,  the  woman  can 
only  be  a  witness  to  prove  the  criminal  con- 
nection, non-access  being  shown  by  other 
evidence.  Parker  v.  Way,  15  New  Hamp. 
45.  It  is  not  a  good  objection  to  a  witness, 
that  he  is  the  father  of  the  woman.  Marston 
V.  Jenness,  12  lb.  137. 

28.  In  New  York,  justices  of  the  peace 
may  commit  the  mother  of  an  illegitimate 
child  to  jail  for  refusing  to  discover  the 
father.     Scott  v.  Ely,  4  Wend.  555. 

29.  The  cross-examination  of  the  prose- 
cutrix as  to  the  circumstances  under  which 
the  defendant  had  connection  with  her  must 
be  limited  to  a  period  of  time  in  which  it  is 
probable  the  child  in  question  was  begotten. 
Barnett  v.  State,  10  Ark.  530.  Where  it  is 
proved  that  the  woman  made  contradictory 
statements,  she  may  introduce  evidence  to 
sustain  her  general  character  for  veracity. 
Sweet  V.  Sherman,  21  Vt.  23. 

30.  Birth  of  child.  In  Alabama,  the 
record  need  not  show  that  the  child  was  born 
alive  and  is  still  living.  Kawich  v.  Davis, 
4  Ala.  328.  In  Tennessee  the  record  must 
show  that  the  child  was  born  in  the  county 
in  which  the  proceedings  are  had.  Edmonds 
V.  State,  5  Humph.  94. 

31.  Non-access.  When  the  female  is  a 
married  woman,  non-access  or  impotence  of 
the  husband  must  be  proved.  Cora.  v. 
Shepherd,  6  Bum.  283. 


BASTARDY. 


75 


Evidence. 


Security. 


32.  A  child  born  in  wedlock  a  day  after 
marriage,  is  presumed  to  be  the  child  of  the 
husband.  State  v.  Herman,  13  Ired.  502. 
Evidence  to  show  the  resemblance  of  the 
child  to  the  reputed  father  or  the  absence  of 
it,  is  not  admissible.  Kenniston  v.  Rowe,  16 
Maine,  38. 

33.  Admissions.  The  admissions  of  the 
defendant  that  he  was  the  father  of  tbe 
child,  and  his  promise  to  marry  the  mother, 
are  competent  evidence  to  corroborate  the 
complainant.  Woodward  v.  Shaw,  18  Maine, 
304. 

34.  Impeachnieiit  of  prosecutrix.  The 
complainant  may  be  impeached,  by  disprov- 
ing what  she  swore  to  on  the  preliminary 
examination.     Holmes  v.  State,  1  Iowa,  150. 

35.  Intercourse  of  prosecutrix  with 
other  men.  Tlie  defendant  may  prove  that 
about  nine  months  before  the  birth  of  the 
child,  the  woman  had  criminal  intercourse 
with  other  men ;  but  not,  if  the  defendant 
admit  that  he  also  had  criminal  intercourse 
with  her  about  the  same  time.  Fall  agst. 
Overseers  of  tlie  Poor,  3  Munf.  495.  And 
the  woman  may  be  questioned  as  to  her  in- 
timacy with  other  men  about  the  time  she 
charges  the  defendant.  Ginn  v.  Com.  5 
Lilt,  801;  Short  v.  State,  4  Harring.  568; 
Sword  V.  Nestor,  3  Dana,  453 ;  State  v.  Coat- 
ney,  8  Yerg.  210;  contra^  Com.  v.  Moore,  3 
Pick.  194;  Low  v.  Mitchell,  18  Maine,  372. 
See  State  v.  Pettaway,  3  Haw'ks,  623. 

36.  Efforts  to  produce  an  abortion.  Evi- 
dence tiiat  the  mother  of  the  child  tried  to 
procure  an  abortion  is  not  admissible ;  nor 
that  another  man,  who  had  not  been  made 
a  witness,  endeavored  to  do  so.  Sweet  v. 
Sherman,  23  Vt.  23. 

37.  Character  of  defendant.  In  New 
Jersey,  on  the  hearing  of  an  appeal  to  the 
sessions,  the  defendant  may  show  his  former 
good  character.  Dally  v.  Overseers  of  Wood- 
bridge,  1  Zabr.  491. 

38.  What  proof  sufficient  to  convict. 
In  Illinois,  a  prosecution  for  bastardy  being 
in  the  nature  of  a  civil  proceeding,  a  pre- 
ponderance of  proof  is  sufficient  to  sustain 
a  conviction.  Where  it  is  proved  that  the 
woman  gave  birth  to  a  child  at  a  certain 
time,  it  will  be  presumed  that  the  child  was 


born  alive,  and  is  still  living.  Mann  v. 
People,  35  111.  467 ;  Maloney  v.  People,  38 
lb.  62 ;  Allison  v.  People,  45  lb.  37 ;  People 
V.  Christman,  66  lb.  162.  But  in  Alabama, 
it  was  held  erroneous  to  charge  the  jury  that 
if  the  prosecution  produced  a  preponderance 
of  evidence,  they  might  find  the  defendant 
guilty.     Satterwhite  v.  State,  28  Ala.  65. 

6.  Security. 

39.  Nature  and  effect.  In  Massachusetts, 
under  the  statute  of  1785,  ch.  66,  the  security 
must  be  a  bond,  and  not  a  recognizance. 
Merrill  v.  Prince,  7  Mass.  396 ;  Johnson  v. 
Randall,  lb.  340.  In  Maine,  there  must  be 
a  bond  with  sureties  to  appear  and  abide 
by  the  order  of  the  court,  and  to  give  a  new 
bond  for  the  performance  of  such  order. 
Mariner  v.  Dyer,  2  Greenlf.  165 ;  Taylor  v. 
Hughes,  3  Dj.  433. 

40.  The  bond  required  by  the  statute  of 
New  York,  in  a  case  of  bastardy,  is  intended 
to  secure  the  appearance  and  presence  of  the 
person  charged  not  only  at  the  adjourned 
day,  but  his  continued  appearance  and  at- 
tendance until  the  examination  and  subse- 
quent proceedings  are  finally  closed.  Where 
the  accused,  after  appearing  at  the  place  of 
examination,  absents  himself  therefrom,  it 
amounts  to  a  breach  of  the  bond,  which  is 
not  cured  by  his  return  the  next  morning 
and  oSer  to  submit  himself  to  imprisonment 
ujjon  notice  of  an  order  of  filiation.  Peojjle' 
V.  Jayne,  27  Barb.  58. 

41.  When  the  condition  of  the  bond  is 
that  the  defendant  shall  appear  and  not  de- 
part until  discharged  by  the  court,  the  sure- 
ties are  bound  to  take  care  that  he  remains 
during  the  term  to  answer  any  charge 
other  than  the  one  on  which  the  prosecution 
is  founded.  But  if  the  defendant  appear 
and  answer,  a  default  at  the  next  term  will 
not  be  a  breach.  People  v.  Green,  5  Hill, 
647. 

42.  A  recognizance  requiring  the  putative 
father  of  a  bastard  child  to  a{)pear  at  the 
sessions  and  abide  such  order  as  shall  be 
made  for  the  relief  of  the  town  in  which  the 
child  was  born,  remains  in  force,  althougli 
after  the  time  of  entering  into  the  recogni- 
zance the  distinction  between  the  town  and 


iG 


BASTARDY. 


Security.        Settlement  of  Prosecution. 


Concealing  Death  of  Bastard  Child. 


county  poor  is  abolished,  and  the  child  there- 
upon becomes  a  county  charge.  People  v. 
Haddock,  12  Wend.  475. 

43.  In  Georgia,  it  is  the  duty  of  the  mag- 
istrate to  require  the  defendant  to  give  se- 
curity for  the  maintenance  and  education  of 
the  child;  and  if  he  refuses  or  fails  to  do  so, 
to  recognize  him  to  appear  at  the  next  Supe- 
rior Court  to  answer  the  charge.  Walker  v. 
State,  5  Ga.  491. 

44.  In  Kentucky,  under  the  statute  giving 
to  the  magistrate  authority  to  bind  the  de- 
fendant in  a  recognizance  to  appear  at  the 
next  county  court,  it  w^ill  be  error  to  bind 
him  to  abide  by  and  perform  the  order  of 
the  county  court.  Young  v.  Com.  2  A.  K. 
Marsh.  fjS. 

45.  A  bond  is  bad  which,  in  addition  to 
the  provisions  required  by  law,  contains 
others  imposing  further  conditions  on  the 
obligor.     People  v.  Meighan,  1  Hill,  298. 

46.  Date.  The  recognizance  may  be  dated 
as  of  the  day  on  which  the  defendant  is  rec- 
ognized to  appear.  State  v.  Bradley,  1 
Black f.  83.     See  Bail  and  recognizance. 


7.  Settlement  of  prosecution. 

47.  When  allowed.  As  bastardy  is  only 
a  misdemeanor,  it  may  be  settled  by  the 
parties.     Coleman  v.  Frum,  3  Scam.  378. 

48.  In  New  Hampshire,  although  the 
form  of  the  proceedings  is  criminal,  the 
parties  may,  if  they  choose,  settle  the  prose- 
cution. But  the  town  may  come  in  and 
l^rosecute.  Parker  v.  Way,  15  New  Hamp. 
45. 

49.  In  Vermont,  the  mother  of  the  child 
may  compromise  with  the  defendant  three 
months  after  the  arrest,  and  before  the  over- 
seers of  the  town  take  the  control  and  man- 
agement of  the  prosecution.  Hurd  v. 
Seeker,  12  Vt.  364. 

50.  When  not  allowed.  In  Kentucky, 
though  the  mother  of  a  bastard  child  is  not 
obliged  to  commence  proceedings  against 
the  putative  father,  yet,  whenever  at  h^r 
instance,  they  have  been  commenced,  she 
cannot,  by  any  agreement  between  her  and 
the  defendant,  stop  the  proceedings.  Com. 
V.  Turner,  4  Dana,  511. 


51.  Payment  of  fees  and  expenses.  Al- 
though the  defendant  offers  to  pay  what  the 
woman  deems  satisfactory,  he  will  not  be 
entitled  to  his  discharge  until  the  fees  and 
expenses  of  the  officer  are  paid.  Pearl  v. 
Eawlin,  5  Day,  244.  In  New  York,  if  the 
defendant  refuse  to  pay  the  amount  certi- 
fied for  the  costs,  the  justices  may  issue  a 
warrant  for  his  commitment,  though  he  has 
executed  a  bond.  People  v.  Stowell,  2 
Denio,  127.  In  Massachusetts,  if  the  defend- 
ant does  not  comply  with  the  order  requir- 
ing him  to  support  the  child,  he  may  be 
committed  to  jail  until  he  does  so.  Wood- 
cock V.  Walker,  14  Mass.  386. 

52.  Marriage  of  prosecutrix.  The  mar- 
riage of  the  mother  of  the  child,  subsequent 
to  complaint,  will  not  abate  the  prosecution. 
Austin  V.  Pickett,  9  Ala.  102. 

53.  Defendant  taking  poor  debtor's 
oath.  In  Maine,  the  discharge  of  the  ac- 
cused on  taking  the  poor  debtor's  oath,  will 
not  prevent  his  body  from  being  taken  on 
execution  issued  upon  a  judgment  recovered 
on  the  bond.  McLaughlin  v.  Whitten,  32 
Maine,  21. 

54.  Pardon.  If  after  conviction,  the  ac- 
cused is  pardoned,  the  court  may,  notwith- 
standing, make  an  order  for  the  maintenance 
of  the  child.  Com.  v.  Duncan,  4  Serg.  & 
Rawle,  449. 

8.  Concealing  death  of  bastard  child. 

55.  Child  must  have  been  born  alive. 

The  offense  consists  in  concealing  the  death 
of  a  being  upon  whom  the  crime  of  murder 
could  have  been  committed.  Therefore,  if 
the  child  be  born  dead,  its  concealment  is 
not  a  crime.  State  v.  Joiner,  4  Hawks,  550, 
In  South  Carolina,  when  it  was  proved  that 
the  mother  concealed  her  illegitimate  child 
after  its  death,  but  there  was  also  some  evi- 
dence that  the  child  was  still-born,  she  was 
acquitted.     State  v.  Love,  1  Bay,  167. 

56.  In  Maine,  on  the  trial  of  an  indict- 
ment under  the  statute  (R.  S.  ch.  124,  §  7), 
which  provides  that  "  if  any  woman  is  will- 
ingly delivered  in  secret  of  the  issue  of  her 
body,  which  would  be  a  bastard  if  born 
alive,  and  conceals  the  death  thereof,  so  that 
it  is  not  known  whether  it  was  born  dead 


BIGAMY. 


77 


Concealing  Death  of  Bastard  Child.       Who  may  Commit. 


When  Committed. 


or  alive,  and  was  murdered,  she  shall  be 
punished,"  &c.,  it  was  proved  that  the  pris- 
oner was  delivered  in  secret  of  such  issue, 
still-boru,  and  concealed  the  same  by  throw- 
ing it  into  a  vault,  where  it  was  discovered 
the  same  day  and  examined  by  inquest, 
when  it  appeared  that  the  child  had  been 
dead  several  days  before  the  birth.  Held 
that  the  prisoner  was  entitled  to  an  acquit- 
tal.    State  V.  Kirby,  57  Maine,  30. 

57.  Indictment.  The  indictment  must 
allege  the  death  of  the  child.  Douglass  v. 
Com.  8  Watts,  538.  It  need  not  state  the 
manner  in  which  the  defendant  endeavored 
to  conceal  the  death  of  the  child.  The  fol- 
lowing averment  was  held  sufficient,  that 
"  the  child  having  died  on  the  day  and  year, 
&c.,  the  mother  did  endeavor  privately  to 
conceal  the  death  of  said  child."  Boyles  v. 
Com.  2  Serg.  &  Rawle,  40. 

58.  Evidence.  The  prosecution  must 
prove  the  birth,  death,  and  concealment  of 
the  death.  Com.  v.  Clark,  3  Ashm.  105. 
And  that  the  defendant  willfully  and  mali- 
ciously destroyed  the  child.  Pennsylvania 
V.  McKee,  Addis.  1. 


See  Nuisance. 


1.  Who  mat  commit. 

2.  When  committed. 

3.  Indictment. 

4.  Evidence. 


1,  Who  MAY  commit. 

1.  Nephew.  In  South  Carolina,  it  was 
held  that  a  nephew  might  lawfully  marry 
his  aunt,  so  that  if  he  married  again  while 
she  was  alive,  it  was  bigamy.  State  v.  Bare- 
foot, 2  Rich.  209. 

2.  Emancipated  slave.  If  parties  were 
married  according  to  the  usages  and  cus- 
toms of  slaves,  and  after  their  emancipation 
continued  to  live  together  as  husband  and 
wife,  it  was  a  legal    assent  to  and   ratifica- 


tion of  the  marriage,  and  the  marrying- 
another  while  the  first  marriage  existed 
would  be  bigamy.  McReynolds  v.  State,  5 
Cold.  Tenn.  18.  ^ 

3.  Infant.  In  Ohio,  the  marriage  of  a 
male  under  the  age  of  eighteen,  with  a 
female  under  fourteen,  does  not  make  the 
parties  liable  for  bigamy  by  contracting  sub- 
sequent marriage  while  the  first  husband  or 
wife  is  living,  unless  the  first  marriage  was 
followed  by  cohabitation  after  arriving  at 
those  ages  respectively.  Shafher  v.  State, 
20  Ohio,  1. 

4.  In  Michigan,  under  the  statute,  when 
a  person  of  full  age  marries  another  under 
the  age  of  legal  consent,  and  they  separate 
before  the  minor  reaches  lawful  age,  and 
do  not  cohabit  afterward,  or  when  the  minor 
reftises  consent  on  attaining  lawful  age,  such 
marriage  is  void,  and  the  parties  may  marry 
again  without  being  amenable  to  the  charge 
of  bigamy.     People  v.  Slack,  15  Mich.  193. 

2.  When  committed. 

5.  In  case  of  divorce.  In  Massachusetts, 
after  a  husband  has  been  divorced  from  his. 
wife  on  account  of  adultery,  if  he  marry 
again  he  is  not  liable  for  adultery.  In  such 
case  he  should  be  indicted  under  the  statute 
for  polygamy,  and  the  second  marriage, 
together  with  all  the  facts  constituting  the 
oifense,  should  be  set  forth  in  the  indict- 
ment. Com.  v.  Putnam,  1  Pick.  136.  But 
if  the  second  marriage  take  place  in  an- 
other State,  and  it  is  lawfully  contracted 
there,  he  is  not  liable,  though  he  cohabit 
with  his  second  wife  in  Massachusetts.  Put- 
nam V.  Putnam,  8  Pick.  433. 

6.  Where  a  man  having  been  lawfully 
married  to  his  first  wife  in  Massachusetts 
and  divorced  from  her  for  his  adultery, 
afterward  while  still  a  resident  of  Massa- 
chusetts marries  again  in  another  State,  and 
cohabits  with  her  in  Massachusetts,  the  first 
wife  being  still  alive,  he  is  not  guilty  of 
polygamy  under  the  statute  (Gen.  Stats,  of 
Mass.  ch.  1G5,  §  4)  unless  the  second  wife 
was  a  resident  of  Massachusetts,  and  the 
parties  went  into  the  other  State  to  evade 
the  law.     Com.  v.  Lane,  113  Mass.  458. 

7.  In  New  York,  it  is  not  a  defense  to  an 


78 


BIGAMY. 


When  Committed. 


Indictment. 


indictment  for  bigamy,  that  after  the  second 
marriage  the  first  was  dissolved  by  the 
decree  of  a  competent  court,  for  some  caixse 
other  than  the  adultery  of  the  defendant. 
But  otherwise  if  the  decree  was  obtained 
before  the  second  marriage.  Baker  v.  Peo- 
ple, 2  Hill,  325. 

8.  A  decree  of  divorce  obtained  in  Arkan- 
sas, by  a  citizen  of  Alabama,  would  be  void, 
and  would  constitute  no  defense  to  a  prose- 
cution in  Alabama  for  polygamy  if  the 
decree  was  procured  by  fraud,  or  if  the 
defendant  went  to  Arkansas  merely  for  the 
purpose  of  obtaining  a  divorce,  and  with 
the  intention  of  remaining  no  longer  than 
was  necessary  to  accomplish  that  purpose. 
Thompson  v.  State,  28  Ala.  12. 

9.  In  Indiana,  it  was  held  that  the  court 
ought,  if  requested,  on  a  trial  for  bigamy,  to 
charge  the  jury  that  if  they  believed  from 
the  evidence  that  the  defendant  had  been 
informed  that  his  wife  had  been  divorced, 
and  that  he  had  used  due  care  and  made 
due  inquiry  to  ascertain  the  truth,  and  had, 
considering  all  the  circumstances,  reason  to 
believe,  and  did  believe  at  the  time  of  his 
second  marriage,  that  his  former  wife  had 
been  divorced  from  him,  they  should  find 
him  not  guilty.  Squire  v.  State,  46  Ind. 
459 ;  s.  c.  3  Green's  Crim.  Reps.  725. 

10.  In  case  of  absence.  In  Massachu- 
setts, the  statute  (R.  S.  cb.  130)  does  not 
make  the  legality  of  a  second  marriage 
whilst  the  former  husband  or  wife  is  in  fact 
living,  depend  upon  ignorance  of  such  ab- 
sent party's  being  alive,  or  upon  an  honest 
belief  of  such  person's  death.  Accordingly, 
where  a  husband  suddenly  left  his  wife  say- 
ing that  he  would  return  immediately,  and 
was  absent  three  or  four  years,  and  she 
married  again,  it  was  held  that  she  was 
guilty  of  bigamy,  notwithstanding  she  had 
made  inquiry  after  her  husband,  and  did  not 
know  that  he  was  alive,  but  honestly  sup- 
posed that  he  was  dead.  Com.  v.  Mash,  7 
Mete.  472. 

11.  In  North  Carolina,  bigamy  does  not 
apply  to  any  person  whose  husband  or  wife 
shall  continually  remain  beyond  sea  for 
seven  years  together,  nor  to  any  person 
whose  husband  or  wife  shall  absent  him  or 


herself  in  any  other  manner  for  seven  years 
together,  such  person  not  knowing  his  or 
her  husband  or  wife  to  be  alive  within  the 
time.     State  v.  Patterson,  2  Ired.  346. 

12.  Place  of  marriage.  In  New  York, 
bigamy  cannot  be  punished  as  an  offense 
unless  the  second  marriage  was  within  the 
State.     People  v.  Mosher,  2  Parker,  195. 

3.  Indictment. 

13.  Immaterial  averments.  An  indict- 
ment for  bigamy  need  not  state  the  place 
where  the  first  marriage  took  place.  State 
V.  Bray,  13  Ired.  289;  by  whom  it  was 
solemnized,  or  the  maiden  name  of  the  first 
wife.  Hutchins  v.  State,  28  Ind.  34;  or 
contain  the  words  "  with  force  and  arms." 
State  V.  Kean,  10  New  Hamp.  347. 

14.  An"  indictment  for  bigamy  which 
charges  that  the  wife  was  alive  at  the  second 
marriage,  need  not  allege  that  the  first  mar- 
riage then  subsisted.  State  v.  Norman,  2 
Dev.  222. 

15.  An  indictment  for  bigamy  is  suffi 
cient,  although  it  does  not  negative  the  ex- 
ceptions referred  to  in  the  statute  defining 
the  offense.  The  averment  and  the  proof  to 
justify  a  second  marriage  in  such  case  are 
to  come  from  the  defendant.  Fleming  v. 
People,  27  N.  Y.  329. 

16.  Where  tried.  An  indictment  for 
polygamy  was  found,  and  the  offense  alleged 
to  have  been  committed  in  the  county  of 
K.  The  defendant  pleaded  in  abatement 
to  the  jurisdiction  of  the  court,  that  at  the 
finding  of  the  indictment  he  resided  in  B., 
in  the  county  of  Y.,  and  was  apprehended 
in  said  town.  Held  that  the  plea  was  bad, 
the  statute  (R.  S.  of  Maine,  ch.  424,  §  4) 
providing  that  "the  indictment  for  such 
offense  may  be  found  and  tried  in  the 
county  where  the  offender  resides,  or  where 
he  is  apprehended,"  being  permissive  and 
not  mandatory.  State  v.  Sweetsir,  53  Maine, 
438. 

17.  In  New  York,  a  person  was  indicted, 
tried  and  convicted  of  bigamy  in  0.  county. 
It  appearing  that  the  offense  was  not  com- 
mitted in  O.  county  nor  the  prisoner  appre- 
hended there,  but  that  the  second  marriage 
took   place   in    Y.    county,    and    that    the 


BIGAMY. 


70 


Evidence. 


prisoner  was  apprehended  in  that  county, 
the  conviction  was  reversed  and  the  prisoner 
discharged.  Collins  v.  People,  4  N.  Y. 
Supm.  N.  S.  77;  8  lb.  610. 

4.  Evidence.  w 

18.  Must  be  proof  of  marriage.  If  par- 
ties competent  to  contract,  in  the  presence 
of  witnesses,  agree  to  be  husband  and  wife, 
and  afterward  cohabit  and  recognize  each 
other  as  such,  it  is  a  sufficient  marriage  to 
sustain  an  indictment  for  bigamy  in  the 
event  of  one  of  the  parties  having  before 
that  time  married  another  who  is  still  living. 
Hayes  v.  People,  25  N.  Y.  390. 

19.  Marriage  may  be  entered  into  in  any 
manner  which  clearly  evinces  the  intention  of 
the  parties.  It  was  proved  that  the  prisoner 
introduced  to  the  complainant  a  person 
whom  he  represented  to  be  a  minister,  and 
who"  conducted  a  marriage  ceremony  be- 
tween them  as  a  minister.  There  was  no 
proof,  however,  that  he  was  in  fact  a  clergy- 
man, or  authorized  by  law  to  certify  a  mar- 
riage. The  ceremony  was  followed  by 
cohabitation.  Held  that  the  proof  of  mar- 
riage was  suiEcient.  Hayes  v.  People,  5 
Parker,  325 ;   s.  c.  25  N.  Y.  390. 

20.  In  Ohio,  on  a  trial  for  bigamy,  the 
consent  of  parties  to  become  husband  and 
wife,  followed  by  cohabitation  as  such,  is 
sufficient  proof  of  the  second  marriage  to 
authorize  a  conviction.  Carmichael  v.  State, 
13  Ohio,  N.  S.  553. 

21.  Marriage  to  avoid  imprisonment  is  not 
void  when  the  inducement  to  the  marriage 
was  not  the  fear  of  imprisonment,  but  arose 
from  the  arrest  and  prosecution  of  the  party 
for  bastardy.     Williams  v.  State,  44  Ala.  42. 

22.  Where  on  a  prosecution  for  bigamy 
the  first  marriage  is  charged  to  have  been 
celebrated  in  another  State,  a  marriage  in 
fact  must  be  proved  according  to  the  law  of 
that  State,  and  it  will  not  be  presumed  that 
such  law  is  like  our  own.  People  v.  Lam- 
bert, 5  Mich.  849. 

23.  On  the  trial  of  an  indictment  for 
polygamy,  evidence  of  the  former  marriage 
of  the  defendant  in  England  may  be  proved 
by  the  general  repute  there,  in  connection 
with  other  evidence.     Com.  v.  Johnson,  10 


Allen,  196.  In  such  case,  the  fact  that  the 
defendant's  wife  "  has  been  continually  re- 
maining beyond  sea  for  the  last  year,  at  her 
usual  place  of  abode  (he  having  deserted 
her  and  come  to  this  country),  is  no  de- 
fense,    lb. 

24.  Oral  proof  of  the  official  character  of 
the  person  before  whom  the  marriage  was 
solemnized  is  prima  facie  evidence  of  his 
authority.  Case  of  Damon,  6  Maine,  148. 
But  where  a  marriage  to  be  valid  must  be 
entered  into  as  a  civil  contract  before^  a 
magistrate,  it  was  held  erroneous  for  the 
court  to  charge  the  jury  that  if  they  were 
satisfied  of  the  performance  of  the  religious 
ceremony,  and  that  the  priest  who  officiated 
was  liable  to  severe  penalties  for  performing 
it  unless  the  civil  marriage  had  taken  place, 
they  would  be  authorized  to  infer  that  the 
latter  had  been  previously  performed  ac- 
cording to  law.  Weinberg  v.  State,  25 
Wis.  370. 

25.  Where  an  information  for  bigamy 
charges  that  the  first  marriage  took  place  in 
Brooklyn,  and  it  is  proved  that  it  occurred 
in  the  city  of  New  York,  the  variance  is  not 
material  unless  the  defendant  was  thereby 
misled.     People  v.  Calder,  30  Mich.  85. 

26.  License  and  certificate.  In  Illinois, 
the  marriage  may  be  proved  by  the  license 
and  certificate,  or  by  such  other  evidence  as 
is  competent  to  prove  a  marriage  in  other 
cases.  Jackson  v.  People,  2  Scam.  231.  In 
Virginia,  parol  proof  of  a  license  of  mar- 
riage may  be  given,  although  it  be  in  the 
power  of  the  prosecution  to  produce  the 
license;  and  the  certificate  of  marriage  is 
competent  evidence  against  the  prisoner, 
although  it  does  not  show  on  its  face  that 
the  person  whose  name  is  subscribed  to  it 
was  a  person  authorized  to  perform  the  mar- 
riage ceremony.  Moore's  Case,  9  Leigh,  639. 
And  see  Squire  v.  State,  4G  Ind.  439;  s.  c.  2 
Green's  Crim.  Reps.  725. 

27.  Where,  on  a  prosecution  for  bigamy, 
a  paper  puporting  to  be  the  certificate  of  the 
first  marriage  bore  no  date,  and  neither  de- 
clared where  the  marriage  took  place  nor 
showed  where  the  clergyman  resided,  and  it 
appeared  to  have  been  made  after  the 
prisoner  was   arrested,  it  was  held  not  ad- 


V 


80 


BIGAMY. 


Evidence. 


A 


missible  for  any  purpose.  People  v.  Lambert, 
5  Mich.  349. 

28.  To  make  a  marriage  certificate  signed 
by  a  justice  of  the  peace  in  another  State 
evidence  of  the  marriage  on  a  trial  for 
bigamy,  such  person  must  be  proved  to  have 
been  a  justice,  and  to  have  been  authorized 
to  solemnize  marriages,  and  that  his  signa- 
ture is  genuine.  The  testimony  of  a  witness 
that  he  wrote  a  letter  on  the  subject  of  said 
marriage  to  the  address  of  the  person  whose 
name  was  signed  to  the  certificate,  and 
received  a  reply  thereto,  which  is  in  the 
handwriting  of  the  certificate  and  signature, 
is  not  legal  evidence  that  the  certificate  was 
signed  by  the  person  which  it  purports. 
State  V.  Horn,  43  Vt.  20. 

29.  The  transcript  of  a  record  or  registry 
of  the  marriage   of  a   person  in  a   foreign 

/  country,  in  the  absence  of  any  proof  that 
'  the  transcript  and  its  authentications  were 
made  by  the  authority  of,  or  in  conformity 
with  the  laws  of  such  country,  is  not  prima 
facie  evidence  of  the  fact  and  legality  of  the 
marriage.  Stanglein  v.  State,  17  Oliio,  N. 
^      S.  453. 

30.  On  a  trial  for  bigamy,  in  order  to 
prove  the  first  marriage,  a  document  was 
jjroduced  purporting  to  be  a  copy  of  an 
entry  in  the  marriage  register  in  the  office 
of  the  superintendent  registrar  of  the  dis- 
trict of  Mohill,  IVeland,  and  was  signed  by 
W.,  in  his  official  capacity  of  such  registrar. 
But  it  did  not  appear  that  the  laws  of 
Ireland  required  the  registration  of  mar- 
riages, or  that  W.  was  the  superintendent 
registrar  at  the  time  the  certificate  was  given, 
if  there  was  such  record,  or  that  his  sig- 
nature was  genuine  if  he  was  such  an  officer. 
Held^  that  its  admission  in  evidence  was  er- 
ror. State  v.  Dooris,  40  Conn.  145 ;  s.  c.  2 
Green's  Crim.  Reps.  492. 

31.  Testimony  of  persons  present  at 
ceremony.  The  marriage  may  be  proved  by 
a  person  who  w'as  present  at  the  ceremony. 
Warner  v.  Com.  2  Va.  Cas.  95;  State  v. 
Kean,  10  New  Hamp.  347;  State  v.Williams, 
20  Iowa,  98.  Proof  that  the  parties  went 
together  to  a  church;  that  the  officiating 
minister,  in  the  presence  of  spectators, 
performed  the  marriage  ceremony,  and  that 


the  parties  apjieared  to  consider  themselves 
married,  is  presumptive  evidence  that  the 
ceremony  was  regular  and  legal.  People  v. 
Calder,  30  Mich.  85. 

32.  Wife  as  witness.  In  a  prosecution 
for  bigamy,  the  lawful  wife  is  not  a  compe- 
tent witness  against  her  husband.  Williams 
V.  State,  44  Ala.  42.  But  it  is  otherwise  as 
to  the  woman  with  whom  he  committed  the 
oflense.  State  v.  McDavid,  15  La.  An.  403 ; 
State  V.  Patterson,  2  Ired.  346. 

33.  The  prosecution  may  inquire  of  the 
prosecutrix  as  to  the  place  and  manner  of 
her  living  immediately  after  her  alleged 
marriage  to  the  prisoner,  in  corroboration  of 
her  testimony  as  to  tho  actual  marriage. 
Hayes  v.  People,  25  N.  Y.  390.  ^ 

34.  Confession  of  defendant.  On  a  trial  / 
for  bigamy  the  first  marriage  may  be  proved  / 
by  cohabitation  and  the  confessions  of  the  S 
prisoner  without  the  production  of  the  V 
record  or  the  testimony  of  a  witness   who      i 


was  present  at  the  ceremony.  Langtry  v. 
State,  30  Ala.  536 ;  State  v.  Abbey,  29  Vt. 
60 ;  Finney  v.  State,  3  Head,  544 ;  Wolver- 
ton  V.  State,  16  Ohio,  173 ;  Com.  v.  Murtagh, 
1  Ashm.  272 ;  Warner  v.  Com.  2  Va.  Cas.  95 ; 
O'Neale  v.  Com.  17  Gratt.  582;  State  v. 
Seals,  16  Ind.  352 ;  Squire  v.  State,  46  lb. 
459 ;  s.  c.  2  Green's  Crim.  Reps.  725 ;  State 
V.  Britton,  4  McCord,  256 ;  State  v.  Hilton, 
3  Rich.  434  ;  Stanglein  v.  State,  17  Ohio,  N. 
S.  453. 

35.  Where,  on  a  trial  for  bigamy,  the 
accused  claimed  that  the  marriage  ceremony 
was  a  mock  one,  it  was  held  that  a  letter 
written  by  him  to  the  woman,  in  which  he 
represented  the  contrary,  was  admissible 
against  bim.     State  v.  Horn,  ^3  Vt.  20. 

36.  In  New  York,  the  confessions  of  the 
defendant,  though  corroborated  by  proof  of 
cohabitation  and  reputation,  are  not  suffi- 
cient to  show  the  first  marriage,  proof  of 
actual  marriage,  either  by  the  record  or  by 
the  evidence  of  an  eye-witness,  being  neces- 
sary, Goghagan  v.  People,  1  Parker,  378. 
And  the  same  seems  to  be  the  case  in  Michi- 
gan and  Minnesota.  People  v.  Lambert,  5 
Mich.  349 ;  State  v.  Armstrong,  4  Minn.  335  ;^ 
State  V.  Johnson,  12  lb.  476. 

37.  Proof  that  first   wife   was   living. 


BIGAMY.— BILL   OF   EXCEPTIONS. 


81 


Evidence. 


Nature  and  Office. 


The  fact  that  the  first  wife  was  living  at  the 
time  of  the  second  marriage,  may  be  proved 
by  circumstantial  evidence.  Gorman  v.  State, 
23  Texas,  646.  On  a  trial  for  bigamy  there 
was  no  direct  evidence  that  the  first  wife  of 
the  defendant  was  alive  at  the  time  of  the 
second  marriage,  though  it  was  established 
by  the  admissions  of  the  defendant  that  she 
was  living  two  years  previous  thereto.  Held, 
that  the  presumption  of  the  continuance  of 
life  was  neutralized  by  the  presumption  of 
the  innocence  of  the  defendant.  Squire  v. 
State,  46  Ind.  459 ;  s.  c.  2  Green's  Grim. 
Reps.  725. 

38.  Testimony   for   defense.     If  on   the 

trial   of    an   indictment   for  polygamy   the 

defense  is  a  previous  divorce,  the  defendant 

must  prove  it.     Com.  v.  Boyer,  7  Allen,  306. 

.    39.  The  prosecution  need  not  show  that 

j  the  first  wife  was  not  absent  for  five  succes- 

i   sive   years    without    being    known   to   the 

^  defendant  within  that  time  to  be  living,  nor 

j  prove  that  at  the  time  of  the  second  mar- 

jriage  the  defendant  did  not  come  within  any 

'  of  the  other  exceptions  mentioned    in  the 

statute.     Fleming  v.  People,  27  N.  Y.  329. 


Sill  of  (exceptions. 

1.  Nature  and  office. 

2.  What  it  shoui,d  contain. 

3.  Settlement. 

4.  Effect. 


1.  Xatcre  and  office. 

1.  Meaning.  An  exception  is  a  formal 
protest  against  the  ruling  of  the  court  upon 
a  question  of  law,  and  a  bill  of  exceptions 
is  a  written  statement,  settled  and  signed  by 
the  judge  of  what  the  ruling  was,  the  facts 
in  view  of  which  it  was  made,  and  the  pro- 
test of  counsel.  People  v.  Torres,  38  Cal. 
141.  An  alleged  error  in  the  charge  to  the 
jury  will  not  be  noticed  unless  the  party 
objecting  excepts,  and  by  a  bill  of  excep- 
tions places  the  objectionable  charge  on  the 
record.  Wash  v.  State,  14  Sm.  &  Marsh. 
120;  Com.  v.  Kneehind,  20  Pick.  206. 

2.  In  New  York.  Bills  of  exceptions  in 
criminal  cases  wen.'  unknown  to  the  common 

6 


law.  Their  office  is  to  bring  up  for  review 
questions  of  law  made  and  decided  on  the 
trial.  The  statute  of  Nev/  York  whicli 
gives  the  right  limits  it  to  exceptions  taken 
on  the  trial  of  the  main  issue,  and  does  not 
extend  to  such  as  are  taken  on  the  trial  of 
preliminary  or  collateral  questions.  Wyn- 
hamer  v.  People,  20  Barb.  537  ;  People  v. 
Gardiner,  6  Parker,  143. 

3.  In  New  York,  before  exceptions  were 
given  by  statute,  it  was  the  practice  of  the; 
inferior  courts  to  suspend  sentence  after 
conviction  to  ask  the  advice  of  the  Supreme 
Court  in  respect  to  difiicult  or  important 
questions  of  law  which  had  arisen  on  the 
trial.  Applications  of  this  kind  are  still 
sometimes  made  and  entertained.  People 
V.  Bruno,  6  Parker,  657.  But  since  the 
Revised  Statutes,  the  defendant  is  allowed 
to  make  a  bill  of  exceptions,  as  in  civil 
cases,  and  to  have  the  exceptions  examined 
upon  a  writ  of  error,  and  the  former  practice 
to  suspend  judgment  until  the  advice  of  the 
Supreme  Court  could  be  obtained,  has  for 
the  most  part  fallen  into  disuse.  People  v. 
Cummings,  3  Parker,  343. 

4.  "When  it  will  lie.  Where,  upon  a 
challenge  for  favor,  the  court  errs  in  admit- 
ting or  rejecting  evidence,  or  in  instructing 
the  triers  upon  questions  of  law,  a  bill  of 
exceptions  will  lie.  People  v.  Bodine,  1 
Denio,  281. 

5.  An  exception  will  lie  to  the  admission 
or  exclusion  of  evidence ;  to  the  granting  or 
refusing  a  nonsuit ;  to  charging,  or  refusing 
to  charge  the  jury  on  a  specific  proposition ; 
or  in  deciding  any  question  on  the  trial 
going  to  the  merits.  But  that  which  has 
reference  to  the  manner  of  conducting  the 
trial;  to  the  forms  of  the  questions  asked, 
and  to  the  range  allowed  counsel  in  their  ar- 
guments, are  matters  of  discretion,  and  not 
subject  to  exception.  People  v.  Finnegan, 
1  Parker,  147 :  People  v.  Stockham,  lb.  424 ; 
Saffbrd  v.  People,  lb.  474. 

6.  Although  the  judge  neglects  to  give 
the  instruction  which  counsel,  in  addressing 
the  jury,  claimed,  it  is  not  a  grouud  for  ex- 
ceptions, unless  the  judge  was  requested  to 
give  such  instructions.  State  v.  Straw,  38 
Maine,  554. 


82 


BILL   OF   EXCEPTIONS. 


Nature  and  Office. 


What  it  should  Contain. 


Settlement. 


7.  It  is  not  cause  for  exception  that  the 
court  charged  the  jury  that  if  any  of  them 
clift'ered  in  their  views  of  the  evidence,  from 
the  majority  of  their  fellows,  they  ought  to 
distrust  the  correctness  of  their  own  judg- 
ments, and  be  led  to  examine  the  facts  of  the 
case  for  the  purpose  of  correcting  their 
opinions.     Com.  v.  Tuey,  8  Cush.  1. 

8.  When  the  judge,  in  his  charge  to  the 
jury,  expresses  an  opinion  as  to  the  efi'ect  of 
the  evidence,  leaving  the  jury  to  decide  the 
question,  it  is  not  good  ground  of  exception ; 
otherwise,  if  the  language  which  is  the  sub- 
ject of  exception,  amounts  to  an  instruction 
as  to  the  law  applicable  to  the  evidence  in 
the  case.     Peoijle  v.  Quin,  1  Parker,  340. 

9.  "Waiver.  When  three  being  indicted, 
ask  for  separate  trials,  whether  by  so  doing 
they  do  not  waive  tlie  riglit  of  exception  to 
the  indictment,  on  the  ground  that  it  was  not 
legally  found — query.  Com.  v.  Chauncey, 
2  Ashm.  90. 

10.  Where  no  bill  of  exceptions  is  sent  up 
with  the  record  of  a  case,  the  judgment  be- 
low is  affirmed,  as  of  course,  there  appearing 
no  error  in  the  record.  State  v.  Orrell,  Bus- 
bee,  N.  C.  217. 

2.  What  it  should  contain. 

11.  Must  set  out  the  evidence.  The 
party  excepting  to  the  refusal  of  the  court 
to  admit  evidence,  should,  in  order  to  avail 
himself  of  the  error,  state  what  he  expected 
or  believed  the  witness  would  testify,  and 
let  the  bill  of  exceptions  show  it,  in  order 
that  the  appellate  court  may  see  that  the  evi- 
dence was  material.  Tipper  v.  Com.  1  Mete. 
Ky.  6. 

12.  Assignments  of  error  that  the  court 
peiTnitted  improper  questions  to  be  answer- 
ed, will  not  be  considered,  unless  the  record 
shows  the  answers  given,  or  that  they  prej- 
udiced the  defendant.  Jhons  v.  People, 
25  Mich.  499. 

13.  Where  the  defendant  was  tried  for  a 
libel,  and  the  bill  of  exceptions  did  not  re- 
cite the  evidence,  it  was  held  that  the  court 
must  presume  that  the  evidence  sustained 
the  verdict,  and  that  there  was  no  variance. 
Melton  v.  State,  3  Humph.  389. 

14.  A  bill  of  exceptions,  after  setting  out 


the  evidence,  stated  that  "  here  the  evidence 
closed."  Held,  that  this  was  a  sufficient  al- 
legation that  the  bill  of  exceptions  contained 
all  the  testimony  heard  at  the  trial.  Yates 
V.  State,  10  Yerg.  549. 

15.  Exceptions  to  charge  of  court.  When 
instructions  are  excepted  to  as  erroneous, 
no  part  of  the  testimony  need  be  stated  to 
authorize  the  ajjpellate  court  to  revise  the 
case  upon  the  bill  of  exceptions.  Sharp  v. 
State.  15  Ala.  749. 

16.  A  mere  general  exception  to  the  charge 
of  the  court,  without  specifying  any  grounds 
of  error,  or  asking  for  a  particular  charge,  is 
not  well  taken.  People  v.  Smith,  57  Barb. 
46.  A  bill  of  exceptions,  instead  of  contain- 
ing the  testimony  or  objections  made,  rul- 
ings of  the  court,  or  any  exceptions,  stated 
that  all  these  things  appeared  by  the  depo- 
sitions, documentary  evidence,  and  other 
papers  on  file,  which  were  to  be  annexed  and 
form  part  of  the  bill.  Held,  that  the  judge 
was  not  bound  to  examine  the  files  in  search 
of  documents,  or  to  sign  a  bill  in  such  a 
shape.     State  v.  Noggle,  16  Wis.  333. 

17.  Where  a  bill  of  exceptions  shows  that 
evidence  was  excluded  in  the  court  below 
on  objection,  but  does  not  state  the  ground, 
either  of  the  oijjection  or  decision,  any  ob- 
jection which  might  have  been  available 
during  the  trial,  may  be  raised  on  the  argu- 
ment.    Ward  V.  People,  3  Hill,  395. 

18.  When  to  be  disregarded.  Excep- 
tions at  the  trial,  and  exceptions  to  the  rul- 
ings upon  a  motion  in  arrest,  are  incompati- 
ble. Both  must  be  dismissed,  or  one  be 
withdrawn  or  waived.  If  either  of  the  ex- 
ceptions are  deemed  to  have  been  withdrawn, 
it  is  reasonable  to  consider  that  those  taken 
first  in  order  of  time,  are  the  ones  with- 
drawn.    State  V.  Wing.  32  Maine,  581. 

19.  Where  an  exce])tion  is  so  obscure  that 
the  court  cannot  readily  perceive  the  exact 
point  of  the  objection,  it  will  be  disregarded. 
Carnal  v.  People,  1  Parker,  272. 

3.  Settlement. 

20.  By  whom  made.  In  New  York,  the 
judges  who  preside  at  the  trial  must  settle 
the  bill  of  exceptions,  and  no  other  judges 
or  officers  can  do  so.     Wood   v.  People,  3 


BILL   OF  EXCEPTIONS.— BLASPHEMY 


83 


Effect. 


What  Constitutes. 


N.  Y.  Supm.  N.  S.  500.  And  it  must  be  set- 
tled by  the  court  that  tries  the  indictment, 
as  a  court,  and  not  merely  by  the  presiding 
judge.  Where  the  bill  was  settled  after  the 
adjournment  of  the  court  by  the  circuit 
judge  alone,  in  the  absence  of  the  justices  of 
sessions,  and  was  afterward  presented  to  and 
signed  by  them,  the  Supreme  Court,  on  mo- 
tion of  the  district  attorney,  ordered  it  to  be 
struck  from  the  record.  Birge  v.  People,  5 
Parker,  9. 

4.  Effect. 

21 .  What  brought  up.  Where  a  bill  of 
exceptions  is  allowed,  the  facts  embraced  in 
it  become  a  part  of  the  record ;  and  a  writ 
of  error  brings  up  the  entire  record,  and  er- 
ror may  be  assigned  on  any  part  of  it.  State 
\.  Jones.  5  Ala.  666. 

22.  What  entertained.  When  exceptions 
are  alone  taken,  special  findings  of  the  jury 
cannot  be  considered,  but  only  the  ques- 
tions presented  by  the  exceptions.  State  v. 
Hinckley,  38  Maine,  21. 

23.  When  a  general  objection  is  made  to 
evidence,  it  must  be  understood  to  be  taken 
to  its  competency,  and  not  to  the  form  of  the 
question,  or  other  incidental  matter  which, 
if  stated  at  the  trial,  might  have  been  ob- 
viated. State  V.  Flanders,  38  New  Ilamp.  324. 

24.  Presumption  in  favor  of  court  below. 
It  will  be  presumed  that  the  court  below  de- 
cided correctly,  unless  the  contrary  appears 
from  the  facts  and  proceedings  preserved  in 
the  bill  of  exceptions.  Ingram  v.  State,  7 
Mo.  293. 

25.  When  an  exception  represents  a  mat- 
ter differently  from  the  statement  made  up 
by  the  judge,  it  will  be  disregarded,  and  the 
statement  taken  to  be  true.  State  v.  Lang- 
ford,  Busbce,  N.  C.  436. 

26.  Where  the  bill  of  exceptions  does  not 
disclose  what  the  evidence  was  in  relation  to 
which  the  charge  was  given  to  which  excep- 

;  tion  is  taken,  the  exception  will  be  over- 
I  ruled,  if  the  instruction  could  have  been 
correct  in  any  supposal)le  state  of  the  evi- 
dence. State  V.  IIoi)kins,  5  R.  I.  53. 
\  27.  When  there  is  no  proof  of  venue. 
When  till!  bill  of  exceptions  purports  to  set 
out  all  the  evidence,  and  ddcs  not  show  that 


the  venue  was  proved,  and  an  exception  was 
reserved  to  the  conviction  and  sentence, 
though  no  instruction  was  given  or  asked  in 
reference  to  the  proof  of  venue,  the  judg- 
ment will  be  reversed.  Frank  v.  State,  40 
Ala.  9. 

For  decisions  having  some  relation  to  the 
same  subject,  see  Appeal;  Indictment; 
Tkial  ;  Writ  of  ereor. 


Bill  of  |pavticular0» 

In  discretion  of  court.  Whether  a 
bill  of  particulars  or  specification  of  facts 
will  be  ordered,  is  a  question  in  the  discre- 
tion of  the  court  in  which  the  cause  is  pend- 
ing. Com.  v.  Giles,  1  Gray,  466 ;  Com.  v. 
Wood,  4  lb.  11. 


i3!a5pl)cmi). 


1.  What  constitutes.  Blasphemy  at  com- 
mon law,  is  profanation  of  the  general  prin- 
ciples of  religion  and  morality.  It  may  be 
committed  by  such  utterances  in  a  scoffing 
and  railing  manner,  out  of  a  reproachful  dis- 
position in  the  speaker,  and  as  it  were,  with 
passion  against  the  Almighty,  rather  than 
with  any  purpose  of  propagating  the  irrev- 
erent opinion.  Com.  v.  Kneeland,  Thatch. 
Crim.  Cas.  346 ;  People  v.  Ruggles,  8  Johns. 
290 ;  State  v.  Chandler,  2  Harriug.  553. 

2.  To  constitute  the  offense  in  Massachu- 
setts, under  the  statute,  there  must  be  a 
willful  denial  of  God,  and  of  his  creation  and 
government,  with  an  intent  to  impair  and 
destroy  the  reverence  due  to  him.  Com.  v. 
Kneeland,  20  Pick.  206.  In  Pennsylvania, 
it  is  an  indictable  offense  to  maliciously  vil- 
ify the  christian  religion.  Updegrai^h  v. 
Com.  11  Serg.  &  Rawle,  394. 

3.  In  Delaware,  where  the  jury  found 
that  the  defendant  had  proclaimed  pulilicly 
and  maliciously,  with  intent  to  vilify  the 
christian  religion,  and  to  blaspheme  God,  that 
"  the  Virgin  Mary  was  a  whore,  and  Jesus 
Christ  was  a  bastard,"  it  was  held  that  the 
offense  was  blasphemy,  and  the  court  refused 
to  arrest  the  judgment.     State  v.  Chandler, 


84 


BOARDING   YESSEL.— BREACH   OF    THE   PEACE. 


Act  Constitutional. 


By  Improper  Language. 


4.  Indictment.  In  Pennsylvania,  an  in- 
dictment for  blasphemy,  under  the  statute, 
must  charge  that  the  words  were  spoken 
profanely;  and  the  words  must  be  set  out. 
Updcg-raph  v.  Com.  supra. 

5.  Evidence.  A  person  cannot  be  con- 
victed of  blasphemy  on  his  own  confession, 
made  out  of  court.  It  must  be  proved  that 
the  oifensive  words  were  actually  uttered. 
People  V.  Porter,  2  Parker,  14. 


BoarMng  bcsscL 

1.  Act  constitutional.  The  62d  section 
of  the  act  of  Congress  of  June  7th,  1872 
(17  U.  S.  Stat,  at  Large,  276),  making  it  an 
indictable  offense,  punishable  by  a  penalty 
and  imprisonment,  to  go  on  board  a  vessel 
about  to  arrive  at  the  place  of  her  destina- 
tion, before  her  actual  arrival,  and  before 
she  is  completely  moored,  without  permis- 
sion of  the  master,  is  valid.  U.  S.  v.  Ader- 
son,  10  Blatchf.  226;  s.  c.  1  Green's  Crim, 
Reps.  423. 

2.  Foreign  vessels.  The  act  was  de- 
signed to  protect  foreign  vessels  as  well  as 
vessels  of  the  United  States.     lb. 

3.  What  constitutes  the  offense.  A  per- 
son by  climbing  from  a  boat  upon  the  rail 
of  the  ship,  in  the  act  of  entering  the  ship, 
without  permission,  renders  himself  liable  to 
punishment.     lb. 

4.  The  offense  is  committed,  by  boarding, 
in  the  bay  of  New  York,  without  permis- 
sion, an  inward  bound  vessel,  laden  with 
cargo,  to  be  lauded  at  a  pier  in  the  city  of 
New  York,  before  the  arrival  of  the  vessel  at 
such  pier,  although  the  vessel  when  boarded, 
was  temporarily  at  anchor  in  the  bay.     lb. 

5.  Evidence  for  prosecution.  The  pros- 
ecution need  not  prove  that  the  prisoner  was 
not  in  the  United  States  service,  or  was  not 
duly  authorized  by  law  to  go  on  board  of 
the  vessel.    lb. 

6.  Proof  that  the  master  of  the  ship  was 
not  on  board  of  the  vessel,  and  that  the  mate 
then  in  command,  gave  no  permission  to  the 
defendant  to  board  the  vessel,  and  caused 
his  arrest  on  the  spot,  is  sufficient  to  sup- 
port a  conviction,  in  the  absence  of  any  evi- 


dence showing  a  permission  by  the  master, 
lb. 

7.  Defense-  Proof  that  the  prisoner  was 
a  runner  employed  by  a  person  licensed  to 
keep  a  sailor's  boarding  house  under  the- 
statute  of  New  York,  is  not  a  defense.     lb. 


CrcacI)  nf  tl)c  ^Dcacc. 

1.  By  improper  language.  If  a  person 
in  his  own  dwelling-house,  is  in  the  habit  of 
using  loud  and  violent  language,  consisting 
of  opprobrious  epithets,  and  exclamations,  in 
such  a  manner  as  to  attract  crowds  of  persons 
passing  and  living  in  the  neighborhood  he 
may  be  convicted  of  being  a  common  railer 
and  brawler  and  a  disturber  of  the  peace,  al- 
though he  was  betrayed  into  these  violent 
expressions  in  the  heat  of  altercations  sud- 
denly arising.     Com.  v.  Foley,  99  Mass.  497. 

2.  By  assaulting  another.  In  Connecti- 
cut, to  constitute  a  violation  of  the  statute 
providing  the  punishment  of  any  person  wha 
shall  disturb,  or  break  the  peace  by  tumul- 
tuous and  offensive  carriage,  threatening, 
traducing,  quarreling  with,  challenging, 
assaulting  and  beating  any  other  person, 
there  need  not  have  been  such  conduct  on 
the  part  of  the  defendant  as  amounted  to 
an  assault  and  battery  at  common  law.  State 
V.  Farrall,  29  Conn.  72. 

3.  By  rapid  driving.  It  is  an  indictable 
offense,  and  a  breach  of  the  peace  at  common 
law,  to  drive  a  carriage  through  a  crowded 
street  of  a  city,  at  such  a  high  rate  of  speed 
as  to  endanger  the  safety  of  people  passing  ; 
and  where  the  driver  of  such  carriage  is 
carrying  the  U.  S.  mail,  he  may  be  arrested, 
notwithstanding  the  act  of  Congress  pro- 
hibiting the  stoppage  of  the  mail.  U.  S.  v. 
Hart,  3  Wheeler's  Crim.  Cas.  304. 

4.  By  forcible  entry.  If  a  person  having 
a  possessoiy  title  to  land,  enters  by  force, 
and  throws  out  a  person  who  has  a  naked 
possession  only,  he  may  be  indicted  for  a 
breach  of  the  peace,  but  is  not  liable  in 
trespass  to  the  ousted  person ;  and  on  the 
trial  of  the  indictment,  the  title  to  the  land 
does  not  come  in  question.  Higgins  v.  State, 
7  Ind.  549. 


BRIBERY.— BURGLARY. 


85 


Power  of  Congress  to  Punish. 


What  Constitutes. 


As  to  sureties  of  the  peace,  see  Bail   and 

KECOGNIZANCE. 


Bribcnj. 

1.  Power  of  Congress  to  punish.  Bribery 
is  included  in  the  8th  section  of  the  1st 
article  of  the  Constitution  of  the  United 
States,  giving  Congress  power  to  create, 
define,  and  punish  crimes  and  offenses.  U.  S. 
V.  Worrall,  3  Dallas,  384. 

2.  Venue.  Writing  and  mailing  a  letter 
offering  a  bribe  in  one  State,  directed  to  a 
person  in  another  State,  is  an  offense  com- 
pleted in  the  State  where  the  post  office  is 
situated.     U.  S.  v.  Worrall,  supra. 

3.  Bribery  at  election.  To  constitute 
bribery  at  an  election,  it  must  appear  that 
the  offense  was  actually  carried  into  exe- 
cution by  an  election  held,  and  the  corrupt 
vote  then  given;  and  this  cannot  be  in- 
tended, but  must  be  distinctly  charged. 
Newell  V.  Com.  2  Wash.  88. 

4.  In  Pennsylvania,  the  bribing  of  a  voter 
by  a  person  running  for  the  office  of  sheriff, 
is  not  an  infamous  crime,  within  the  meaning 
of  the  State  constitution  disqualifying  him 
on  conviction,  from  holding  office.  Com. 
V.  Shaver,  3  Watts  &  Serg.  338. 

5.  An  agreement  between  A.  and  B.  that 
A.  will  vote  for  C.  as  commissioner  of  the 
revenue,  in  consideration  that  B.  will  vote 
for  D.  as  clerk,  and  the  voting  of  A.  and  B. 
pursuant  thereto,  is  not  an  offense  within 
the  statute  of  Virginia  against  buying  and 
selling  offices.  Com.  v,  Callaghan,  2  Va. 
Cas.  4C0. 

6.  Bribing  officer.  In  Alabama,  to  con- 
stitute the  offense  of  bribing  a  legislative 
or  judicial  officer,  it  must  appear  that  the 
cause  or  proceeding  was  pending  before  the 
-officer  at  the  time;  or  that  it  was  afterward 
instituted  before  the  officer,  or  so  instituted 
that  in  the  ordinary  course  of  proceeding  it 
would  come  before  him.  Barcflold  v.  State, 
14  Ala.  603. 

7.  It  is  not  a  defense  to  an  indictment 
for  bribing  a  United  States  officer,  that  the 
prisoner  was  brought  within  the  jurisdiction 
of  the  court  under  an  extradition  treaty  on 


another  charge,  and  that  the  offense  of 
bribery  is  not  within  the  treaty.  U.  S.  v. 
Caldwell,  8  Blatch.  131. 

8.  Offering  bribe.  A  person  may  be  in- 
dicted for  offering  to  bribe,  though  the 
bribe  be  not  taken.  State  v.  Ellis,  4  Vroom, 
102. 

9.  Indictment.  An  indictment  for  bribery 
at  an  election  need  not  allege  that  the 
persons  voted  for  were  candidates.  Com. 
V.  Stephenson,  3  Mete.  Ky.  226. 

10.  An  indictment  alleged  that  the  de- 
fendant knowingly  offered  to  give  O.  a 
bribe  to  vote,  the  said  O.  being  then  and 
there  under  twenty-one  years  of  age.  HeW. 
sufficient,  as  including  in  the  ciiarge,  that 
the  defendant  knew  that  O.  was  under  age 
when  he  offered  him  the  bribe.  U.  S.  v. 
O'Neill,  2  Sawyer,  481. 

11.  A  person  was  indicted  for  attempting 
to  bribe  a  deputy  sheriff,  with  money  to 
induce  him  to  sum  mo  u  such  persons  on  the 
jury,  as  the  defendant  should  name.  Held.^ 
an  offense  at  common  law,  and  that  it  was 
not  necessary  to  allege  in  the  indictment, 
that  the  defendant  offered  any  specific  sum 
of  money,  or  other  thing,  to  the  deputy 
sheriff.     Com.  v.  Chapman,  1  Va.  Cas.  138. 


Suvglanj. 

1.  What  constitutes. 

2.  Indictment. 

3.  Evidence. 

4.  Verdict. 


1.  What  constitutes. 

1.  Meaning.  Burglary  is  the  breaking 
and  entering  of  a  dwelling-house,  in  the 
night  with  intent  to  commit  a  felony.  State 
V.  Wilson,  Coxe,  441;  Com.  v.  Newell,  7 
Mass.  247. 

2.  The  breaking.  To  constitute  burglary, 
there  must  be  a  breaking,  removing,  or 
putting  aside  of  some  part  of  the  dwelling- 
house  which  is  relied  on  as  a  security  against 
intrusion.  A  door  or  window  left  open  is 
no  such  security.  But  if  the  door  or  window 
be  shut,  it  need  not  be  locked,  bolted,   or 


86 


BUEGLARY 


What  Constitutes. 


nailed;  a  latch  to  the  door,  or  the  weight 
of  the  window  being  sufficient.  State  v. 
Boon,  13  Ired.  244  ;  State  v.  Reid,  20  Iowa, 
413;  Lyons  v.  People,  68  111.  271;  Com.  v. 
Strupney,  105  Mass.  588.  But  see  People 
V.  Bush,  3  Parker,  553. 

3.  The  outer  door  being  open,  entering 
and  unlatching,  or  unlocking  a  chamber 
door  is  burglary.  .State  v.  Wilson,  Coxe, 
439.  Otherwise,  if  all  the  doors  are  open, 
and  a  thief  enter,  though  he  afterward 
break  open  a  chest  or  cupboard.  lb.  A 
person  who  entered  a  railroad  depot  through 
an  open  outer  door,  and  then  broke  and  en- 
tered an  inner  door,  wiis  held  guilty  of 
breaking  and  entering  the  depot.  State  v. 
Scripture,  43  New  Hamp.  485. 

4.  The  raising  of  a  window  sash  which 
was  down  and  closed,  and  which  was  the 
only  fastening  to  the  window,  and  the  entry 
of  the  party  through  the  same  into  tlie 
house,  is  such  a  breaking  as  constitutes  bur- 
glary.    Frank  v.  State,  39  Miss.  705. 

5.  Where  an  entry  into  a  building  is  ef- 
fected through  a  hanging  window  over  a 
shop  door,  designed  for  light  and  ventilation, 
kept  down  by  its  own  weight  so  iirmly  as  to 
be  opened  only  by  the  use  of  force,  and  so 
situated  that  a  ladder,  or  something  of  the 
kind,  is  necessary  to  reach  it,  it  is  a  sufficient 
breaking  to  constitute  burglary.  Dennis  v. 
People,  27  Mich.  151 ;  s.  c.  8  Green's  Crim. 
Reps.  565. 

6.  An  area  or  excavation,  in  front  of  a 
cellar  window,  covered  and  protected  by 
an  iron  grating  is  to  be  deemed  a  part  of  the 
cellar,  and  the  raising  of  the  grating  is  a 
breaking  and  entering  within  the  statute  of 
Michigan  (Comp.  L.  §  5766)  against  bur- 
glary.    People  v.  Nolan,  33  Mich.  339. 

7.  Where  it  was  proved  that  the  prisoner 
entered  a  dwelling-laouse  by  an  open  window 
in  the  day  time,  passed  through  the  house, 
unlocked  the  front  door  and  went  out  about 
noon,  it  was  held  that  his  offense  was  not 
burglary  in  the  second  degree  under  the 
statute  of  New  York  (3  R.  S.  5th  ed.  p. 
947,  §  13).  People  v.  Arnold,  6  Parker, 
638. 

8.  In  Massachusetts,  the  removal  of  a 
plank  which  is  loose,  and  not  attached  to  the 


freehold,  in  a  partition  wall  of  a  building,  is 
is  not  a  breaking  in  within  the  statute. 
Com.  V.  Trimmer,  1  Mass.  476. 

9.  Entering  by  getting  down  a  chimney,  is 
a  breaking.  It  makes  no  difference  whether 
the  door  is  barred  and  bolted,  or  the  window 
secured  or  not,  provided  the  house  is  se- 
cured in  the  ordinary  way,  so  that  by  the 
carelessness  of  the  owner,  in  leaving  the 
door  or  window  open,  the  trespasser  be  not 
tempted  to  enter.  Com.  v.  Stephenson,  8 
Pick.  354 ;  State  v.  Willis,  7  Jones,  190. 

10.  Where  on  a  trial  for  burglary  it  was 
proved  that  the  defendant  about  four  o'clock 
in  the  morning  had  raised  the  window  of  a 
dwelling-house,  and  stood  outside  hokling 
it  up  with  his  hand,  the  fingers  of  which 
were  inside  the  house,  and  his  elbows  rest- 
ing on  the  window  sill,  when  being  discov- 
ered, he  drojiped  the  window  and  fled,  it 
was  held  sufficient  to  sustain  a  conviction. 
France  v.  State,  43  Texas,  376. 

11.  Forcing  open  shutters  and  thrusting 
the  hand  within  them,  thei'e  being  no  entry 
of  the  house,  will  not  constitute  burglary. 
State  V.  McCall,  4  Ala.  643.  Where  on  a 
trial  for  burglary,  the  evidence  did  not  show 
whether  certain  blinds  were  so  closed  as  to 
require  a  breaking  to  enter,  it  was  held  in- 
sufficient to  sustain  a  conviction.  Williams 
v.  State,  53  Ga.  580. 

12.  When  it  was  proved  that  the  prisoner 
had  proposed  to  a  servant  a  lilan  for  rob- 
bing his  employer's  office  by  night,  that  the 
servant  told  his  employer,  and  that  the  lat- 
ter acting  under  the  instructions  of  the 
police,  gave  the  servant  the  keys  of  his  office, 
that  the  servant  and  the  prisoner  went  to- 
gether to  the  office,  when  the  servant  opened 
the  door  with  the  key,  and  they  both  entered 
through  the  door,  and  were  arrested  in  the 
house,  it  was  held  that  there  could  not  be  a 
conviction  of  burglary.  Allen  v.  State,  40 
Ala.  334. 

13.  On  a  trial  for  burglary,  the  evidence 
showed  that  the  proprietor  of  the  building 
was  apprised  of  the  intended  crime,  that 
armed  men  were  placed  in  the  building,  and 
that  the  proprietor  was  close  at  hand  watch- 
ing when  the  entrance  was  effected.  Ileld 
that  the  liability  of  the  defendants  was  not 


BUEGLARY. 


87 


What  Constitutes. 


thereby  changed.     Thompson  v.    State,   18 
Ind.  386. 

14.  Constructive  breaking.  The  prisoner, 
by  artifice  and  fraud,  procured  the  door  of 
a  dwelling  to  be  opened,  and  immediately  en- 
tered and  robbed  the  house.  Held  burglary. 
State  V.  Johnson,  Phil.  N.  C.  188. 

15.  Where  three  persons,  between  ten  and 
eleven  o'clock  at  night,  obtained  an  entrance 
into  a  store  by  arousing  the  owner  from 
sleep,  and  requesting  to  be  let  in,  and  after 
they  had  entered  called  for  meat,  and  as  the 
owner  of  the  store  was  in  the  act  of  getting 
it,  knocked  him  down  and  robbed  the  store, 
it  was  held  a  sufficient  breaking  to  consti- 
tute burglary.  State  v.  Mordecai,  68  N.  C. 
207. 

16.  To  amount  to  a  constructive  breaking, 
so  as  to  constiti;te  burglary,  by  enticing  the 
owner  out  of  his  house  by  fraud  and  circum- 
vention, and  thus  inducing  him  to  open  his 
door,  the  entry  of  the  trespasser  must  be 
immediate,  or  so  soon  that  the  owner,  or  his 
family,  cannot  refasten  the  door.  State  v. 
Henry,  9  Ired.  403. 

17.  Where  the  owner  was  decoyed  to  a 
distance  from  his  house,  leaving  it  unfast- 
ened, and  his  family  did  not  fasten  it  after 
he  went  out,  and  the  trespasser,  at  the 
expiration  of  about  fifteen  minutes,  entered 
the  house  through  the  unfastened  door, 
with  intent  to  commit  a  felony,  it  was  held 
not  burglary.     lb.  Ruffin,  C.  J.,  dissenting. 

18.  Where  two  combine  to  commit  a  bur- 
glary, and  one  breaks  into  the  house  and 
obtains  the  property  while  the  other  waits 
outside,  both  are  guilty  of  breaking  and 
entering.     People  v.  Boujet,  2  Parker,  11. 

19.  Where  an  essential  part  of  the  plan  of 
a  burglary  was  that  one  of  the  parties 
should  entice  the  owner  a  mile  away  from 
the  building,  and  keep  him  there  while  the 
burglary  was  efl'ected,  it  was  held  that  the 
one  so  doing,  was  constructively  present  at 
the  burglary,  and  might  be  indicted  as  a 
principal.  Breese  v.  State,  12  Ohio,  N.  S. 
146. 

20.  Time  of  breaking.  In  Georgia,  bur- 
glary may  be  committed  in  the  day  as 
well  as  night.  State  v.  Thompson,  K.  M. 
Charlt.  80.     And  in  Maine,  the  offense  may 


be  committed  irrespective  of  light  or  dark- 
ness.    State  V.  Newbergin,  25  Maine,  500. 

21.  On  the  trial  of  an  indictment  against 
an  accessory  before  the  fact,  to  the  breaking 
and  entering  a  bank  building  in  the  night, 
and  stealing  from  the  vault  of  the  bank,  it 
is  immaterial  that  part  of  the  work  was 
done  in  the  day  time,  or  that  the  forcing 
open  of  the  vault  and  stealing  its  contents 
was  postponed  until  daylight ;  nor  is  it  nec- 
essary to  prove  that  the  defendant  knew  or 
supposed  that  the  offense  was  to  be  com- 
mitted in  the  night.  Com.  v.  Glover,  111 
Mass.  395. 

22.  Must  be  a  felonious  intent.  The  in- 
tent to  commit  a  felony  is  a  material  part  of 
the  crime  of  burglary,  and  must  be  alleged 
in  the  indictment.  Wood  v.  State,  46  Ga. 
323.  The  jury  were  instructed  that  if  they 
believed  that  the  defendant  entered  a  certain 
warehouse  in  the  night  time  and  took  there- 
from sundry  goods  and  chattels,  he  was 
guilty  of  burglaij.  Held  error,  no  allusion 
being  made  in  the  instruction  to  the  feloni- 
ous intent  of  the  entry  and  the  character  of 
it.     People  V.  Jenkins,  16  Cal.  431. 

23.  When  on  the  trial  of  an  indictment 
for  breaking  and  entering  a  dwelling  in  the 
night  with  intent  to  commit  larceny,  it  is 
proved  that  the  defendant  was  at  the  time 
in  such  a  state  of  intoxication  that  he  en- 
tered without  any  intent  to  commit  the 
crime,  he  cannot  be  convicted.  State  v. 
Bell,  29  Iowa,  316. 

24.  A  person  who  is  lawfully  in  a  house, 
or  has  the  right  to  enter,  as  the  guest  of  an 
inn,  cannot  be  convicted  of  entering  in  the 
night  time  with  intent  to  steal.  State  v, 
Moore,  12  New  Hamp.  42.  . 

25.  A  joint  tenant  cannot  be  guilty  of 
burglary  in  imlocking  the  door  of  the  joint 
tenement  and  taking  therefrom  the  goods 
of  his  roommate.  Clarke  v.  Com.  25  Gratt 
908. 

26.  Under  an  indictment  for  breaking  and 
entering  a  smokehouse  and  stealing  meat, 
the  charatcter  of  the  intent  will  not  be 
changed  by  the  fact  that  the  prisoner  pre- 
viously went  into  the  smokehouse  on  the 
business  of  the  mistress  of  the  house,  and 
while  there,  dropped  the  meat  between  the 


t- 


88 


BURGLAEY. 


What  Constitutes. 


ceiling,  so  tliat  it  could  be  taken  out  by  pry- 
ing up  one  of  the  -ueather  boards;  nor  will 
it  change  the  cliaracter  of  the  breaking  and 
entering  so  as  to  make  the  offense  a  mere 
larceny  instead  of  burglary.  Fisher  v.  State, 
43  Ala.  17. 

27.  Intent  when  not  an  ingredient  of 
offense.  In  Ohio,  under  the  statute  punish- 
ing the  breaking  and  entering  a  mansion 
house  in  the  night  season,  in  which  any  per- 
son shall  reside  or  dwell^  and  committing,  or 
attempting  to  commit,  any  personal  violence 
or  aluse^  the  intent  with  which  the  party 
enters  forms  no  ingredient  of  the  offense. 
The  sole  question  is,  did  the  defendant  com- 
mit, or  attempt  to  commit,  any  personal 
abuse  or  violence.  Forsythe  v.  State,  6 
Ham.  20. 

28.  To  break  and  enter  a  dwelling-house 
with  intent  to  commit  adultery,  is  not 
burglary  in  Vermont.  State  v.  Cooper,  16 
Vt.  551.  In  Massachusetts,  it  is  not  a  felony 
to  break  and  enter  a  dwelling-house  with  in- 
tent to  cut  off  an  ear  of  a  person.  Com.  v. 
Xewell,  7  Mas^.  245. 

29.  The  building.  Every  dwelling-house 
is  a  habitation  in  which  burglary  may  be 
committed,  and  also  all  out-houses  attached 
to  the  dwelling,  and  intended  for  the  com- 
fort and  convenience  of  the  family.  Armour 
V.  State,  3  Humph.  379;  but  not  a  store,  in 
which  no  member  of  the  family  slept,  though 
witliiu  thirty  feet  of  it,  and  within  a  com- 
mon inclosure.     lb. 

30.  It  is  not  burglary  to  break  the  door  of 
a  store  within  three  feet  of  the  dwelling- 
house,  and  inclosed  in  the  same  yard,  when 
the  store  is  not  essential  to  the  hou.se  as  a 
dwelling.  State  v.  Langford,  1  Dev.  253. 
And  breaking  open,  in  the  night,  a  store 
twenty  feet  from  a  dwelling-house,  but  not 
connected  with  it  by  any  fence  or  inclosure, 
is  not  burglary.  People  v.  Parker,  4  Johns. 
424. 

31.  A  storehouse  in  which  the  owner 
occasionally  slept,  two  hundred  yards  from 
his  dweUing-house,  in  which  he  generally 
slept,  with  his  family,  is  not  a  dwelling- 
house,  the  breaking  and  entering  of  which 
constitutes  burglary.  State  v.  Jenkins,  5 
Jones,  430.     Approved,  State  v.  Outlaw,  72 


N.  C.  598.  But  burglary  maybe  committed 
by  breaking  and  entering  a  storehouse 
twenty-four  yards  from  the  dwelling-house 
and  separated  therefrom  by  a  fence,  if  the 
owner  or  his  servants  occasionally  sleep 
there.  State  v.  Wilson,  1  Hayw.  242. 
Where  a  clerk  had  for  four  years  occupied  a 
storehouse  as  his  regular  sleeping  apartment, 
for  the  sole  purpose  of  protecting  it,  it  was 
held  a  dwelling-house  in  which  burglary 
might  be  committed.  State  v.  Outlaw,  72 
K  C.  598. 

32.  Where  a  person  was  charged  with 
breaking  and  entering,  in  the  night,  "a 
certain  house,  not  then  occupied  as  a  dwell- 
ing-house," and  stealing  therein  goods  and 
chattels,  it  was  held  to  be  only  larceny. 
Wilde  V.  Com.  2  Mete.  408.  But  it  has  been 
held  burglary  to  break  and  enter  a  house  in 
a  city  where  the  prosecutor  intended  to  live 
when  he  came  back  from  the  country,  to 
which  he  had  moved  his  furniture  on  going 
to  the  country,  although  his  family  had 
never  slept  in  it ;  but  it  had  only  been  used 
Ijy  them  occasionally  as  a  stopping  place. 
Corn.  V.  Brown,  3  Rawle,  207. 

33.  A  two-story  house  of  which  the  front 
on  the  first  floor  was  used  by  the  owner  as  a 
storehouse,  and  the  back  room  (containing 
a  few  boxes  of  goods,  and  communicating 
with  the  front  by  a  door  in  the  2iartition)  as 
a  sleeping  room,  wiiile  his  clerks  took  their 
meals  at  a  hotel,  but  slept  in  the  rooms  on 
the  second  floor.  Held,  a  dwelling-house, 
both  within  the  common-law  definition  of 
burglary,  and  under  sections  3308-9  of  the 
Code  of  Alabama.  Ex  parte  Vincent,  26 
Ala.  145.  And  see  State  v.  Mordecai,  68  N. 
C.  207. 

34.  Burglary  may  be  committed  by  break- 
ing and  entering  rooms  in  a  tenement  house 
which  is  occupied  separately  by  several 
families,  each  having  distinct  apartments 
opening  into  a  common  hall  and  thus  com- 
municating with  the  street.  Mason  v.  Peo- 
ple, 26  N.  Y.  200.  But  apartments  leased 
and  occupied  separately  from  other  tene- 
ments in  the  same  building,  with  a  separate 
outside  entrance,  the  lessee  having  his 
residence  in  another  part  of  the  city,  are  not 
'•  adjoining  to  or  occupied  with  a  dwelling- 


EUKGLAEY. 


89 


What  Constitutes. 


Indictment. 


house "  within  the  statute  of  Michigan 
against  burglary  (Comp.  L.  §  5766).  Peo- 
ple V.  Nolan,  22  Mich.  229. 

35.  In  North  Carolina,  a  smokehouse 
■which  opened  into  the  yard  of  a  dwelling- 
house  was  deemed  a  part  of  the  dwelling, 
the  breaking  and  entering  of  which  con- 
stituted burglary.  State  v.  Whit,  4  Jones, 
349.  And  in  Alabama,  under  an  indictment 
for  burglary,  a  smokehouse,  the  front  part 
and  door  of  which  were  in  the  yard  of  the 
dwelling-house,  although  the  rear  was  not, 
was  held  to  be  within  the  curtilage,  and  that 
the  breaking  and  entering  the  rear  of  such 
a  building  constituted  the  offense,  if  the 
breach  enabled  the  prisoner  to  take  out 
meat  with  his  hands.  Fisher  v.  State,  43 
Ala.  17. 

36.  In  Connecticut,  the  cabin  of  a  vessel 
is  a  "shop,"  and  a  barn  not  connected  with 
the  mansion-house,  is  an  "out-house,"  with- 
in the  statute  punishing  burglary.  State  v. 
Carrier,  5  Day,  131;  State  v.  Brooks,  4 
Conn.  446.  See  also,  Eex  v.  Humphrey,  1 
Root,  63.  But  otherwise  as  to  a  district 
school-house.  State  v.  Bailey,  10  Conn. 
144. 

2.  Indictment. 

37.  Manner  of  breaking.  In  Missouri, 
an  indictment  for  house  breaking  under  the 
statute,  must  allege  the  manner  of  the 
breaking,  in  order  to  show  the  exact  offense 
intended  to  be  charged.  Connor  v.  State, 
14  Mo.  561.  In  New  Hampshire,  it  was 
held  that  the  offense  of  entering  a  house  in 
the  night,  without  breaking,  was  included 
in  an  indictment  for  breaking  and  entering. 
State  V.  Moore,  1 2  New  Ilamp.  42. 

38.  Description  of  premises.  It  is  suffi- 
cient to  describe  the  house  in  the  indict- 
ment by  the  word  "mansion."  Com.  agst. 
Pennock,  3  Serg.  &  Rawle,  199. 

39.  An  indictment  for  burglary  charged 
that  the  crime  was  committed  in  the  dwell- 
ing-house of  W.  He  occupied  two  apart- 
ments in  the  house,  and  there  were  several 
rooms  tenanted  by  other  persons.  The  outer 
or  hall  door  was  common  to  all  the  occu- 
pants. Held  that  the  rooms  occupied  by 
W.  were  properly  described  in  the  indict- 


ment as  his  dwelling-house.     People  v.  Bush, 
3  Parker,  552. 

40.  An  indictment  for  bui'glary  chaiged 
the  prisoner  with  having  broken  and  entered 
"the  storehouse  building  of  the  Gulf  Brew- 
ery, in  which  said  storehouse  building, 
goods,  chattels,  personal  property,  beer,  ale, 
and  other  valuable  things  were  kept  for  use, 
sale  and  deposit,  with  intent,"  &c.  .Ufjon 
the  trial,  the  "Gulf  Brewery"  was  proved 
to  be  a  corporation,  and  the  premises  broken 
into,  consisted  of  one  or  more  rooms  in  the 
basement  of  a  court-house,  which  for  several 
years  had  been  occupied  by  the  "  Gulf 
Brewery  "for  storing  beer,  and  which  was 
separated  from  the  other  rooms  in  the  base- 
ment by  partition  walls  with  doors  which 
were  kept  locked,  the  keys  remaining  in  the 
jjossession  of  the  agents  of  the  corporation. 
The  alleged  burglary  consisted  in  breaking 
the  door  leading  into  these  apartments,  the 
prisoner  having  gained  access  to  the  base- 
ment through  an  open  window  into  a  hall 
occujjied  for  public  purposes.  Held,  that 
the  apartments  of  the  Gulf  Brewery  were 
properly  described  to  convict  the  defendant 
of  burglary  in  the  third  degree.  People 
V.  McCloskey,  5  Parker,  57. 

41.  An  indictment  charged  that  the  de- 
fendants broke  and  entered  "  a  certain 
building  called  a  bank,  being  the  bank  of 
the  New  Hampshire  Savings  Bank,  in  Con- 
cord." The  building  was  owned  by  the 
Merrimack  County  Bank.  There  were  two 
entrances  to  the  building  in  which  the  Sav- 
ings Bank  was  kept,  one  leading  to  the 
rooms  occupied  by  the  Merrimack  County 
Bank,  the  other  to  the  rooms  of  the  Savings 
Bank  and  other  parts  of  the  building.  All 
the  rooms  except  those  occupied  by  the 
Merrimack  County  Bank  as  their  banking 
rooms,  were  leased  and  occupied  by  tenants. 
The  part  occupied  by  the  Merrimack  County 
Bank  was  separated  from  the  rest  of  the 
building  by  a  partition,  and  had  no  connec- 
tion with  the  other  parts.  The  Savings 
Bank  had  exclusive  possession  of  their 
rooms  lor  their  bank.  Held  that  the  place 
of  the  alleged  offense  was  properly  described 
in  the  indictment.  State  v.  Rand,  33  New 
Ilamp.  216. 


00 


BURGLAEY. 


Indictment. 


> 


42.  Where  tliere  -were  two  statutes,  one 
punishing  the  offense  of  breaking  in  the 
night  into  an  office  adjoining  a  dwelling- 
house,  and  another,  that  of  l)reaking  in  the 
night  into  an  office  not  adjoining  a  dwell- 
ing-honse,  the  punishment  of  both  being 
similar,  it  was  held  not  necessary  to  allege 
whether  the  office  was  adjoining^,  or  not,  to 
the  dwelling  house.  Lamed  v.  Com.  12 
Mete.  240. 

43.  An  indictment  for  burglary  which  de- 
scribed the  premises  as  "  the  warehouse  of 
W.  M.,  at  Scioto  county,"  was  held  sufficient. 
Spencer  v.  State,  11  Ohio,  401. 

44.  Ownership  of  building.  In  Massachu- 
setts, an  indictment  for  breaking  and  enter- 
ing the  building  of  another,  which  did  not 
allege  the  ownership  of  the  building,  was 
held  fatally  defective.  Com.  v.  Perris,  108 
Mass.  1.  In  Iowa,  an  indictment  under  the 
statute  (Revision,  §  4235),  for  breaking  and 
entering  a  building  in  which  valuable  things 
are  kept  for  use,  must  set  out  the  owner  of 
the  building,  if  known,  or  if  not  known,  it 
must  be  so  stated.  State  v.  Morrisey,  22 
Iowa,  158. 

45.  An  indictment  for  burglary  may  lay 
the  ownership  of  the  house  in  a  married 
woman  who  lives  apart  from  her  husband, 
and  has  the  occupancy  and  control  of  it. 
Butcher  v.  State,  18  Ohio,  708.  Describing 
the  building  entered  as  "the  property  of 
the  estate  of  Mrs.  L.,"  is  sufficient,  though 
it  should  appear  that  Mrs.  L.  was  dead 
before  the  alleged  time  of  the  commission  of 
the  offense.  Anderson  v.  State,  48  Ala.  G65 ; 
s.  c.  2  Green's  Crim.  Reps.  G20. 

46.  In  an  indictment  for  entering  a  room 
with  intent  to  commit  larceny,  the  owner- 
ship of  the  room  may  be  alleged  to  be  in  a 
person  who  hires  the  room  from  the  lessee 
of  the  building.  People  v.  St.  Clair,  38  Cal. 
137.  Where  the  building  alleged  to  have 
been  entered,  was  described  as  the  shop  of 
William  S.  Amigh,  it  was  held  no  variance 
that  the  shop  was  occupied  in  the  business 
of  one  Winters,  that  Amigh  was  his  agent, 
hired  and  paid  for  the  shop  and  had  it 
under  his  charge.  People  v.  Smith,  1  Par- 
ker, 329. 

47.  In   Massachusetts,    where    a   shop    is 


occupied  by  tenants  in  common,  an  indict- 
ment under  the  statute  (R.  S.  cli.  133,  §  11), 
for  breaking  and  entering  it  in  the  night 
time  and  stealing  therein,  may  describe  it 
as  the  proiDcrty  of  either.  Com.  v.  Thomp- 
son. 9  Gray,  108. 

48.  Where  two  railroad  companies  jointly 
had  the  exclusive  possession  and  control  of 
a  depot  under  a  lease  from  the  owner,  it 
was  held  that  an  indictment  for  breaking 
and  entering  the  depot,  properly  described 
it  as  belonging  to  such  companies.  State 
v.  Scripture,  42  New  Hamp.  485. 

49.  Where  the  house  is  occupied  by  a 
servant,  clerk  or  employee,  who  has  no 
estate  therein  as  lessee  or  tenant  at  will  or 
at  suffrance,  an  indictment  for  burglary 
should  charge  it  to  be  the  house  of  the 
owner.     State  v.  Outlaw,  72  N.  C.  598. 

50.  Where  an  indictment  for  burglary 
charges  that  the  defendants  broke  and 
entered  "the  City  Hall  of  the  city  of 
Charlestown,"  it  was  held  that  this  was  a 
sufficient  averment  of  ownership  in  the 
city.     Com.  v.  Williams,  2  Cush.  582. 

51.  An  indictment  for  burglary  need  not 
allege  that  any  one  was  in  the  house  at  the 
time  of  the  alleged  breaking.  The  State  v. 
Reid,  20  Iowa,  413. 

52.  Time  of  breaking.  It  is  sufficient  to 
allege,  generally,  that  the  burglary  was 
committed  in  the  night ;  and  if  a  particular 
hour  is  named,  it  need  not  be  proved. 
People  V.  Burgess,  35  Cal.  115;  State  v. 
Robinson,  G  Vroom  (35  N.  J.)  71. 

53.  An  indictment  for  burglary  is  suffi- 
cient which  charges  that  the  offense  was 
committed  on  a  specified  day,  "about  the 
hour  of  twelve,  in  the  night  of  th^  same 
day."     State  v.  Seymour,  3G  Maine,  225. 

54.  In  Massachusetts,  the  averment  that 
the  breaking  and  entering  were  in  the  night 
is  deemed  equivalent  to  an  allegation  that 
the  offense  was  committed  between  one  hour 
after  sun-setting  on  one  day,  and  one  hour 
before  sun-rising  on  the  next  day.  Com.  v. 
Williams,  2  Cush.  582. 

55.  In  New  York,  an  indictment  for 
burglary  in  the  third  degree  need  not  charge 
that  the  offense  was  committed  in  the  day- 
•time.     Butler  v.  People,  4  Denio,  68. 


BUEGLAKr. 


91 


Indictment. 


56.  In  Connecticut,  an  information  for 
burglary  wliicli  eliargecl  that  the  prisoner 
"  feloniously  and  burglariously  "  broke  and 
entered,  without  stating  that  the  acts  were 
done  in  the  night,  or  at  what  hour  they  were 
done,  after  a  verdict  of  guilty  and  judgment 
was  held  fatally  defective.  Lewis  v.  State, 
16  Conn.  32.  And  see  Mark's  Case,  4  Leigh, 
658. 

57.  Must  aver  intent.  An  indictment 
for  burglary  must  charge  a  felonious  intent. 
State  V.  Eaton,  3  Harring.  554 ;  Bell  v. 
State,  48  Ala.  684 ;  otherwise,  as  to  an  in- 
dictment for  breaking  and  entering  a  house 
in  the  day  time.  Davis  v.  State,  3  Cold. 
Tenn.  77. 

58.  It  is  not  enough  in  an  indictment  for 
burglary  to  allege  an  intention  to  commit  a 
felony,  but  the  particular  offense  must  be 
stated,  and  the  facts  set  forth.  Wilburn  v. 
State,  41  Texas,  237 ;  State  v.  Lockhart,  24 
Ga.  420.  It  is  otherwise  in  New  York  under 
the  Revised  Statutes.  Mason  v.  People,  26 
N.  Y.  200,  Emott,  J.,  contra. 

59.  An  indictment  for  breaking  and  enter- 
ing a  dwelling-house  in  the  night,  and  steal- 
ing, need  not  charge  an  intent  to  steal.  Jones 
v.  State,  11  New  Hamp.  269 ;  Com.  v.  Brown, 
3  Rawle,  207. 

60.  An  indictment  which  alleges  that  A. 
and  B.  had  "  in  their  possession  "  on  a  certain 
day  burglars'  tools  sufficiently  charges  a 
joint  possession ;  and  an  indictment  which 
alleges  an  intent  to  use  such  tools  need  not 
describe  the  buildings  intended  to  be  en- 
tered; or  the  property  intended  to  be  taken, 
or  mention  the  name  of  the  owner.  Com. 
V.  Tivnon,  8  Gray,  375. 

61.  An  indictment  forbreal^ing  and  enter- 
ing a  dwelling-house  with  intent  to  commit 
a  rape  need  not  allege  an  intent  "  then  and 
there^''  nor  need  the  crime  of  rape  be  fully 
and  technically  set  forth.  Com.  v.  Doherty, 
10  Cush.  52. 

j^  62.  Averment  of  larceny.  The  charge 
of  larceny  is  not  essential  to  constitute 
burglary,  the  mere  intent  to  commit  larceny 
being  sufficient.  If  therefore,  the  allegation 
of  larceny  is  wholly  defective,  there  will  still 
remain   sufficient  to   sustain    a  conviction. 


Larned  v.  Com.  13  Mete.  240 ;  State  v.  Ayer, 
3  Fost.  301. 

63.  Burglary  and  larceny  committed  in 
the  night  may  be  included  in  the  same  in- 
dictment. State  V.  Colter,  6  R.  L  l!)S; 
Breese  v.  State,  13  Ohio,  N.  S.  146;  Shep- 
herd V.  State,  42  Texas,  501 ;  Davis  v.  State, 
3  Cold.  Tenn.  77;  State  v.  Ah  Sam,  7  Nev. 
127.  And  the  prisoner  may  be  acquitted  of 
burglary,  and  convicted  of  the  la/ceny ;  but 
a  general  verdict  of  guilty,  will  cover  both 
offenses.     State  v.  Brady,  14  Vt.  353. 

64.  An  indictment  charging  that  the  de- 
fendant broke  and  entered  the  dwelling- 
house  of  one  i^erson  with  intent  to  steal  his 
goods,  and  having  so  entered,  stealing  and 
carrying  away  the  goods  of  another  person, 
is  not  bad  for  duplicity.  State  v.  Brady, 
swpra. 

65.  Judgment  will  not  be  arrested  after  a 
general  verdict  of  guilty  under  an  indict- 
ment for  breaking  and  entering  a  building 
and  stealing  therein,  if  the  indictment  prop- 
erly allege  the  larceny  of  a  single  article. 
State  V.  Bartlett,  55  Maine,  200. 

66.  An  indictment  for  burglary  with  intent 
to  steal  goods  and  chattels,  need  not  describe 
the  goods.  Spencer  v.  State,  13  Ohio,  4C1 ; 
Josslyn  V.  Com.  6  Mete.  236 ;  or  state  the 
value  of  the  things  intended  to  be  stolen. 
Hunter  v.  State,  29  Ind.  80 ;  Wicks  v.  State, 
44  Ala.  398.  Contra^  as  to  the  averment  of 
value,  People  v.  Murray,  8  Cal.  519. 

67.  An  indictment  for  entering  a  dwelling- 
house  with  intent  to  steal,  may  charge  in 
different  counts  the  ownership  of  the  goods 
to  be  in  different  persons.  People  v.  Thomp- 
son, 28  Cal.  214. 

68.  An  indictment  for  breaking  and  enter- 
ing a  shop,  and  stealing  therein  certain 
property  of  A.  and  B.,  need  not  allege  that 
A.  and  B.  were  partners ;  and  proof  that  they 
were  in  fact  partners,  and  that  the  property 
stolen  l)clouged  to  the  firm,  will  not  consti- 
tute a  variance.  Com.  v.  O'Brien,  12  Allen, 
183. 

69.  Place  of  trial.  In  New  York,  burg- 
laries may  be  tried  out  of  their  proper  coun- 
tie.>!  in  certain  special  cases,  that  is  where 
the  goods  burglariously  taken  are  carried 
into  another  county  l)y  the  offenders;  but 


92 


BURGLARY. 


Evidence. 


this  is  by  positive  law,  and  not  because  tbe 
burglary  was  actually  committed  in  the 
county  wiiere  the  indictment  is  found,  or  in 
judgment  of  law  is  considered  to  have  been 
cdmmitted  there.  The  fact  must  therefore 
be  set  out  which  brings  the  case  within  the 
statute.  But  in  the  case  of  an  indictment 
for  a  simple  larceny  found  in  a  couuty  into 
which  the  thief  has  carried  the  property 
stolen  in  another  county,  the  law  adjudges 
that  the  offense  was  in  truth  committed 
there,  and  hence  there  is  no  occasion  for  a 
statement  in  the  pleading  of  what  occurred 
in  the  other  county.  Haskins  v.  People,  10 
N.  Y.  344. 

3.  Evidence.      ^ 

70.  The  breaking.  To  authorize  a  con- 
viction for  burglary,  it  must  be  proved  that 
the  doors  were  shut.  State  v.  Wilson,  Coxe, 
439.  Evidence  of  merely  such  an  entrance 
as  would  enable  the  party  injured  to  main- 
tain trespass  will  not  be  sufficient,  nor  proof 
of  an  entrance  obtained  by  stratagem,  with- 
out an  actual  breaking  or  its  equivalent. 
State  V.  Newbergin,  25  Maine,  500.  In. 
Ohio,  proof  of  the  constructive  breaking  or 
a  jail  is  sufficient  to  sustain  a  conviction  for 
a  forcible  breaking  and  entering.  Dutcher 
V.  State,  18  Ohio,  308.  Proof  of  breaking 
out  of  a  house  will  not  sustain  an  indictment 
for  breaking,  entering  and  stealing.  State 
V.  McPherson,  70  N.  C.  239;  s.  c.  2  Green's 
Crim.  Reps.  737. 

71.  Time  and  place.  On  the  trial  of  an 
indictment  for  burglary,  the  prosecution 
was  peinnitted  to  prove,  against  the  objec- 
tion of- the  defendant,  that  the  offense  was 
committed  at  a  time  and  place  admitted  to 
be  other  than,  and  distinct  from,  those 
mentioned  or  intended  to  be  charged  in  the 
indictment.  Eeld  error.  People  v.  Barnes, 
48  Cal.  551.  It  is  not  material  to  prove 
whether  or  not  there  was  sufficient  light  to 
distinguish  a  man's  face.  Thomas  v.  State, 
5  How.  Miss.  20. 

72.  Under  a  statute  making  it  a  crime  to 
break  and  enter  a  shop  with  a  felonious  in- 
tent, a  person  may  be  convicted  for  breaking 
and  entering  a  store.  State  v.  Smith,  5  La. 
An.  340. 


73.  An  indictment  for.  burglary  and  lar- 
ceny "  in  a  certain  building,  to  wit,  the  shop 
of  J.  D.,"  is  supported  by  proof  that  the 
building  in  which  the  complainant  had  his 
shop  contained  also  several  other  rooms 
occupied  by  tenants.  Com.  v.  Bowden,  14 
Gray,  103. 

74.  An  indictment  for  burglary  charged 
the  breaking  into  and  entering  a  store  in 
which  goods  were  kept  for  use,  sale  and 
deposit.  The  proof  showed  a  breaking  and 
entering  into  an  inner  room  of  a  building, 
which  room  was  not  a  store  but  a  mere 
business  office  of  the  board  of  underwriters. 
Held  that  the  variance  was  fatal.  People  v. 
Marks,  4  Parker,  153. 

75.  The  intent.  Under  an  indictment  for 
burglary,  it  need  not  be  proved  that  goods 
were  actually  stolen.  It  is  sufficient  if  the 
offense  was  committed  with  that  intention. 
Olive  V.  Com.  5  Bush,  376.  The  larceny,  if 
proved,  is  sufficient  evidence  of  the  intent. 
State  V.  Moore,  12  New  Hamp.  42. 

}  "O'B.  The  offense  of  burglary  is  complete  by 
the  breaking  and  entering  with  intent  to 
steaL'^  The  actual  larceny,  although  when  it 
can  be  proved  the  most  conclusive  evidence 
that  the  breaking  and  entering  was  to  steal, 
need  not  be  charged  in  the  indictment,  and 
when  charged  the  proof  of  it  is  not  neces- 
sarily the  only  proof  of  the  intent. '  But 
there  must  be  proof  of  some  fact  or  circum- 
stance, act  or  declaration  of  the  prisoner,  in 
addition  to  the  proof  of  the  mere  breaking 
and  entering,  from  which  the  jury  can  find 
the  intentTj  People  v.  Marks,  4  Parker,  153. 
In  New  Hampshire,  where  an  actual  stealing- 
was  charged  in  an  indictment  for  burglary, 
it  was  held  that  proof  of  an  intent  to  steal 
was  not  sufficient.  Jones  v.  State,  11  New 
Hamp.  269. 

77.  The  intent  with  which  the  defendant 
entered  may  be  proved  by  circumstances 
tending  to  show  that  a  felony  was  com- 
mitted in  a  store  adjoining.  Osborne  v. 
People,  2  Parker,  583. 

78.  On  the  trial  of  an  indictment  for 
breaking  and  entering  a  dwelling-house 
with  intent  to  commit  a  rape,  the  effects  of 
the  alleged  violence  upon  the  person  of  the 


-f; 


BURGLARY. 


93 


Evidence. 


female  may  be  proved.     Com.  v.  Doberty, 
10  Cush.  53. 

79.  The  premises.  To  sustain  an  in- 
dictment for  burglary  in  a  dwelling-house, 
it  must  be  proved  that  some  one  lived  in 
the  bouse.     Fuller  v.  State,  48  Ala.  273. 

80.  In  burglary,  the  tenure  by  whicli  the 
occupier  holds  the  premises  is  imma- 
terial. An  indictment  alleged  the  owner- 
ship of  a  storehouse  broken  into  to  be 
in  A.  and  B.  It  was  proved  to  have 
been  the  property  of  A.,  but  that  he  and 
B.  carried  on  mercantile  business  in  it, 
and  owned  the  goods  kept  therein  for  sale. 
The  court  charged  that  if  A.  and  B.  were 
doing  business  in  the  house  at  the  time  it 
would  be  a  sufficient  ownership.  Held  cor- 
rect.    White  V.  State,  49  Ala.  344. 

81.  On  the  trial  of  an  indictment  for 
breaking  and  entering  in  the  night  time  the 
building  of  J.  F.,  "  the  said  building  being 
then  and  there  occupied  by  said  J.  F.  as  a 
dwelling-house,"  it  was  proved  that  J.  F. 
left  the  house  and  deserted  his  family  two 
weeks  before  the  alleged  burglary.  Held 
no  variance.  Com.  v.  Dailey,  110  Mass. 
503. 

82.  On  the  trial  of  an  indictment  for 
burglary  in  breaking  and  entering  a  store- 
house, parol  evidence  of  possession  under  a 
written  lease  is  sufficient  without  the  pro- 
duction of  the  lease.  Houston  v.  State,  38 
Ga.  1G5. 

33.  Presumptions.  Where  it  was  proved 
that  the  door  had  been  forced  open,  it  was 
held  that  the  jury  might  infer  that  it  had 
been  previously  shut.  Com.  v.  Merrill, 
Thach.  Crim.  Cas.  1.  On  a  trial  for  burg- 
lary alleged  to  have  been  committed  in  the 
apartments  of  one  of  several  tenants  who  oc- 
cupied the  same  building,  the  wife  of  the 
complainant  testified  that  she  had  latched 
the  door  when  she  left  the  room,  about 
fifteen  minutes  before  siie  returned  and  dis- 
covered the  accused ;  that  the  hall  door  was 
also  latched  when  she  saw  it  about  ten 
minutes  previous,  and  that  both  doors  were 
generally  kept  closed.  Held^  that  this  evi- 
dence was  properly  admitted.  People  v. 
Bush,  3  Parker,  552. 

84.  It  is  not  a  presumption  of  law  that  a 


felonious  breaking  into  a  dwelling-house 
was  committed  in  the  night  rather  than  the 
day.  State  v.  Whit,  4  Jones,  349.  On  the 
trial  of  an  information  for  burglary,  the 
judge  charged  the  jury  as  a  matter  of  law, 
that,  "  when  a  building  is  left  secure  at 
night,  and  found  early  in  the  morning 
broken  open,  the  presumption  is  that  it  was 
broken  open  in  the  night,  and  that  this  pre- 
sumption obtains,  though  not  so  strongly,  if 
the  hour  of  discovery  be  so  late  as  half  past 
seven  o'clock  in  the  morning  of  the  loth  of 
April."  Held  error,  the  question  as  to  the 
time  of  the  breaking  and  entering  being  one 
of  fact  for  the  jury.  State  v.  Leaden,  35 
Conn.  515. 

85.  Identification  by  voice  alone  of  a  per- 
son charged  with  burglary,  whose  voice  had 
been  joreviously  heard  by  the  witnesses  but 
once,  may  be  sufficient.  Com.  v.  Williams, 
105  Mass.  62. 

86.  On  the  trial  of  an  indictment  for 
burglary,  evidence  that  the  defendant  was 
seen  in  the  neighborhood  on  the  day  preced- 
ing the  night  of  the  robbery ;  that  he  made 
inquires  about  purchasing  tobacco  in  a  man- 
ner which  showed  that  they  were  mere  pre- 
texts ;  that  he  apparently  had  some  connec- 
tion with  two  other  strangers,  is  com23etent, 
in  connection  with  the  testimony  of  the 
owner  of  the  house  entered,  that  the  de- 
fendant was  there  the  same  day,  and  that 
there  were  two  engaged  in  committing  the 
oflfense,  although  the  defendant  admitted 
that  he  was  at  the  house  that  afternoon- 
Com.  V.  Williams,  supra. 

87.  Under  an  indictment  charging  that 
the  defendant  broke  and  entered  a  shop  and 
stole  certain  articles  therefrom,  at  the  same 
time  jointly  with  his  brother,  it  is  proper  to 
show  that  the  two  brothers  occupied  rooms 
at  their  father's  house  at  the  same  time;  that 
some  of  the  stolen  articles  were  found  in  the 
house,  part  of  them  in  the  room  occupied  by 
the  brother,  and  part  mingled  with  the  de- 
fendant's property,  and  that  some  of  the 
property  was  found  in  the  defendant's  room 
at  another  place.  Com.  v.  Parmenter,  101 
Mass.  211. 

88.  Evidence  upon  the  question  of  guilty 
or  not  guilty  of  a  burglary  charged,  is  com- 


94 


BUKGLAKY. 


Evidence. 


potent  to  prove  the  attempt  to  commit  it. 
People  V.  Lixwtou,  56  Barb.  126. 

89.  Possession  of  burglars'  tools.  On 
the  trial  of  an  indictment  for  burglary, 
burglarious  tools  found  in  the  possession  of 
the  defendant  soon  after  the  commission  of 
the  offense,  may  be  given  in  evidence  when 
they  constitute  a  link  in  the  chain  of  cir- 
cumstances which  tend  to  connect  the 
defendant  with  the  particular  burglary 
charged.  People  v.  Winters,  29  Cal.  658. 
Evidence  that  such  tools  were  found  in  a 
trunk  belonging  to  the  defendant  eight  days 
after  the  crime  was  committed,  held  proper. 
State  V.  Dubois,  49  Mo.  573. 

90.  Proof  that  burglarious  implements 
found  at  the  place  of  the  burglary  were 
made  for  T.,  held  competent  to  show  the 
guUt  of  the  prisoner,  the  prosecution  having 
given  other  evidence  connecting  the  prisoner 
with  T.  in  the  commission  of  the  crime. 
Clark  V.  People,  5  N.  Y.  Supm.  N.  S.  33. 

91.  The  following  was  held  sufficient  evi- 
dence of  an  attempt  to  commit  a  burglary : 
The  prisoner,  having  rccounoitered  the 
premises,  agreed  with  tlie  witness  that 
about  one  o'clock  that  night  they  would 
commit  a  burglary  by  entering  a  certain 
store;  in  pursuance  of  such  design  and 
agreement,  at  about  the  hour  of  one  they 
went  to  the  store  through  the  alley  in  its 
rear;  the  prisoner  carried,  or  caused  to  be 
carried  there,  a  set  of  burglar's  tools  to  aid 
them  in  committing  the  burglary;  when 
they  arrived,  the  prisoner  suggested  that 
none  of  the  tools  were  strong  enough  to  en- 
able them  to  force  an  entrance;  they  then 
concluded  to  enter  a  blacksmith's  shop  close 
by,  in  order  to  get  a  crowbar,  or  some  other 
tool  with  which  to  break  into  the  store,  and 
before  they  entered  the  shop  an  alarm  was 
given  and  they  were  intercepted  and  pre- 
vented from  executing  their  intended  pur- 
pose.    People  V.  Lawton,  56  Barb.  126. 

92.  Possession  of  stolen  property.  On 
the  trial  of  an  indictment  for  burglary  and 
larceny,  it  is  not  erroneous  for  the  court  to 
charge  the  jury  that  the  finding  of  the  stolen 
property  shortly  after  it  was  taken,  is  pre- 
sumptive evidence  of  the  guilt  of  the  person 
in  whose  possession  it  was  found,  it  being 


competent,  under  the  indictment,  to  convict 
the  prisoner  either  of  simple  larceny  or  of 
burglary  and  larceny.  It  is  not  erroneous  for 
the  court  in  such  case  to  refuse  to  charge  that 
the  finding  of  the  property  in  the  possession 
of  the  defendant  unaccompanied  by  any  sus- 
picious circumstances,  was  no  evidence  that 
she  committed  the  burglary  ;  it  being  some 
evidence  of  that  f?ct  even  if  not  prima  facie 
of  her  guilt  of  the  burglaiy.  Jones  v.  Peo- 
ple, 6  Parker,  126 ;  Davis  v.  People,  1  lb.  4^7. 

93.  Other  offense.  On  a  trial  for  burglary, 
it  is  not  competent  to  prove  that  the  defend- 
ant committed  a  burglary  in  the  same  house 
on  a  former  occasion.  Lightfoot  v.  People, 
16  Mich.  507,  Graves,  J.,  dissenting. 

94.  On  the  trial  of  an  indictment  for 
breaking  and  entering  the  City  Hall  of 
Charlestown,  the  prosecution  ofi'ered  evi- 
dence to  prove  that  the  ward  of  a  certain 
key  found  in  the  prisoner's  possession  was 
made  and  fitted  by  him  to  open  the  door  of 
the  Lancaster  Bank  building.  Held,  that 
such  evidence  was  improper.  Com.  v.  Wil- 
son, 2  Cush.  590. 

95.  On  a  trial  for  burglary  in  breaking 
open  a  barn  and  stealing  goods  therefrom, 
the  evidence  showed  that  the  goods  were 
discovered  five  days  subsequent  to  the  burg- 
lary on  the  prisoner's  boat.  Held,  error  to 
allow  the  prosecution  to  prove  that  ether 
goods  were  found  on  the  prisoner's  boat 
which  had  been  stolen  from  another  person 
two  or  three  weeks  previous  to  the  trans- 
action in  question.  Hall  v.  People,  6  Parker, 
671. 

96.  On  a  trial  for  burglary,  other  criminal 
acts  than  those  charged  may  be  proved  to 
show  guilty  knowledge,  establish  identity, 
make  out  the  res  gestce,  or  complete  the 
chain  of  circumstantial  evidence.  Mason  v. 
State,  42  Ala.  532.  But  evidence  of  other 
distinct  burglaries  committed  by  the  de- 
fendant is  2^rima  facie  irrelevant,  and  when 
the  record  does  not  show  any  ground  for  the 
admission  of  such  evidence,  the  court  will 
not  examine  the  record  of  another  case 
between  the  same  parties  to  show  that  no 
error  was  committed.  Mason  v.  State,  43 
Ala.  532. 


BURGLARY.— CEMETERY.— CERTIORAKI. 


95 


Verdict. 


Desecration  of. 


When  it  will  Lie. 


4.  Verdict. 

97.  Form.  On  a  trial  for  burglary,  the 
following  verdict,  "  We,  the  jury,  find  the 
accused  guilty  of  burglary,  and  find  that 
the  offense  was  committed  since  the  first  day 
of  June,  18G6,  by  agreement  of  counsel,"  is 
sufficient.  Mountain  -v.  State,  40  Ala.  344. 
Byrd,  J.,  dissenting. 

98.  The  prisoner  may  be  found  guilty  of 
an  attempt  to  commit  the  burglary  charged 
in  the  indictment.  People  v.  Lawton,  56 
Barb.  136. 

J8d.  In  case  of  larceny.  Under  an  in- 
i/^lictmcnt  charging  a  breaking,  entering,  and 
stealing,  the  defendant  may  be  acquitted  of 
the  burglary  and  found  guilty  of  the  larceny. 
Clarke  v.  Com.  25  Graft.  908;  State  v. 
Crocker,  3  Harring.  559 ;  People  v.  Snyder, 
2  Parker,  23 ;  State  v.  Brandon,  7  Kansas, 
106 ;  State  v.  Warner,  14  Ind.  572. 
^_^^»^0.  In  Maine,  the  prosecuting  attorney 
may  enter  a  nolle  prosequi  as  to  the  breaking 
and  entering,  and  leave  the  defendant  to  be 
punished  for  the  larceny  only.  Anon.  31 
Maine,  592, 

101.  In  Alr.bama,  under  the  statute  (Rev. 
Code,  §  3695),  under  an  indictment  charging 
that  the  defendant  broke  and  entered  a 
building  with  intent  to  steal,  and  feloniously 
took  and  carried  away  personal  property, 
there  may  be  a  conviction  of  either  burglary 
or  larceny,  or  of  both.  But  in  the  latter 
case  the  defendant  can  be  sentenced  to  only 
one  punishment.     Bell  v.  State,  48  Ala.  684. 

102.  Where  the  breaking  and  entering  and 
stealing  are  charged  in  distinct  counts  as 
separate  offenses,  committed  at  different 
times,  the  defendant  may  be  convicted  on 
both,  and  a  judgment  rendered  on  both. 
Joslyn  V.  Com.  6  Mete.  236.  An  indictment 
contained  two  counts,  the  first  of  which 
alleged  that  the  defendant  broke  and  en- 
tered a  house  with  intent  to  steal,  and  stole 
therefrom  certain  goods.  The  second  count 
charged  a  simple  larceny  of  the  same  goods. 
Held,  that  the  first  count  was  for  house- 
breaking, and  not  larceny,  and  that  the  jury 
might  find  the  defendant  guilty  on  each 
count,  and  fix  a  several  ])unishment  for  each 
offense.  Speers  v.  Com.  17  Graft.  570.  See 
Vaujhaa  v.  Com.  lb.  576. 


Carnjing     Couccalci) 

See  Concealed   weapons. 


Ccmctcn). 

1.  Desecration  of.  On  the  trial  of  an 
indictment  for  wrongfully  desecrating  and 
disfiguring  a  public  burying  ground,  it  is 
competent  to  prove  that  a  particular  tract 
of  land  is  such,  by  showing  its  use  and 
occupation  for  that  purpose  by  others  than 
the  owners  of  the  soil,  and  if  it  has  once 
acquired  that  character  it  does  not  cease  to 
have  it  by  mere  disuse.  Com.  v.  Wellington, 
7  Allen,  299. 

2.  Under  an  indictment  for  wrongfully 
desecrating  and  disfiguring  a  public  burying 
ground  particularly  described  by  metes  and 
bounds,  the  whole  description  must  be 
proved  exactly  as  set  forth.  It  is,  therefore 
erroneous  to  charge  the  jury  that  the  de- 
fendant may  be  convicted  if  it  is  shown 
that  a  part  of  the  land  described  in  the 
indictment  as  a  burying  ground  has  been  so 
used,  and  that  the  acts  were  done  by  him  in 
that  part.     Com.  v.  Wellington,  supra. 

3.  Removal  of  dead  bodies.  A  statute 
which  empowers  boards  of  health  "  to  make 
all  regulations  which  they  judge  necessary 
concerning  burial  grounds  and  interments 
within  their  respective  limits "  is  not  re- 
stricted in  its  operation  to  acts  done  within 
burial  grounds,  but  includes  the  removal  of 
dead  bodies.  Com.  v.  Goodrich,  13  Allen. 
546. 

See  Disinterring  the  dead. 


Certiorari. 

1.  When  it  will  lie. 

2.  Form. 

3.  Service. 

4.  Return. 

5.  Judgment. 

1.  When  it  will  lie. 
1.  Basis  of  appbcation.    An  application 


90 


CEETIORARI. 


When  it  will  Lie. 


Form. 


for  a  writ  of  certiorari  is  based  upon  the 
irregularity  of  the  proceedings  in  the  cause 
apparent  upon  the  record  and  documents 
properly  before  the  court  upon  a  return  of 
the  same  to  the  magistrate.  Stratton  v. 
Com.  10  Mete.  217. 

2.  "When  proper.  A  certiorari  is  the 
proper  writ,  where  a  statute  creating  an  in- 
ferior criminal  court  has  provided  no  meaug 
to  review  its  judgment.  John  v.  State,  1 
Ala.  95.  It  will  lie  to  all  inferior  jurisdic- 
tions, the  proceedings  of  which  cannot  be 
corrected  by  writ  of  error,  to  remove  their 
proceedings  into  the  Superior  Court.  Bob 
V.  State,  2  Yerg.  176.  When  a  removal  of 
the  case  is  essential  to  the  due  administra- 
tion of  justice,  an  allowance  of  the  writ 
will  be  granted  to  the  defendant  as  of 
course.  Com.  v.  McGinnis,  2  Whart.  117; 
Com.  V.  Profit,  4  Binn.  428 ;  Com.  v.  Lyon, 
4  Dall.  303 ;  People  v.  Ptunkel,  6  Johns.  334. 

3.  "When  demandable.  Where  a  person 
entitled  to  an  appeal  is  denied  such  right, 
or  deprived  of  it  by  fraud,  or  accident,  or 
inability  to  comply  with  the  requirements  of 
the  law,  he  is  entitled  to  have  the  whole  case 
brought  ujj  by  certiorari.  State  v.  Bill,  13 
Ired.  373. 

4.  Under  the  statute  of  New  York.  The 
office  of  a  writ  of  certiorari  after  trial  and 
before  judgment,  under  the  New  York  Re- 
vised Statutes,  is  to  bring  up  the  indictment, 
the  proceedings  on  the  trial,  and  any  bill  of 
exceptions  that  may  have  been  taken ;  and  it 
presents  for  review  only  the  questions  aris- 
ing on  the  indictment  and  bill  of  exceptions. 
People  v.  Reagle,  GO  Barb.  527;  Ex  jmrte 
Vermilyea,  G  Cow.  555.  A  certiorari  to 
remove  an  indictment  from  the  Oyer  and 
Terminer  to  the  Supreme  Court,  may  issue 
at  the  instance  of  the  counsel  for  the  prose- 
cution.    People  V.  Baker,  3  Parker,  181. 

5.  Where  there  has  been  a  conviction  in 
the  Oyer  and  Terminer,  and  sentence  is 
stayed,  the  proceedings  may  be  removed  to 
the  Supreme  Court  by  certiorari.  But  when 
there  is  a  conviction  and  judgment,  the  pro- 
ceedings can  only  be  so  removed  by  writ  of 
error ;  and  when  the  irregularity  is  of  such 
a  nature  that  it  cannot  be  properly  embraced 
in  the  return  to  the  writ  of    error,  but  the  I 


same  has  become  part  of  the  proceedings,  a 
certiorari  may  also  issue  to  bring  up  such 
proceedings.  Where  the  irregularity  com- 
plained of  has  not  been  introduced  into  the 
record  or  proceedings,  so  as  to  constitute  it 
a  proper  subject  to  be  returned  to  the  writ 
of  error  or  certiorari,  affidavits  may  be  read 
upon  the  argument  after  the  writ  of  error 
has  been  returned,  but  not  before,  to  correct 
an  error  arising  out  of  an  irregularity  preju- 
dicial to  the  rights  of  the  prisoner,  when  he 
has  no  other  legal  mode  of  redress.  Willis 
V.  People,  5  Parker,  G21. 

6.  In  New  York,  where  after  the  prisoners 
had  been  sentenced  in  the  Court  of  Special 
Sessions,  counsel  desired  the  court  to  note 
an  appeal  to  the  Court  of  General  Sessions 
for  a  rehearing,  and  it  was  objected  that 
after  such  appeal,  the  court  erred  in  commit- 
ting the  prisoners  to  the  penitentiary,  it  was 
held  that  the  action  of  the  court  could  not 
be  reviewed  by  certiorari.  The  remedy  in 
such  case,  would  be  to  offer  the  Special  Ses- 
sions bail  for  trial  at  the  General  Sessions, 
and  if  this  were  refused,  to  procure  the 
release  of  the  prisoner  pending  the  new 
trial,  upon  habeas  corpus  issued  for  the  pur- 
pose of  fixing  and  taking  such  bail.  Gill  v. 
People,  5  N.  Y.  Supm.  N.  S.  308. 

2.  Form. 

7.  In  general.  A  certiorari  for  the  re- 
moval of  an  indictment  against  four,  will  not 
remove  an  indictment  which  charges  only 
three.     Com.  v.  Franklin,  4  Dallas,  316. 

8.  It  is  proper  to  insert  a  special  clause 
in  a  certiorari,  directing  it  to  operate  as  a 
supersedeas,  and  also  to  direct  a  special  writ 
of  supersedeas  to  the  sheriflf  to  delay  execu- 
tion until  the  case  is  heard  and  determined. 
John  V.  State,  1  Ala.  95. 

9.  A  common-law  certiorari  to  remove  a 
summary  conviction  had  before  a  magis- 
trate, is  not  confined  to  questions  touching 
the  jurisdiction  of  the  subordinate  tribunal 
and  the  regularity  of  its  proceedings,  but 
also  brings  up  the  question  whether  there 
was  any  evidence  to  warrant  the  conviction. 
Mullius  V.  People,  24  N.  Y.  399. 

10.  In  special  cases.  For  the  form  of  a 
certiorari  to  bring  up  the  proceedings  from 


CEKTIORAET. 


Service. 


Return. 


Judgment. 


a  Court  of  Special  Sessions,  and  for  a  form 
of  the  return  thereto,  see  People  v.  Benja- 
min, 2  Parker,  201.  For  the  form  of  such  a 
writ  to  remove  a  decision  on  habeas  corjms 
and  the  return  to  the  same,  see  People  v. 
Cavanagh,  lb.  GoO. 

3.  Service. 

11.  Upon  whom  made.  The  certiorari  may 
be  served  bj'  delivering  it  to  the  clerk  of 
the  court  below,  during  vacation,  who  may 
return  it  immediately,  notwithstanding  it 
be  directed  to  the  court.  Lambert  v.  Peo- 
ple, 7  Cow.  103.  It  should  be  directed  to 
the  court,  and  not  to  the  clerk.  The  ap- 
pellate court  will  not  grant  a  rule  upon  the 
clerk  of  the  court  below,  to  return.  Such 
rule  should  be  directed  to  the  court  below, 
who  should  order  their  clerk  to  return,  if  he 
refuse.     lb. 

4.  Return. 

12.  Order  for.  An  order  that  "  the  trial 
of  the  jirosecution  shall  be  removed,"  &c., 
is  sufficient,  without  directing  that  "a  copy 
of  the  record  of  the  said  cause  be  re- 
moved," &c.  State  V.  Shepherd,  8  Ired. 
195. 

13.  Contents  of.  When  the  certiorari  is  to 
bring  up  a  record  to  be  given  in  evideuce,  or 
for  other  collateral  purpose,  the  tenor  only 
of  the  record  is  to  be  called  for  and  certi- 
fied ;  but  it  is  otherwise  where  the  court 
above  is  to  take  further  proceedings.  The 
indictment  presented  by  the  grand  jury 
does  not  come  up  with  the  certiorari,  but 
the  record  only  which  contains  the  whole 
proceedings.     State  v. gibbous,  1  South.  40. 

14.  In  sending  up  a  transcript  of  record 
in  obedience  to  a  certiorari,  the  transcript 
need  not  be  affixed  to  the  writ  of  certiorari, 
if  enough  appears  to  show  the  court  that  it 
is  in  fact  the  proper  transcript.  State  v. 
Carroll,  5  Ired.  139. 

15.  In  New  York,  where  judgment  is 
stayed  by  a  certificate,  the  statute  requires 
the  district  attorney  to  remove  the  indict- 
ment and  bill  of  exceptions  by  certiorari 
from  the  Oyer  and  Terminer  into  the  Su- 
preme Court,  and  the  clerk  is  required  to 
return  thereto    a  triinscript   of    the  indict- 

7 


ment,  bill  of  exceptions,  and  the  certificate 
staying  judgment.  Hill  agst.  People,  10  N. 
T.  4G3. 

16.  Where  the  trial  is  before  a  magistraf.e 
witliout  a  jury,  a  certiorari  may  require  the 
return  of  the  evidence  for  the  consideration 
of  the  superior  tribunal,  though  it  is  other- 
wise where  there  has  been  a  trial  by  jury. 
Barringer  agst.  People,  14  N.  Y.  593. 

17.  In  New  York,  the  magistrate  to  whom 
a  certiorari  is  issued  to  remove  proceedings 
had  before  him,  under  the  statute  respecting 
disorderly  persons,  must  set  out  in  his  re- 
turn all  the  proceedings  before  him.  Ben- 
nac  V.  People,  4  Barb.  164. 

18.  Correction  of.  The  statute  of  New 
York,  prescribing  the  contents  of  the  return 
to  be  made  by  the  clerk  in  criminal  cases, 
and  declaring  that  the  court  shall  proceed 
upon  that  return,  and  render  judgment  upon 
the  record  before  them,  does  not  limit  the 
general  power  of  the  court  to  correct  and 
redress  all  errors,  and  for  that  purpose,  to 
bring  before  it  such  proceedings  in  a  cause 
not  fully  presented  in  the  record  made  up 
in  the  court  below,  as  may  be  important  to 
enable  it  to  do  so.  That  portion  of  the 
return  which  is  additional  to  the  formal 
record  of  judgment  and  bill  of  exceptions, 
if  it  describes  facts  which  might  be  as- 
signed for  error,  is  entitled  to  like  consid- 
eration, and  to  have  the  same  effect  as  if 
returned  by  certiorari.  Cancemi  v.  People, 
18  N.  Y.  128. 

19.  In  New  Jersey,  when  an  indictment 
has  been  removed,  the  court  will  allow  a 
rule  to  return  the  record  to  the  court  below 
for  the  purpose  of  amending  the  caption. 
State  V.  Jones,  4  Halst.  2.  The  record  is 
not  sent  with  the  writ,  but  the  tenor  only. 
Nicholls  V.  State,  2  South.  542.  Form  of 
record  to  be  returned.     lb.  74(5. 

20.  Cannot  be  refused.  The  court  to 
which  the  certiorari  is  directed  has  no 
power  to  refuse  to  return  the  indictment. 
State  V.  Hunt,  Coxe,  287. 

5.  Judgment. 

21.  By  what  court  rendered.  In  New 
York,  Vi^here  an  indictment  is  taken  into  the 
Supreme  Court  by  certiorari,  and  tried  at 


98 


CERTIOKAEL— COMMITMEA^T. 


Judgment. 


Jurisdiction  of  Court. 


the  circuit,  it  is  competeut  and  proper  for 
the  Supreme  Court  at  general  term,  to  pro- 
nounce judgment.  Cancemi  v.  People,  16 
N.  Y.  501. 

22.  Ground  of.  In  Xew  York,  upon  a 
certiorari  to  a  court  of  Special  Sessions,  the 
Supreme  Court  cannot  reverse  the  con- 
viction on  the  ground  that  the  verdict  is 
against  the  weight  of  evidence.  But  it  may 
look  into  any  other  errors  in  the  proceedings 
and  judgment  which  appear  on  the  face  of 
the  return.     Pulling  v.  People,  8  Barb.  384. 


Cl)allcugc. 

See  Dueling;  Trial. 


£!]cat. 


See  False  prktensss. 


Commitment. 


1.  Jurisdiction  of  court.  Where  delay  in 
issuing  a  warrant  of  commitment  was  occa- 
sioned by  the  bond  and  other  proceedings 
on  the  part  of  the  relator  to  appeal  from  the 
judgment,  and  the  cause  was  not  removed 
by  him  from  the  Special  Sessions,  it  was  held 
that  the  latter  did  not  lose  jurisdiction  to 
issue  the  warrant,  by  lapse  of  time.  People 
V.  Kawson,  61  Barb.  619;  s.  p.  People  v. 
Yates  Gen.  Sess.  5  Wend.  110. 

2.  In  New  York,  a  justice  of  the  peace,  on 
an  examination  upon  a  comi^laint  made  be- 
fore him  in  a  criminal  case,  has  not  power  to 
commit  a  person  to  jail  for  refusing  to  be 
sworn  as  a  witness.  People  v.  Webster,  3 
Parker,  503. 

3.  Where  a  magistrate  after  an  exami- 
nation has  decided  that  the  person  com- 
plained against  shall  give  security  to  keep 
the  peace,  it  is  his  duty  to  commit  the  ac- 
cused if  he  refuses  to  do  so;  and  he  may  is- 
sue his  warrant  of  commitment  on  the  fol- 
lowing day,  although  he  has  in  the  mean 
time  allowed  the  accused  to  go  at  large. 
Gano  V.  Hall,  5  Parker,  Gol ;   42  N.  Y.  67. 


4.  Form  and.  requisites  of  the  warrant. 
The  warrant  of  commitment  should  run  in 
the  name  of  the  State,  and  specify  the  offense 
with  which  tiie  defendant  is  charged,  or  of 
which  he  has  been  convicted.  Ex 2)iirte'Ro\\%, 
5  Ark.  104.  But  when  a  bench  warrant  and 
warrant  of  commitment  are  issued  after  in- 
dictment, it  is  only  necessary  for  them  to 
recite  the  presentment,  and  the  crime  gene- 
rally.    Brady  v.  Davis,  9  Ga.  73. 

5.  When  a  court  in  session  orders  a  com- 
mitment, the  minute  is  sufficient  authority 
to  the  officer.  No  v.'rit  is  necessary.  State 
V.  Heathman,  Wiight,  690. 

6  Where  a  mittimus  was  irregular  so  far 
as  it  required  the  prisoner  to  pay  a  specified 
sum  as  costs,  but  was  regular  iuothei- re- 
spects, it  was  held  that  the  clause  relating 
to  costs  might  be  rejected  as  surplusage. 
State  V.  James,  37  Conn.  855 ;  approving 
matter  of  Sweatman,  1  Cow.  144. 

7.  Where  two  justices  of  the  peace  signed 
a  mittimus,  and  added  the  initials  J.  P.,  it 
was  held  that  the  process  was  sufficient  to 
authorize  an  officer  to  hold  the  defendant, 
State  V.  Manly,  1  Overt.  428. 

8.  In  New  York,  no  seal  is  necessary  to 
a  warrant  of  commitment ;  the  statute  only 
providing  that  it  shall  be  under  the  hand  of 
the  magistrate.  People  v.  Rawsou,  61  Barb. 
619;  Gano  v.  People,  5  Parker,  651;  42  N. 
Y.  67. 

9.  A  commitment  is  irregular  in  not  show- 
ing on  its  face  that  the  justice  had  deter- 
mined tliat  there  was  probable  cause  to  be- 
lieve the  prisoner  guilty  of  the  oiiensc  with 
which  he  stood  charged.  People  v.  Rhoner, 
4  Parker,  166.  * 

10.  Where  on  a  charge  of  larceny  the  mag- 
istrate temporarily  commits  the  accused  for 
further  examination,  the  commitment  need 
not  state  whether  it  is  grand  or  petit  larceny, 
or  what  articles  are  alleged  to  have  been 
stolen.     People  v.  Nash,  5  Parker,  473. 

11.  A  commitment  issued  upon  a  con- 
viction before  a  New  York  court  of  Special 
Sessions  was  objected  to  on  the  ground  that 
it  did  not  set  forth  that  the  defendants  when 
brought  before  the  magistrate  requested  to 
be  tried  before  a  court  of  Special  Sessions, 
or  that  having  been  required  by  the  mag- 


COMMITMENT.— COMMOI^  DRUNKAED.— COMPLAINT.    99 


Form  and  Requisites  of  the  Warrant. 


Who  is. 


Venue. 


istrate  to  give  bail,  they  omitted  lor  twenty- 
four  hours  to  do  so,  or  whether  they  de- 
manded a  jury.  Held  that  such  statements 
in  the  commitment  were  unnecessary.  People 
V.  Moore,  3  Parker,  465. 

12.  A  warrant  of  commitment  for  petit 
larceny  directing  the  officer  to  convey  and 
deliver  the  prisoner  to  the  keeper  of  the 
prison,  and  directing  the  keeper  to  safely 
keep  the  prisoner  until  the  expiration  of  six 
months,  and  until  he  should  pay  the  fine,  is 
in  proper  form.  People  v.  Rawson,  61  Barb. 
619. 

13.  A  commitment  which  directs  the  jailer 
to  keep  the  prisoner  "  until  discharged  by 
due  order  of  law,"  is  too  general.  The  com- 
mitment should  be  more  specific,  so  as  to 
leave  nothing  to  the  jailer's  judgment  or 
discretion  as  to  when  or  under  what  circum- 
stances the  prisoner  is  entitled  to  his  dis- 
charge. But  such  a  defect  is  not  a  ground 
for  a  writ  of  certiorari.  Kenney  v.  State,  5 
R.  I.  385. 


Commoit  Drunkavb. 

1.  "Who  is.  An  habitual  drunkard  is  one 
who  is  in  the  habit  of  getting  drunk,  or  who 
is  commonly  or  frequently  so,  although  he 
may  not  be  constantly  in  that  condition. 
Where  it  was  proved  that  A.  used  liquor  to 
excess  on  certain  occasions,  and  a  witness 
said  he  had  seen  him  the  worse  for  liquor 
several  times,  and  another  witness  testified 
that  A.  was  a  dissipated  man,  it  was  held 
that  the  evidence  tended  to  show  that  A. 
was  an  habitual  drunkard.  State  v.  Pratt, 
■n  Vt.  32:3. 

2.  Complaint.  A  complaint  for  being  a 
common  drunkard  which  alleges  that  the 
defendant  at  B.,  "  on  divers  days  and  times, 
not  less  than  three  times,  within  six  months 
last  past,  was  drunk  by  the  voluntary  use  of 
intoxicating  liquor,  and  so,  on  the  day  of 
making  the  complaint,  was  a  common 
drunkard,"  is  argumentative  and  insufficient. 
Com.  V.  Whitney,  5  Gray,  85.  But  it  need 
not  be  shown  that  the  defendant  was  drunk 
in  such  a  way  as  to  disturb  the  public  peace. 
Co:n.  V.  Coniey,  1  Allen,  0. 


3.  Evidence.  A  person  may  be  convicted 
of  being  a  common  drunkard  without  proof 
that  he  is  constantly  intoxicated,  or  even 
that  his  drunkenness  is  of  daily  occurrence; 
the  word  "common"  in  this  connection  im- 
porting frequency.  Com.  v.  McNamee,  113 
Mass.  285. 

4.  Where  it  was  charged  that  the  de- 
fendant was  a  common  drunkard  on  the  1st 
of  Januaiy,  "  having  been  at  divers  days  and 
times  since  said  1st  day  of  Januarjf  drunk 
and  intoxicated,"  it  was  held  that  the  evi- 
dence must  be  confined  to  acts  done  on  a 
single  day.  Com.  v.  Foley,  99  Mass.  499. 
See  Intoxication  as  a  defense. 


Complaint 


1.  Venue.  AVhen  the  county  sufficiently 
appears  in  the  body  of  a  complaint,  the  want 
of  venue  in  the  margin,  is  not  material. 
Com.  V.  Quin,  5  Gray,  478. 

2.  Allegation  of  time.  A  complaint  for 
a  violation  of  the  law  prohibiting  the  sale 
of  intoxicating  liquor,  which  charges  that 
the  sale  was  made  on  a  certain  day  and 
month,  and  at  divers  other  times,  without 
stating  the  year,  is  insufficient ;  and  the 
allegation  of  a  former  conviction  without 
stating  the  time  of  such  conviction,  is  also 
defective.     State  v.  Kennedy,  36  Vt.  563. 

3.  A  complaint  to  a  magistrate  who  has 
authority  on  a  trial  thereof  to  pass  sentence 
on  the  defendant,  which  alleges  that  the 
offense  was  committed  on  "  the  third  day  of 
June  instant,"  without  mentioning  the  year, 
is  insufficient,  although  it  is  recited  at  the 
foot  of  the  complaint,  that  it  was  "received 
and  sworn  to  on  the  4th  day  of  June,  A.  D. 
1855."  Com.  V.  Hutton,  5  Gray,  89.  Where 
the  year  of  the  commission  of  an  ofi'ense  is 
stated  in  an  indictment  or  complaint  in 
figures,  without  the  letters  "A.  D."  it  will  be 
sufficient.  Com.  v.  McLoon,  lb.  91 ;  Com.  v. 
Doran,  14  lb.  37 ;  contra,  Com.  v.  Sullivan, 
lb.  07. 

4.  A  complaint  which  alleges  that  the 
defendant  on  Saturday,  the  2d  of  August, 
1856,  permitted  certain  persons  to  play  at 
billiards    "  after  the  hour  of  six  o'clock  in 


100 


COMPLAINT. 


Necessary  Averments. 


Waiver  of  Objection. 


the  afternoon  on  Saturday,  the  2d  of  August, 
aforesaid,"  is  sufficiently  definite  as  to  time. 
Com.  V.  Crawford,  9  Gray,  128. 

5.  Necessary  averments.  Every  person 
is  presumed  to  have  a  christian  name  until 
the  contrary  is  made  to  appear  by  proper 
averment.  "Where  a  complaint  for  assault 
and  batteiy  only  contained  the  initials  of  the 
defendant's  christian  name,  and  did  not 
allege  that  he  had  no  christian  name  or  that 
it  was  unknown,  it  was  held  that  the  com- 
plaint was  fatally  defective,  and  that  the  ob- 
jection could  be  raised  by  motion  to  quash. 
Gardner  v.  State,  4  Ind.  G32.  Same  held  as 
to  indictment  for  forgery.  Zellers  v.  State, 
7  Ind.  659. 

6.  A  complaint  for  disobeying  an  order  of  a 
health  officer,  should  either  allege  specifical- 
ly the  acts  which  the  defendant  neglected  to 
do,  or  at  least  that  he  did  not  comply  with 
the  order.  A  general  allegation  of  disobe- 
dience is  not  sufficient;  but  it  is  otherwise 
as  to  the  averment  that  the  order  was  "sub- 
stantially as  follows."  The  allegation  that 
the  defendant  "  did  disobey  a  lawful  order 
of  the  health  officer  of  said  city  after  the 
same  had  been  duly  served  upon  him,"  is  an 
assumption  and  not  an  ucerment  of  the  fact 
of  service,  and  therefore  insufficient.  And 
where  the  complaint  did  not  allege  that  the 
city  had  imposed  any  penalty  for  the  neglect 
complained  of,  or  that  it  had  passed  any 
ordinance  on  the  subject,  it  was  held  defect- 
ive on  that  ground.  State  v.  Soragan,  40 
Vt.  450. 

7.  A  complaint  under  a  statute  concern- 
ing willful  and  malicious  injuries  to  personal 
property  is  bad  which  alleges  the  malicious 
destruction  of  cabbages,  in  not  showing  that 
the  cabbages  were  personal  property.  Com. 
V.  Dougherty,  6  Gray,  349. 

8.  When  the  complaint  misrecites  the  act 
alleged  to  have  been  violated,  it  is  fatally 
defective.  Com.  v.  Unknown,  G  Gray,  489. 
But  a  complaint  which  charges  an  assault 
upon  two  persons,  is  not  for  that  reason  bad. 
Keuney  v.  State,  5  R.  I.  385. 

9.  Conclusion.  Where  a  complaint  for 
disobeying  the  order  of  a  health  officer  con- 
cluded   "  contrary   to   the   form,  force   and 


effect  of  the  ordinance  of  said  city,"  it  was 
held  that  it  should  have  concluded  against 
the  statute  and  the  peace  and  dignity  of  the 
State.     State  v.  Soragan,  40  Vt.  450. 

10.  Execution.  Under  a  statute  (R.  S.  of 
of  Mass.  ch.  135,  §  2),  requiring  the  magis- 
trate to  reduce  the  complaint  to  writing 
"  and  cause  the  same  to  be  subscribed  by  the 
complainant,"  the  signature  must  be  at  the 
foot  of  the  complaint.  Com.  v.  Barhight,  9 
Gray,  113. 

11.  Where  a  comjjlaint  is  made  before  a 
justice  of  the  peace  by  the  complainant 
personally,  and  the  usual  oath  taken  by  the 
justice  to  the  complaint,  which  is  signed 
by  the  complainant  by  affixing  his  mark, 
there  need  not  be  an  attesting  witness 
to  the  mark.  Com,  v.  Sullivan,  14  Gray, 
97. 

12.  The  certificate  of  the  clerk  of  a  police 
court,tbat  the  complaint  addressed  to  the  jus- 
tice was  "received  and  sworn  to,"  sufficiently 
shows,  in  the  absence  of  any  evidence  to  the 
contrary,  that  it  was  received  and  sworn  to 
before  the  court  when  in  session.  Com.  v. 
Calhaue,  110  Mass.  498. 

13.  Amendment.  In  New  Hampshire  a 
complaint  before  a  police  court,  which  alleges 
that  the  defendant  broke  and  entered  a 
dwelling-house  and  committed  an  assault 
and  battery  upon  the  owner,  cannot  be 
amended  by  striking  out  the  averment  as  to 
the  breaking  and  entering,  so  as  to  leave 
it  a  complaint  for  simple  assault  and  battery. 
State  V.  Runnals,  49  New  Hamp.  498. 

14.  Waiver  of  objection.  The  complaint 
before  the  committing  magistrate  for  assault 
and  battery  was  against  Cahew;  but  the  de- 
fendant, whose  name  was  Cahill,  appeared 
and  answered  without  objection.  Held,  that 
an  exception  taken  on  the  trial,  was  prop- 
erly overruled.  State  v.  Thompson,  20  New 
Hamp.  350. 

15.  In  Vermont,  the  objection  that  a 
memorandum  of  the  witness  is  not  subjoined 
to  a  grand  juror's  comjDlaint,  is  in  the  na- 
ture of  a  dilatory  plea,  and  must  be  made  at 
the  earliest  possible  time,  otherwise  it  will 
be  deemed  waived.  State  v.  Norton,  45  Vt, 
258. 


CONCEALED   WEAPONS.— CONSPIRACY. 


101 


What  are. 


What  Constitutes. 


Couccalc&   lU  cap 0110, 

1.  What  are.  An  instrument  may  be 
deadly  or  not  deadly,  according  to  the  mode 
of  using  it,  or  the  subject  on  which  it  is 
used.  Whether  or  not  it  is  deadl^^  is  in 
general  to  be  determined  by  the  court.  An 
oaken   staflF,  nearly  three  feet  long,  an  inch 

.and  a  half  in  diameter  at  one  end,  and  two 
inches  at  the  other,  may  be  a  deadly  weapon. 
State  V.  West,  6  Jones,  505.  But  when  a 
gun  or  pistol  is  used  simjily  as  an  instrument 
to  strike  with,  it  is  for  the  jury  to  determine 
whether  or  not  it  is  a  deadly  weapon.  Shadle 
V.  State,  34  Texas,  572.  A  pistol  that  has  no 
lock,  and  can  only  be  fired  by  the  use  of  a 
match,  or  in  some  other  such  way,  is  not  a 
pistol  within  the  statute  of  Alabama  prohib- 
iting the  carrying  of  concealed  weapons. 
Evins  V.  State,  4G  Ala.  88. 

2.  A  person  who,  in  the  room  of  another 
in  which  there  are  several  persons,  has  con- 
cealed in  his  vest  pocket  a  pistol  is  guilty  of 
a  violation  of  the  statute  of  Alabama  against 
carrying  concealed  weapons.  Owen  v.  State, 
31  Ala.  387.  But  in  Tennessee,  a  person 
who  being  armed  with  concealed  deadly 
weapons,  assails  another  in  a  public  meeting 
with  violent  and  opprobrious  language,  is 
,not  liable  to  indictment.  State  v.  Taylor,  3 
Sneed,  6G2. 

3.  Complaint.  In  Massachusetts,  a  com- 
plaint under  the  statute  (Gen.  Stats,  ch.  164, 
§  10),  prescribing  a  penalty  in  case  a  person 
had  in  his  possession  a  dangerous  weapon 
when  arrested  by  an  officer,  must  show  that 
the  defendant  was  lawfully  arrested  by 
the  oflScer.  Com.  v.  O'Connor,  7  Allen,  583 ; 
Com.  V.  Doherty,  103  Mass.  443. 

4.  Indictment.  An  indictment  for  un- 
lawfully exhibiting  a  pistol,  need  not  allege 
that  the  pistol  was  loaded.  Gamblin  v. 
State,  45  Miss.  058. 

5.  Evidence.  Under  an  indictment  al- 
leging that  the  defendant  carried  "  concealed 
deadly  weapons,  to  wit,  a  bowie  knife  and 
also  a  dagger,"  it  is  sufficient  to  prove  that 
he  carried  either.  Com.  v.  Howard,  3  Mete. 
Ky.  407.  "■ 

6.  A  person  having  in  his  drawer  a  pistol 
belonging  to  another,  and  being  asked  by  a 


minor  to  lend  it  to  him,  replied:  "  It  is  not 
mine,  but  belongs  to  another  m.an.  I  have 
nothing  to  do  with  it.  You  can  take  it  if 
you  choose.  It  was  left  hereby  Mr,  C,  who 
will  come  back  in  four  or  five  days,  and  it 
should  be  here  when  he  returns  and  calls 
for  it."  The  minor  then  took  the  pistol. 
Held  that  this  was  a  violation  of  the  statute 
of  Alabama  (Session  Acts  of  1855,  1856,  p. 
17),  making  it  a  misdemeanor,  "  to  sell, 
give,  or  lend"  deadly  weapons  to  a  minor. 
Coleman  v.  State,  32  Ala.  581. 

7.  Construction  and  constitutionality 
of  statutes.  For  meaning  of  the  word 
"  traveling,"  in  statute  of  Alabama  (R.  C. 
3555),  making  it  lawful  to  carry  about  the 
person  a  concealed  pistol,  see  Lockett  v. 
State,  47  Ala.  42;  s.  c.  1  Green's  Crim.  Reps. 
461.  As  to  the  constitutionality  of  the 
statute  of  Tennessee  of  June  11th,  1870, 
against  carrying  concealed  weapons,  see 
Andrews  v.  State,  3  Heisk.  165 ;  s.  c.  1 
Green's  Crhn.  Reps.  466. 


Couspiranj. 


1.  What  constitutes. 

2.  Indictment. 

3.  Trial. 

4.  Evidence. 

5.  Verdict  and  judgment. 

1.  What  constitutes. 

1.  Definition.  A  conspiracy  is  a  combina- 
tion of  two  or  more  persons,  by  concerted 
action,  to  accomplish  some  criminal  or  un- 
lawful purpose,  or  to  accomplish  some  pur- 
pose not  in  itself  criminal  or  unlawful,  by 
criminal  or  unlawful  means.  State  v.  May- 
berry,  48  Maine,  218;  Com.  v.  Hunt,  4 
Mete.  Ill ;  State  V.  Burnham,  15  New  Hamp, 
396;  State  v.  Bartlett,  30  Maine,  132;  State 
V.  Hewetts,  31  lb.  396. 

2.  Conspiracy,  at  common  law,  is  a  con- 
federacy of  two  or  more  persons  wrongfully 
to  prejudice  another  in  his  property,  person, 
or  character,  or  to  injure  public  trade,  or  to 
aftect  public  health,  or  to  violate  public 
policy,  to  obstruct  public  justice,  or  to   do 


102 


CONSPIRACY 


What  Constitutes. 


any  act  in  itself  illegal.     Johnson  v.  State, 
2  Dutch.  313,  per  Haines,  J. 

3.  Gist  of.  The  gist  of  conspiracy  is  the 
fraudulent  and  corrupt  combination.  There 
must  be  either  an  intent  that  injury  shall 
result  from  the  combination,  or  the  object 
must  be  to  benefit  the  conspirators  to  the 
injury  of  the  public,  or  the  oppression  of 
individuals.  Com.  v.  Kidgeway,  2  Ashm. 
247. 

4.  New  party.  Wlien  a  new  party,  with 
a  knowledge  of  the  facts,  agrees  to  the  plans 
of  the  conspirators,  and  comes  in  and  assists 
in  carrying  them  out,  he  is  from  that  moment 
a  fellow  conspirator,  although  the  parties 
were  not  previously  acquainted.  People  v. 
Mather,  4  Wend.  229. 

5.  Need  not  be  overt  act.  The  conspir- 
ing to  commit  an  indictal)le  oflFense  is  a 
crime.  Com.  v.  Putnam,  29  Penn.  St.  296 ; 
and  the  offense  is  in  general  complete,  when 
the  conspiracy  is  formed,  witliout  any  overt 
act.  State  V.  Rickey,  4  Halst.  293;  People 
V.  Mather,  supra  ;  Alderman  v.  People,  4 
Mich.  414;  State  v.  Ripley,  31  Maine,  386; 
Hazen  v.  Com.  23  Penn.  St.  355 ;  Isaacs 
V.  State,  48  Miss.  234.  But  in  New  Jersey, 
it  seems  that  to  constitute  the  offense,  under 
the  statute,  some  act  must  be  done  in  execu- 
tion of  the  design  agreed  upon,  to  complete 
the  oflFense.     State  v.  Norton,  3  Zabr.  33. 

6.  Design  must  be  calculated  to  injure. 
Although  there  may  have  been  an  intention 
to  defraud  some  one  of  his  property,  yet  if 
the  means  employed  could  not  possibly 
have  that  efi"ect,  the  oflFense  of  conspiracy 
is  not  complete.  March  v.  People,  7  Barb. 
391.  An  indictment  for  conspiracy  cannot 
be  maintained  against  several  persons  who 
combine  to  obtain  money  from  a  bank,  by 
drawing  their  checks  on  a  bank  in  which 
they  have  no  funds.  State  v.  Rickey,  4 
Halst.  293. 

7.  Where  the  indictment  charged  the 
defendants  with  having  conspired  to  injure 
the  character  of  R.  S.  by  obtaining  a  divorce 
on  the  ground  of  adultery,  and  tiiat  in  order 
to  carry  out  their  design,  they  falsely  re- 
presented that  the  divorce  was  sought  on 
other  and  different  grounds,  and  thereby 
induced  her  to  make  no  defense  to  the  action, 


it  was  held  that  as  there  was  no  crime  in- 
volved in  the  accusation,  the  defendants 
were  entitled  to  acquittal.  State  v.  Stevens, 
30  Iowa,  391. 

8.  In  general,  an  indictment  will  not  lie 
for  conspiring  to  commit  a  civil  trespass 
upon  property.  State  v.  Straw,  42  New 
Hamp.  393. 

9.  At  common  law.  A  conspiracy  to 
seduce  a  female  is  a  crime  at  common  law. 
Smitli  V.  People,  25  111.  17.  And  the  same 
is  true  of  a  confederacy  to  aid  a  female 
infant  to  escape  from  her  father's  control, 
with  a  view  to  marry  her  against  his  will. 
Mifiln  V.  Com.  5  Watts  &  Serg.  461.  A 
conspiracy  to  seduce  and  carry  oflF  a  female 
over  sixteen  years  of  age,  is  an  indictable 
offense  in  Virginia,  though  the  seduction 
and  abduction  be  not  so.  Anderson  t. 
Com.  5  Rand.  027. 

10.  A  conspiracy  to  defraud  a  bank,  and 
thereby  impair  the  securities  for  the  circula- 
tion held  by  the  public,  is  indictable  at 
common  law.  State  v.  Norton,  3  Zabr. 
33.  Where  an  indictment  charged  first, 
an  executed  conspiracy  falsely,  &c.,  by 
wrongful  and  indirect  means,  to  cheat  de- 
fraud, &c.,  the  Bank  of  the  United  States; 
and  secondly,  a  conspiracy  (as  before)  one 
of  the  defendants  being  president  of  the 
office  of  discount  of  the  bank,  and  another 
the  cashier  of  the  office,  and  another  a 
director  of  the  bank ;  it  was  held  tliat  it 
charged  in  each  count  a  conspiracy  at 
common  law.  State  v.  Buchanan,  5  Har.  & 
J.  317. 

11.  A  conspiracy  to  obtain  goods  by  false 
pretenses,  is  indictable  at  cammon  law. 
Johnson  v.  People,  22  111.  314.  Where 
goods  are  obtained  on  credit  by  a  person 
who  is  insolvent,  in  the  usual  course  of  his 
business,  without  disclosing  his  insolvency, 
and  without  any  reasonable  expectation  of 
being  able  to  pay  for  them,  it  is  not  neces- 
sarily such  an  unlawful  act  as  to  be  the 
subject  of  a  conspiracy ;  though  it  is  other- 
wise in  the  case  ©f  a  purchase  made  with 
no  expectation  whatever  of  payment.  Com. 
V.  Eastman,  1  Cush.  189. 

12.  It  is  a  conspiracy  at  common  law  for 
jounieymen  bootmakers  to  combine  to  com- 


CONSPIRACY. 


103 


What  Constitutes. 


'pel  by  force  of  numbers  and  discipline,  and 
by  fines  and  penalties,  other  jovirneymen  to 
join  their  society,  and  masters  to  employ 
none  but  members.  Com  v.  Hunt,  Thach. 
Crim.  Cas.  609.  Where  journeymen  shoe- 
makers combined,  and  fixed  the  price  of 
making  boots,  and  agreed  that  if  a  journey- 
man should  make  such  boots  for  any  less. 
he  should  pay  a  penalty  of  ten  dollars,  and 
if  any  master  shoemalier  employed  a  journey- 
man who  had  violated  their  rules,  that  they 
would  refuse  to  work  for  him,  and  would 
quit  his  employment,  and  carried  out  such 
agreement  by  leaving  the  employment  of  a 
master  workman,  in  whose  service  a  journey- 
man had  violated  their  rules,  and  thereby 
compelled  the  master  shoemaker  to  dis- 
charge such  journeyman  from  his  emjiloy,  it 
was  held,  that  the  parties  thus  conspiring, 
were  guilty  of  a  misdemeanor.  People  v. 
Fisher,  14  Wend.  9. 

13.  In  New  Jersey,  the  common-law  offense 
of  conspiracy  is  not  abolished  by  the  statute 
defining  conspiracy  in  certain  cases.  State 
V.  Norton,  3  Zabr.   33. 

14.  Acts  constituting.  Many  acts  which, 
if  committed  by  an  individual,  are  not 
criminal,  are  indictable  when  committed  in 
pursuance  of  a  conspiracy  between  two  or 
more  persons;  and  an  indictment  may  be 
sustained  whenever  there  is  a  conspiracy  to 
effect  a  lawful  purpose,  by  unlawful  means. 
State  V.  Rowley,  12  Conn  101,  A  conspiracy 
may  be  criminal,  although  the  object  be  to 
get  lawful  possession  of  land.  State  v. 
Shooter,  8  Rich.  72. 

15.  A  "  corner,"  whether  it  be  to  affect 
the  price  of  articles  of  commerce,  or  the 
price  of  stocks,  when  accomplished  by  con- 
federation to  raise  or  depress  prices,  and 
operate  on  the  markets,  is  a  conspiracy. 
Every  association  is  criminal,  the  object  of 
which  is  to  raise  or  depress  the  price  of 
labor  beyond  what  it  would  bring  if  left  to 
itself.  To  fix  a  standard  of  prices  among 
men  in  the  same  employment,  as  a  fee  bill, 
may  become  criminal  when  the  parties  resort 
to  coercion.     If  the  means  be  unlawful,  the 

-combination  is  indictal)le.  Morris  Run  Coal 
Co.  V.  Barclay  Coal  Co.  68  Penn.  St.  173; 
People  V.  Melvin,  2  Wheeler's  Crim.  Cas.  263. 


16.  Where  several  combined  to  compel 
their  employer  to  discharge  certain  of  their 
fellow-workmen  by  threatening  to  quit  hia 
employment  unless  he  did  so,  it  was  held 
that  they  were  liable  to  indictment  for  con- 
spiracy. State  V.  Donaldson,  3  Vroom  (33 
N.J.)  151. 

17.  Where  the  defendants  contriving  to 
procure  the  election  of  certain  persons  as 
directors  of  an  insurance  company,  and 
thereby  to  cause  themselves  to  be  employed 
in  the  service  of  the  company,  fraudulently 
conspired  to  induce  persons  to  appear  at  the 
annual  meeting  of  the  company  and  vote  for 
directors,  by  issuing  to  such  persons  fraudu- 
lent policies  ©f  insurance  which  were  to  be 
held  and  treated  to  be  nullities  for  every 
purpose  but  that  of  authorizing  the  holders 
to  vote,  it  was  held  that  the  means  were 
fraudulent,  immoral,  and  illegal.  State  v. 
Burnham,  15  New  Hamp.  396. 

18.  A  combination  to  injure  others  by 
perverting,  obstructing,  or  defeating  the 
course  of  public  justice,  by  suppression, 
or  fabrication  of  evidence,  is  indictable. 
State  V.  Dewitt,  3  Hill,  S.  C.  283. 

19.  The  officer,  the  prosecutor,  and  all 
other  persons  concerned,  may  be  indicted 
for  a  conspiracy  to  procure  criminal  process 
for  improper  purposes;  and  if  it  appear 
that  the  officer  who  executed  the  process 
was  engaged  in  the  conspiracy,  the  writ 
will  afford  him  no  protection.  Slomer  v. 
People,  25  111.  70. 

20.  The  charge  of  a  conspiracy  to  cheat  a 
municipal  corporation  imports  an  indictable 
offense.  State  v.  Young,  8  Vroom  (36  N. 
J.)  184. 

21.  In  New  Jersey,  the  erasure  of  an  in- 
dorsement on  a  promissory  note  with  intent 
to  defraud,  is  a  misdemeanor,  and  a  con- 
spiracy to  do  it,  indictable  under  the  statute. 
State  V.  Norton,  3  Zubr.  33. 

22.  To  conspire  "  to  injure  the  property  " 
of  an  individual  by  destroying  it,  or  lessen- 
ing its  value,  is  indictable  under  the  statute 
of  Maine.  State  v.  Ripley,  31  Maine  (1 
Red.)  386. 

23.  Where  A.,  who  owned  wood  worth 
two  hundred  dollars,  and  B.,  who  owned 
lumber  worth  one  hundred  dollars,  conspir- 


104 


CONSPIKACY. 


What  Constitutes. 


Indictment. 


ing  to  cheat  and  defraud  C.  and  D.,  agreed 
that  B.  should  applj'  to  C.  and  persuade  him 
to  purchase  in  his  own  name  for  B.  A.'s 
•wood  for  $1,500,  and  that  B.  should  then 
refuse  to  take  the  wood  of  C.  or  pay  him 
for  it,  that  A.  should  in  like  manner  apply 
to  D.  and  get  him  to  buy  in  his  own  name 
for  A.  B.'s  lumber  for  |1,200,  and  that  A. 
should  then  refuse  to  take  the  lumber  of  D., 
or  pay  him  for  it,  and  in'  pursuance  of  such 
conspiracy,  A.  and  B.  persuaded  C.  and  D. 
to  make  such  purchases,  A.  and  B.,  pretend- 
ing that  they  wanted  to  be  owners  of  such 
wood  and  lumber,  and  promising  to  take 
the  same  of  C.  and  D.  and  pay  them  the 
prices  which  they  were  to  pay,  and  C.  and 
D.  gave  to  A.  and  B.  their  promissory  notes 
for  the  purchase  money,  and  A.,  and  B.  then 
declined  to  take  the  wood  and  lumber  of  C. 
and  D.  or  to  indemnify  them,  and  by  means 
of  such  combination  and  false  pretenses,  A. 
and  B.  got  possession  of  such  notes  from  C. 
and  D.,  it  was  held  that  these  acts  con- 
stituted an  oflfense  within  the  statute  of  Con- 
necticut (of  1835.  Lit.  21,  §  114).  State  v. 
Kowley,  13  Conn.  101. 

24.  All  equally  liable.  Where  several 
conspire  to  do  an  unlawful  act,  all  are  liable 
for  the  acts  cf  each  if  done  in  the  prosecu- 
tion of  their  common  purpose.  State  v. 
Wilson,  30  Conn.  500 ;  Tompkins  v.  State, 
17  Ga.  356;  Eeid  v.  State,  20  lb.  681;  State 
V.  Nash,  7  Iowa,  347 ;  State  v.  Shelledy,  8 
lb.  477;  State  v.  Myers,  19  lb.  517;  Green 
v.  State,  13  Mo.  382.  Therefore,  where  on 
a  trial  for  murder  the  evidence  tended  to 
show  that  the  homicide  was  committed  by 
some  person  with  whom  the  prisoner  acted 
in  concert,  it  was  held  not  to  be  erroneous 
for  the  court  to  refuse  to  charge  that  there 
was  no  evidence  in  the  case  that  would 
authorize  a  conviction.  Carrington  v.  Peo- 
ple, 6  Parker,  336. 

25.  On  the  trial  of  an  indictment  for  rob- 
bery, it  appeared  that  the  prisoner,  being 
confined  in  jail,  got  out  of  his  cell,  broke 
the  locks  off  of  the  doors  of  the  others,  who, 
as  soon  as  the  jailer  made  his  appearance, 
set  upon,  bound,  blindfolded  and  robbed 
him.  Held  thut  all  were  equally  guilty, 
although   it   was   not    proved    alBrmatively 


that  the  prisoner  personally  took  part  in 
the  robbery.  Ferguson  v.  State,  32  Ga. 
658. 

26.  Act  must  have  relation  to  common 
object.  If  the  act  have  no  connection  with 
the  common  object,  the  party  committing  it 
is  alone  responsible  for  its  consequences. 
Where,  therefore,  A.  and  B.,by  prearrange- 
ment,  attack  C.  and  kill  him,  and  D.,  not 
being  privy  to  their  common  design,  joins 
in  the  fight,  D.  is  not  guilty  of  murder.  lu 
such  cases,  the  character  of  the  act  is  to  be 
determined  by  the  juiy,  and  a  charge  which 
excludes  it  from  their  consideration  is  er- 
roneous.    Frank  v.  State,  27  Ala.  37. 

27.  When  merged  in  the  offense.  A 
conspiracy  to  commit  a  felony-,  when  exe- 
cuted, is  merged  in  the  felony.  Com.  v. 
Blackburn,  1  Duvall,  4;  but  not  a  con- 
spiracy to  commit  a  misdemeanor.  People 
V.  Richards,  1  Mann.  Micii.  216;  State  v. 
Murray,  3  Shep.  100 ;  People  v.  Mather,  4 
Wend.  229.  But  see  Com.  v.  Kingsbury,  5 
Mass.  106;  Com.  v.  O'Brien,  12  Cush.  84; 
Lambert  v.  People,  9  Cow.  577;  State  v. 
Murphy,  4  Ala.  765. 

28.  When  there  is  a  conspiracy  to  commit 
a  higher  offense,  and  the  offense  is  actually 
committed,  the  conspiracy  is  merged;  but 
not  when  both  are  of  the  same  grade,  as  a 
conspiracy  to  cheat,  and  actual  cheating 
by  false  pretenses.  State  v.  Mayberry,  48 
Maine,  218. 

29.  Conspiracy  to  hinder  an  officer  in  the 
discharge  of  his  duty  is  not  merged  in  the 
offense  of  impeding  the  officer.  State  v. 
Noyes,  25  Vt.  415. 

2.  Indictjient. 

30.  Parties.  An  indictment  charging 
that  the  defendant  conspired  with  divers 
persons  to  the  jurors  unknown  is  good, 
although  the  conspu'ators  were  known  to 
the  jury  and  their  names  might  have  been 
given.     People  v.  Mather,  4  Wend.  229. 

31.  Description  of  offense.  An  indict- 
ment for  a  conspiracy  to  commit  an  ofl'ense 
for  which  there  is  no  name  at  common  law, 
must  describe  the  offense  with  as  much  pre- 
cision as  though  the  indictment  was  laid  for 


CONSPIRACY 


105 


Indictment. 


the  offense  instead  of  the  conspiracy.     Hart- 
man  V.  Com.  5  Barr,  60. 

32.  An  indictment  for  conspiracy  is  suffi- 
cient which  avers  that  the  accused  with 
another  person  conspired  unlawfully  and 
maliciously  to  procure  L.  to  be  arrested  for 
the  offense  of  larceny,  well  knowing  he  was 
not  guilty  of  said  offense.  Elkin  v.  People, 
28  N.  Y.  177. 

33.  When  it  is  alleged  that  the  defend- 
ants conspired  falsely  to  charge  another 
with  crime,  it  is  not  necessary  to  aver  the 
innocence  of  the  prosecutor,  or  in  terms  that 
he  was  falsely  charged.  Johnson  v.  State,  2 
Dutch.  313;  nor  that  the  defendants  pro- 
cured or  intended  to  procure  an  indictment 
or  other  legal  process.  Com.  v.  Tibbetts,  2 
Mass.  536. 

34.  Averment  of  means  employed.  An 
indictment  for  conspiracy  must  allege  that 
the  defendants  conspired  to  do  an  illegal 
act  by  illegal  means.  State  v.  Harris,  38 
Iowa,  242.  When  the  conspiracy  was  to 
effect  a  criminal  or  unlawful  purpose,  the 
indictment  must  state  the  purpose  fully  and 
clearly ;  and  if  the  purpose  be  not  in  itself 
unlawful,  the  criminal  or  unlawful  means  to 
be  used  must  be  stated.  Com.  v.  Hunt,  4 
Mete.  111. 

35.  In  an  indictment  for  conspiracy  at 
common  law,  to  do  an  act  which  if  com- 
mitted would  be  a  well  known  offense,  no 
further  description  than  the  name  of  the 
crime  is  necessary,  and  the  means  by  which 
it  was  to  be  accomplished  need  not  be 
stated.  People  v.  Mather,  4  Wend.  229; 
State  V.  llipley,  31  Maine,  386;  Com.  v. 
Eastman,  1  Cush.  189;  People  v.  Richards, 
1  Mann.  Mich,  216;  Hazen  v.  Com.  23  Penn. 
St.  3o5 ;  State  v.  Straw,  42  New  Hamp.  303. 
But  if  it  is  charged  that  the  defendants  con- 
spired for  a  purpose  not  necessarily  criminid, 
and  where  the  offense  must  therefore  consist 
in  the  means  designed  to  be  used,  the  means 
must  be  distinctly  set  out  in  the  indictment. 
State  V.  Rol)erts,  34  Maine,  320;  State  v. 
Hewitt,  31  II).  396 ;  State  v.  Bartlett,  30  lb. 
132;  State  v.  Buniham,  15  New  Hamp.  396; 

'  State  V.  Noyes,  25  Vt.  415;  State  v.  Norton, 
3  Zabr.  33. 

36.  An  indictment  for   conspiracy  which 


alleges  that  the  defendant  conspired  "  to 
cheat  and  defraud,"  is  not  sufficient,  that 
not  being  an  offense  at  common  law.  It 
must  be  shown  that  the  combination  was  to 
cheat  and  defraud  in  some  of  the  modes 
made  criminal  by  statute.  Alderman  v. 
People,  4  Mich.  414;  People  v.  Eckford,  7 
Cow.  103;  Lambert  v.  People,  9  lb.  577; 
March  v.  People,  7  Barb.  391;  Com.  v. 
Shedd,  7  Cush.  514 ;  State  v.  Jones,  13  Iowa, 
269;  State  v.  Potter,  28  lb.  554;  State  v. 
Stevens,  30  lb.  391;  State  v.  Parker,  43 
New  Hamp.  83. 

37.  Where  an  indictment  charges  a  con- 
spiracy to  cheat,  the  conspiracy  is  the  gist 
of  the  offense,  and  the  cheating  but  aggra- 
vation. Com.  V.  Davis,  9  Mass.  415.  But 
the  means  proposed  to  be  used  must  be 
stated  in  such  detail  as  to  show  a  conspiracy 
to  effect  the  intended  purpose.  Com.  v. 
Wallace,  16  Gray,  221;  contra,  People  v. 
Scholtz,  2  Wheeler's  Crim.  Cas.  617 ;  State 
V.  Young,  8  Vroom  (36  N.  J.)  184.  The 
indictment  should  set  out  an  offense  com- 
plete in  itself,  without  the  aid  of  any  aver- 
ment of  illegal  acts  done  in  pursuance  of 
the  agreement.  An  illegal  combination,  im- 
perfectly and  insufficiently  charged,  will 
not  be  aided  by  averments  of  overt  acts 
done  in  pursuance  of  it.  Where  the  indict- 
ment stated  the  object  or  purpose  of  the 
conspiracy  to  be  the  obtaining  and  acquir- 
ing, by  the  defendants,  from  certain  persons 
named,  large  quantities  of  goods  belonging 
to  such  persons,  "by  divers  false  pretenses 
and  subtle  means  and  devices  to  cheat  and 
defraud  them  thereof,"  and  "then  to  ab- 
scond out  of  the  State  with  said  property," 
it  was  held  insufficient  on  demurrer.  State 
V.  Keach,  40  Vt.  113. 

38.  A  conspiracy  to  defraud,  under  the 
statute  of  Michigan,  need  not  have  been  by 
means  of  a  token,  writii  g  or  similar  device; 
and  it  may  be  by  acts  without  spoken 
words.  An  information  was  held  sufficient 
which  charged  the  defendant  with  having 
conspired  with  a  person  unknown,  "  by 
divers  false  pretenses,  subtle  means  and 
devices  to  obtain  and  acquire  to  themselves, 
of  and  from  J.  W.,  a  sum  of  money,  to  wit, 
the  sum  of  ten  dollars  of  the  moneys  of  said 


lOG 


CONSPIRACY 


Indictment. 


J.  W.,  and  to  cheat  and  defraud  him,  the 
said  J.  W.,  thereof."  People  v.  Clark,  10 
Mich.  310. 

39.  An  indictment  charged  that  the  de- 
fendants conspired  to  cheat  and  defraud  P., 
and  that  to  accomplish  that  object  they 
made  certain  representations  which  were  set 
out,  and  averred  that  those  representations 
were  false  and  fraudulent,  and  well  known 
by  the  defendants  so  to  be,  and  that 
they  were  made  for  the  purpose  of  cheating 
and  defrauding  P.  Held  that  it  charged  a 
conspiracy.  State  v.  Mayberry,  48  Maine, 
218. 

40.  An  indictment  is  sutRcieut  which 
charges  a  conspiracy  to  cheat  and  defraud 
the  complainant  of  his  money,  by  the  fraud- 
ulent sale  to  him,  of  property,  for  a  much 
larger  sum  than  it  was  worth,  and  that  the 
defendants,  in  pursuance  of  such  conspiracy, 
falsely  and  fraudulently  made  to  him  cer- 
tain representations  known  to  them  to  be 
false,  and  thereby  cheated  and  defrauded 
him.     State  v.  Parker,  43  New  Hamp.  83. 

41.  Where  an  indictment  charged  a  con- 
spiracy to  defraud  by  means  of  false  pre- 
tenses, and  false,  unlawful  and  unauthorized 
writings,  in  the  form  and  similitude  of  bank 
notes,  that  were  worthless,  but  which  pur- 
ported to  be  promissory  notes,  and  to  have 
been  signed,  &c.,  and  stated  that  the  overt 
act  consisted  in  passing  a  note  purporting 
to  be  a  bank  note,  and  to  have  been  signed, 
&c.,  it  was  held  sufficient.  Collins  v.  Com. 
3  Serg.  &  Rawle,  220. 

42.  An  indictment  charged  that  the  de- 
fendant intending  unlawfully,  by  indirect 
means,  to  cheat  and  defraud  a  certain  incor- 
porate company  and  divers  other  persons 
unknown,  of  their  effects,  fraudulently  and 
unlawfully  conspired,  injuriously  and  un- 
justly, by  wrongful  and  indirect  means,  to 
cheat  and  defraud  the  company  and  un- 
known persons,  of  their  effects ;  and  in  pur- 
suance thereof,  did,  by  undue,  indirect  and 
unlawful  means,  unlawfully  cheat  and  de- 
fraud the  company  and  unknown  persons  of 
divers  effects.  Held  (the  court  being  equally 
divided)  insufficient.  Lambert  v.  People, 
9  Cow.  578. 

43.  Where  an  indictment  for  consj^iracy 


to  defraud  creditors  charged  that  goods  of 
unknown  quality  and  quantity  were  removed 
and  secreted  by  the  prisoner,  it  was  held 
that  the  indictment  was  insufficient  in  not 
stating  the  circumstances  of  removal  and 
secretion,  and  in  not  giving  the  names  of 
the  persons  intended  to  be  defrauded. 
Hartman  v.  Com.  5  Barr,  60. 

44.  An  indictment  alleging  a  conspiracy 
by  the  defendants  to  j^rocure  an  overiusur- 
ance  on  their  stock  in  trade,  does  not  charge 
a  criminal  offense.  And  where  the  false 
pretenses  by  which  money  was  to  be  ob- 
tained from  the  insurance  companies  wei-e 
not  set  out,  it  was  held  that  the  charge  of 
a  conspiracy  "  to  obtain  money  by  means  of 
false  pretenses  of  a  loss  thereafterward  to 
happen,"  was  too  general.  Com.  v.  Prius,  9 
Gray,  127. 

45.  An  indictment  is  good  which  charges 
a  conspiracy  falsely  and  fraudulently  to 
seduce  an  unmarried  female,  by  procuring 
the  consent  of  herself  and  parents  to  her 
marriage  with  one  of  the  conspirators,  and 
in  pursuance  of  such  conspiracy  producing 
a  forged  license,  assuring  them  of  its  genu- 
ineness, falsely  and  fraudulently  represent- 
ing another  of  the  conspirators  to  be  author- 
ized to  perform  the  marriage  ceremony,  and 
who  did  so,  in  consequence  of  all  which  the 
daughter  and  her  father  and  mother  were 
deceived,  and  she  cohal)ited  with  her  pre- 
tended husband.  State  v.  Muqjhy,  4  Ala. 
765. 

46.  An  indictment  for  a  consjiiracy  to  de- 
stroy a  warrant  and  recognizance  for  the 
appearance  of  the  defendant  to  answer  a 
criminal  charge,  with  intent  thereby  to  im- 
pede the  due  administration  of  justice,  must 
aver  that  the  warrant  issued  and  the  recog- 
nizance was  acknowledged,  and  also  set 
forth  the  warrant  and  recognizance.  State 
V.  Enloe,  4  Dev.  &  Batt.  373. 

47.  An  indictment  for  conspiracy  to  de. 
feat  the  enforcement  of  the  prohibitory 
liquor  law,  with  money  and  other  unlawful 
means,  must  allege  in  what  manner  the 
money  was  designed  to  be  employed,  and 
specify  particularly  the  "other  unlawful 
means."  State  v.  Potter,  28  Iowa,  554.  See 
State  V.  Stevens.  lb.  391. 


CONSPIRACY. 


107 


Indictment. 


Trial. 


Evidence. 


48.  An  indictment  for  conspiracy,  which 
does  not  set  out  facts  snfBcient  to  constitute 
the  offense,  cannot  be  made  good  by  quali- 
fying epithets.  Where,  therefore,  the  in- 
dictment alleged  that  the  defendants,  being 
journeymen  bootmakers,  unlawfully  confed- 
erated and  formed  themselves  into  a  club, 
and  agreed  together  not  to  work  for  any 
master  bootmaker  or  other  persons  who 
should  employ  any  journeyman  or  other 
workman  who  should  not  be  a  member  of 
said,  club,  after  notice  given  to  such  master 
or  other  person  to  discharge  such  workman, 
it  was  held  defective  in  not  charging  any 
unlawful  design  or  means.  Coni.  v.  Hunt, 
4  Mete.  111. 

49.  The  same  is  true  of  an  indictment 
which  alleged  that  the  defendants,  being 
journeymen  bootmakers,  unlawfully  con- 
spired, confederated  and  agreed  together 
not  to  work  for  one  who  should  employ  any 
workman  not  being  a  member  of  a  certain 
club,  or  who  should  break  any  of  their  by- 

'  laws,  unless  such  person  should  pay  to  said 
club  such  sums  as  should  be  agreed  upon  as 
a  penalty  for  the  breach  of  such  by  laws, 
and  by  means  of  said  conspiracy  did  compel 
B.,  a  master  cordwainer,  to  dismiss  from  his 
employ  D.,  a  journeyman  bootmaker,  be- 
cause D.  would  not  pay  the  said  club  tlie 
penalty.     lb. 

50.  The  same  is  true  of  an  indictment 
which  alleged  that  the  defendants,  intend- 
ing unlawfully  and  by  indirect  means  to 
impoverish  A.,  a  journeyman  bootmaker, 
and  prevent  his  following  his  trade,  con- 
spired, by  wrongful  and  indirect  means,  to 
impoverish  him,  and  to  deprive  and  prevent 
him  from  following  his  trade,  and  from 
getting  his  livelihood,  and  in  pursuance  of 
said  conspiracy  did  unlawfully,  &c.,  i)revent 
him  from  following  his  trade,  and  did 
greatly  impoverish  him.    Il>. 

51.  The  same  was  held  of  an  indictment 
which  alleged  that  the  defendants,  intend- 
ing to  injure  B.  and  divers  others,  all  being 
nrustor  bootmakers,  employing  journeymen, 
unlawfully  conspired  and  agreed  by  indirect 
means  to  jirejudice  and  impoverish  B.  and 
divers  others,  all  of  whom  were  master  cord- 
wainers,  and  employing  journeymen,  and  to 


prevent  them  from  employing  any  journey- 
men who  should  not,  after  notice,  become 
members  of  a  certain  club,  or  who  should 
break  or  violate  any  of  the  by-laws  of  said 
club,  or  refuse  or  neglect  to  pay  any  sum  of 
money  demanded  from  them  by  said  club  as 
a  penalty  for  such  breach  of  said  by-laws. 
lb. 

52.  Matters  of  inducement  need  not 
be  set  out  with  the  particularity  which  is 
requisite  in  reference  to  material  allegations. 
It  is  sufficient  to  allege  in  the  indictment 
that  .  the  defendants  unlawfully  conspired, 
combined,  confederated,  and  agreed  to- 
gether to  cheat  and  defraud  one  P.,  "by 
then  and  there  inducing  and  procuring  said 
P.  to  surrender "  certain  notes.  State  v. 
Mayberry,  48  Maine,  218. 

53.  An  indictment  which  alleges  that  the 
defendants  feloniously  conspired  to  rob  and 
steal,  is  not  bad  for  duplicity.  State  v. 
Sterling,  34  Iowa,  443;  s.  c.  1  Green's  Crim.. 
Reps.  569. 

3.  Tki-'O.. 

54.  Place.  The  conspiracy  may  be  tried 
in  the  county  where  the  overt  act  was  com- 
mitted. Com.  V.  Gillespie,  7  Serg.  &  Rawle, 
478.  If  the  agreement  be  made  in  one 
county  and  the  conspirators  go  into  another 
county  to  carry  out  their  plans,  and  there 
commit  an  overt  act,  they  may  be  punished 
in  the  latter  county,  without  any  proof  of 
an  express  renewal  of  the  agreement.  People 
v.  Mather,  4  Wend.  229. 

55.  Mode.  A  conspiracy  being  a  joint 
offense,  the  court  cannot  grant  a  separate 
trial.  Com.  v.  Mason,  2  Ashm.  31;  contra, 
State  V.  Buchanan,  5  Har.  &  J.  500.  Where 
three  were  indicted  for  conspiracy,  and  one 
of  them  died  before  trial,  and  another  was 
acquitted,  it  was  held  that  the  survivor 
might  be  tried  and  convicted.  People  v. 
Olcott,  2  Johns.  Cas.  301.  But  where  two 
only  were  charged  with  a  conspiracy,  the 
acquittal  of  one  was  held  to  be  an  acquittal 
of  both.     State  v.  Tom,  2  Dcv.  569. 

4.  PjVidrnck. 

56.  Must  sustain  charge.  A  variance  in 
the  name  of  the  county  in  an  indictment  for 


108 


CONSPIRACY 


Evidence. 


a  conspiracy  against  the  United  States  is  not 
material  when  the  act  cliarged  and  proved  is 
witliin  the  Jurisdiction  of  the  court.  U.  S. 
V.  Smith,  2  Bond,  323. 

57.  To  sustain  an  indictment  against  an 
attorney  and  client  for  entering  into  a  con- 
spiracy to  resist  an  officer  in  the  discharge 
of  his  duty,  it  is  not  necessary  to  prove 
actual  violence.  It  is  sufficient  to  show 
threats  and  acts  in  their  nature  calculated  to 
terrify  a  prudent  and  reasonable  officer, 
although  he  was  not  thereby  prevented  from 
executing  his  process.  U.  S.  v.  Smith,  1 
Dillon,  C.  C.  212. 

58.  An  indictment  alleging  a  conspiracy 
to  cheat  and  defraud  citizens  at  large,  or 
particular  persons,  out  of  their  land  entries, 
is  not  sustained  by  evidence  that  the  de- 
fendants conspired  "  to  make  entries  in  the 
land  office  before  it  was  opened,  or  before  it 
was  declared  to  be  opened,  or  after  it  was 
opened,  for  the  purpose  of  appropriating 
the  lands  to  their  own  use,  and  excluding 
others."     State  v.  Trammell,  2  Ired.  379. 

59.  An  indictment  for  a  conspiracy  to 
■defraud  B.  is  not  supported  by  evidence  that 
the  defendants  conspired  to  defraud  the 
public  generally,  or  any,  individually,  whom 
they  might  meet  and  be  able  to  defraud- 
Com.  V.  Harley,  7  Mete.  506. 

60.  "Where  an  indictment  alleged  that  A., 
B.  and  C.  conspired  to  accuse  D.  of  a 
telonious  assault  upon  a  female  with  intent 
to  ravish  and  carnally  know  her,  and  it  was 
jn'oved  that  the  defendants  conspired  to 
accuse  D.  of  having  seduced  and  committed 
adultery  with  such  female,  it  was  held  that 
the  variance  was  fatal.  State  v.  Hadley,  54 
New  Hamp.  224. 

61.  Overt  acts.  On  the  trial  of  an  in- 
dictment for  conspiracy,  acts  may  be  given 
in  evidence  to  show  the  combination,  but 
for  any  other  purpose  they  need  not  be 
charged  or  proved.  State  v.  Eipley,  31 
Maine,  38G.  Evidence  of  an  overt  act  by 
one,  in  pursuance  of  a  conspiracy,  is  suffi- 
cient to  convict  all.  Collins  v.  Com.  3  Serg. 
&  Rawle,  220. 

62.  On  the  trial  of  an  indictment  for  a 
conspiracy  in  inveigling  a  young  girl  from 
her  mother's  house  and  reciting  the  marriage 


ceremony  between  her  and  one  of  the  de- 
fendants, a  subsequent  forcible  carrying  her 
off,  and  threats  after  she  had  been  released 
on  a  habeas  cmyus,  were  held  admissible  in 
evidence.     Resp.  v.  Hevice,  2  Yeates,  114. 

63.  Consummation  of  design.  If  con- 
spirators carry  out,  or  attempt  to  carry  out 
the  object  of  the  conspiracy,  that  fact  may 
be  alleged  in  aggravation,  and  given  in  evi- 
dence to  prove  the  conspiracy.  State  v. 
May  berry,  48  Maine,  218. 

64.  Proof  of  other  acts.  Evidence  is  ad- 
missible of  other  acts  on  the  part  of  the 
defendants,  of  collusion  with  other  persons 
to  show  the  quo  animo  of  the  defendants  in 
relation  to  the  offense  charged.  People  v. 
Bleeker,  2  Wheeler's  Grim.  Cas.  256.  But  in 
an  indictment  for  a  conspiracy  to  prosecute 
an  innocent  person,  evidence  is  not  admis- 
sible to  show  that  the  defendants  prosecuted 
other  persons  who  Avere  guilty.  State  v. 
Walker,  32  Maine,  195. 

65.  Acts  and  declarations  of  confed- 
erate. After  the  fact  of  a  conspiracy  has 
been  found  by  the  court,  the  acts  and  dec- 
larations of  a  party's  confederates,  done  and 
said  in  pursuance  of  the  common  purpose, 
are  proper  for  the  consideration  of  the  jury. 
Com.  V.  Brown,  14  Gray,  419;  although  not 
done  or  said  in  his  presence,  or  aftenvard 
reported  to  him.  Sands  v.  Com.  21  Gratt. 
87;  Johnson  v.  State,  29  Ala.  62;  State  v. 
Simmons,  4  Strobh.  266. 

66.  To  make  the  acts  and  declarations  of 
an  alleged  confederate  competent  evidence 
against  tiie  accused,  it  must  be  proved 
prima  facie,  or  such  evidence  given  as  to 
make  the  question  one  proper  for  the  deter- 
mination of  the  jury,  that  the  accused  had 
conspired  with  the  confederate  to  commit 
the  offense.  Ormsby  v.  People,  53  K  Y. 
472.  But  the  rule  requiring  ^jri»;a  facie 
proof  of  a  conspiracy  to  be  iirstmade,  before 
the  acts  and  declarations  of  one  of  the  con- 
spirators are  admissible  in  evidence  against 
the  others,  is  not  inflexible.  Such  acts  and 
declarations  are  sometimes  admitted  for  the 
sake  -of  convenience  before  sufficient  proof  is 
given  of  the  conspiracy;  but  it  is  only  al- 
lowed under  particular  and  urgent  circum- 
stances.    State  V.  Ross,  29  Mo.  32 ;  State  v. 


CONSPIRACY. 


109 


Evidence. 


Verdict  and  Judgment. 


Daubert,  42  lb.  239 ;  People  v.  Brothcrton, 
47  Cal.  388;  s.  c.  3  Green's  Grim.  Eeps.444. 

67.  Where  several  are  acting  with  a  com- 
mon purpose  and  design,  although  there 
may  have  been  no  previous  combination  or 
confederacy  to  commit  the  particular  of- 
fense, yet  the  acts  and  declarations  of  each, 
from  the  commencement  to  the  consumma- 
tion of  the  offense,  are  evidence  against  the 
others.     Kelley  v.  People,  55  N.  Y.  565. 

68.  Where  several  persons  conspired  in 
the  city  of  New  York,  to  commit  a  larceny 
in  Connecticut,  and  to  carry  the  stolen  prop- 
erty back  to  New  York,  and  there  divide  it, 
it  was  held  that  the  acts  and  declarations  of 
such  of  them  as  went  to  Connecticut,  after 
they  had  stolen  the  property,  and  were  hid- 
ing and  trying  to  remove  it  out  of  the  State, 
were  admissible  against  all.  State  v.  Grady, 
34  Conn.  118. 

69.  Where  a  witness  swore  that  the  pris- 
oner, in  the  presence  of  the  witness  and  A., 
said  that  B.  had  offered  the  prisoner  money 
if  he  would  kill  W.,  that  the  prisoner  told 
B.  he  would  give  him  an  answer  another  day ; 
that  the  prisoner  offered  the  witness  a  part 
of  the  money  if  he  would  kill  W.,  that  A. 
proposed  a  mode  of  doing  it,  that  the  wit- 
ness declined,  and  the  prisoner  said  he  was 
joking,  and  the  murder  was  committed 
a  few  days  afterward,  it  was  held  that 
there  was  sufficient  proof  of  the  conspiracy 
of  the  prisoner  and  A.  to  make  the  declara- 
tions of  A.  admissible  against  the  prisoner. 
Com.  V.  Crowinshield,  10  Pick.  497. 

70.  On  a  trial  for  grand  larceny,  it  ap- 
peared that  the  accused  went  to  a  store,  in 
company  with  two  other  women,  and  looked 
at  clieap  woolen  shawls,  while  the  other  two 
examined  valuable  India  shawls;  tliat  one 
of  the  latter  took  a  shawl,  concealed  it,  and 
the  two  immediately  left ;  that  they  were 
followed  out  of  the  store  and  stopped,  and 
one  of  them — not  the  one  who  took  the 
shawl — went  hurriedly  back  into  the  store, 
and  whispered  to  the  accused;  and  that  the 
accused  was  then  asked  if  she  knew  the 
other  two,  and  she  said  she  did,  that  she 
came  into  the  store  with  them.  Held^  that 
the  foregoing  was  not  prima  facie  evidence 
of  a  conspiracy  between  the  three,  and  that 


the  acts  and  declarations  of  the  two  women, 
after  they  left  the  store,  were  not  admissible. 
Held,  further,  that  it  was  error  in  the  judge 
to  refuse  to  charge,  as  requested,  that  the 
failure  of  the  prisoner  to  introduce  pi'oof 
was  not  to  be  considered  by  the  jury,  it  not 
appearing  that  the  accused  had  it  in  her 
power  to  produce  evidence  controverting  or 
explaining  the  testimony  produced  against 
her.     Ormsby  v.  People,  53  N.  Y.  473. 

71.  Where  the  declarations  of  a  co-conspi- 
rator are  merely  a  narrative  of  a  past  occur- 
rence, they  cannot  be  received  as  evidence  of 
such  occurrence.  To  be  admissible,  they  must 
be  concomitant  with  the  principal  act,  and 
connected  with  it,  so  as  to  constitute  a  part  of 
the  res  gestae.  Patton  v.  State,  6  Ohio,  N.  S. 
476;  State  v.  Dean,  13  Ired.  63;  State  v. 
Thibeau,  30  Vt.  100;  People  v.  Davis,  56 
N.  Y.  95.  And  the  declaration  of  one  of  the 
conspirators,  as  to  what  he  himself  intended 
to  do,  not  in  furtherance  of  the  common  de- 
sign, is  not  admissible  against  the  others. 
Fouts  V.  State,  7  Ohio,  N.  S.  471. 

72.  On  a  trial  for  conspiracy,  the  exami- 
nation of  one  of  the  defendants  taken  sep- 
arate and  apart  from  the  others,  is  not  ad- 
missible in  evidence  to  prove  the  charge  laid 
in  the  indictment.  People  v.  Bleeker,  2 
Wheeler's  Crim.  Cas.  356. 

73.  Circumstances.  A  conspiracy  may 
be  proved  by  circumstantial  evidence;  and 
parties  performing  disconnected  overt  acts, 
all  contributing  to  the  same  result,  may  be 
shown  to  be  conspirators  and  confederates. 
Kelly  V.  People,  55  N.  Y.  585;  State  v. 
Sterling,  34  Iowa,  443 ;  s.  c.  1  Green's  Crim. 
Reps.  569. 

74.  But  on  a  trial  for  conspiracy  among 
journeymen  bootmakers,  evidence  is  not  ad- 
missible as  to  the  price  of  fiour  at  the  for- 
mation of  the  society,  to  show  that  the  ob- 
ject of  the  defendants,  in  forming  their  so- 
ciety, was  to  raise  the  price  of  wages  pro- 
portionally to  the  price  of  flour  and  other 
necessaries.  Com.  v.  Hunt,  Thach.  Crim. 
Cas.  009. 

5.  Verdict  and  .judgment. 

75.  Form.  Under  an  indictment  against 
two  for  a  conspiracy  to  cheat,  the  judgment 


110 


CONSPIRACY.— CONTEMPT. 


Verdict  and  Judgment. 


Power  of  Courts  to  Punish. 


should  be  against  each  severally,  and  not 
against  them  jointly.  March  v.  People,  7 
Barb.  301. 

76.  Variant  from  charge.  Where  A. 
and  B.  were  indicted  for  a  conspiracy  to  de- 
fraud C,  and  the  jury  found  that  there  was 
an  agreement  between  A.  and  B.  to  obtain 
money  from  C,  but  with  an  intention  to  re- 
turn it  to  hiai,  it  was  held  not  to  be  a  ver- 
dict upon  which  any  judgment  could  be 
given.     People  v.  Olcott,  2  Johns.  Cas.  301. 


Contcinpt. 


1.  Power    of    courts    to   punish.      The 

power  to  punish  for  contempt  is  inherent  in 
all  courts.  The  moment  the  courts  of  the 
United  States  were  called  into  existence,  and 
invested  with  jurisdiction  over  any  subject, 
they  became  possessed  of  this  power.  But 
the  power  is  limited  and  defined  by  act  of 
Congress  of  March  2d,  1831  (4  Stats,  at 
Large,  487).  Ex  parte  Robinson,  19  Wall. 
505  ;  s.  c.  2  Green's  Crim.  Reps.  135. 

2.  The  17th  section  of  the  judiciary  act  of 
1789  declares  that  the  courts  of  the  United 
States  shall  have  power  to  punish  contempts 
of  their  authority  in  any  cause  or  hearing  be- 
fore them,  by  fine  or  imprisonment,  in  their 
discretion.  The  enactment  is  a  limitation 
upon  the  manner  in  which  the  power  shall 
be  exercised,  and  must  be  held  to  be  a  nega- 
tion of  all  other  modes  of  punishment.     lb. 

3.  Courts  have  power  at  common  law  to 
punish,  as  for  contempt,  libelous  publica- 
tions relative  to  their  proceedings,  tending 
to  impair  public  confidence  and  respect  in 
them.     State  v.  Morrill,  16  Ark.  384. 

4.  What  constitutes.  The  employment 
of  abusive  and  impertinent  language  toward 
the  court  in  a  petition  signed  by  the  party, 
and  tiled  with  the  clerk,  is  a  ground  for  an 
attachment  to  show  cause  for  contempt. 
State  V.  Keene,  6  La.  375 ;  State  v.  Red- 
mond, 9  lb.  319. 

5.  Where,  after  the  judges  had  vacated 
the  bench  for  a  recess,  the  defendant  ap- 
proached the  chief  justice  and  used  toward 
him  abusive  and  vituperative  language,  and, 
at  the  same  time  made  a  violent  assault  upon 


his  person,  it  was  held  a  contempt  of  court 
for  which  the  defendant  was  liable  to  fine 
and  imprisonment.  State  v.  Garland,  25 
La.  An.  532. 

6.  Proposing  to  a  juror  to  signal  from  the 
window  of  the  jury-room  how  the  jury  stand 
with  regard  to  their  verdict  constitutes  a 
contempt  of  court.  State  v.  Doty,  3  Vroom 
(32  N.  J.)  403. 

7.  A  defendant  who  participates  in  a 
rescue,  and  escapes  from  the  custody  of  the 
sheriff  is  guilty  of  contempt  of  court,  and 
may  be  indicted  therefor.  The  sheriifs  re- 
turn is  conclusive  evidence  of  the  escape. 
State  V.  Bergen,  1  Dutch.  209. 

8.  An  attorney  who  writes  and  publishes 
a  stricture  on  the  opinion  of  the  court  in 
order  to  prejudice  a  cause  which  is  pending 
in  such  court,  is  guilty  of  contempt, for  which 
he  may  be  stricken  from  the  roll  of  attorneys ; 
and  he  can  only  be  restored  by  a  revocation 
of  the  sentence.  Matter  of  Darby,  3  Wheel- 
er's Crim.  Cas.  1. 

9.  The  examination  of  a  witness  before  a 
grand  jury  is  a  proceeding  upon  an  indict- 
ment, within  2  N.  Y.  R.  S.  p.  534,  <5 1,  p.  735, 
punishing  as  a  contempt  the  refusal  of  a 
witness  to  answer  a  proper  question.  People 
V.  Hackley,  24  N.  Y.  74. 

10.  The  proceeding.  A  proceeding  for 
contempt  is  in  tiie  nature  of  a  criminal  pros- 
ecution. Tlie  proceeding  for  a  constructive 
contempt  must  be  commenced  either  by  a 
rule  to  show  cause,  or  by  attachment,  ujion 
affidavit  making  the  charge ;  and  the  accused 
has  the  right  to  be  heard  by  himself  or  coun- 
sel. Whittem  v.  State,  36  Ind.  196.  See 
McConnell  v.  State,  46  lb.  298;  s.  c.  2 
Green's  Crim.  Reps.  723. 

11.  Where  a  contempt  is  committed  in  the 
presence  of  the  court,  the  ofl"ending  party 
may  be  ordered  into  custody  without  war- 
rant. But  a  record  of  the  offense  and  of  the 
arrest  should  immediately  be  made.  If  the 
contempt  be  committed  out  of  the  presence 
of  the  court,  the  offender  may  be  brought 
before  it  by  attachment.  An  attachment 
may  issue  in  the  first  instance,  or  an  order 
may  be  made  for  the  respondent  to  appear 
and  show  cause  why  an  attachment  should 
not  issue  uyainst  liim.     In  the  service  of  the 


CONTEMPT.— CONTINUANCE. 


Ill 


Review  of  Judgment. 


In  Behalf  of  Prosecution.        In  Behalf  of  Defendant. 


attachment,  the  otficer  may  generally  take 
bail  or  a  bond  for  the  appearance  of  the 
respondent.  When  the  attachment  is  issued 
to  enforce  an  appearance  or  answer,  or  for 
not  paying  costs,  or  not  obeying  an  order  or 
decree,  the  officer  must  bring  the  respondent 
into  court.  When  issued  to  enforce  an  ap- 
pearance or  answer,  it  should  specify  the 
suit,  and  the  object  of  the  process ;  but  when 
issued  for  disobeying  an  injunction,  this  is 
unnecessary.  A  proceeding  for  contempt  is 
a  distinct  and  independent  matter,  requiring 
distinct  notices,  and  is  regarded  as  of  a 
criminal  nature.  State  v.  Mathews,  37  New 
Hanip.  4.50. 

12.  The  respondent  may  submit  the  mat- 
ter to  the  court  upon  affidavit,  or  may  de- 
mand of  the  prosecutor  to  file  interrogatories. 
The  usual  course,  when  the  alleged  miscon- 
duct is  denied,  is  for  the  court  to  allow  the 
prosecutor  to  file  interrogatories.  The  inter- 
rogatories may  be  amended,  and  the  respon- 
dent may  examine  witnesses.  If  the  accused 
does  not  appear,  or  if  he  appears  and  makes 
no  denial,  the  court  will  at  once  make  a  de- 
cision and  award  punishment.     lb. 

13.  Wliere  the  relator  and  the  grand  jury 
being  i)reseut  in  open  court,  it  is  stated  on 
the  part  of  the  latter,  that  the  relator  has 
declined  to  answer  a  question  before  them, 
and  he  thereupon  does  not  deny  but  justifies 
his  refusal,  and  reiterates  the  same,  the  con- 
tempt is  in  the  immediate  view  and  presence 
of  the  court,  and  an  affidavit  is  not  necessary 
to  a  commitment.  People  v.  Hackley,  24  N. 
Y.  74. 

14.  Review  of  judgment.  The  judgment 
of  a  magistrate  punishing  for  contempt  can 
only  be  reviewed  on  Imheas  corpus  so  far  as 
to  see  whether  he  had  jurisdiction.  State  v. 
Towle,  42  Xew  llamp.  o40. 


Continuance. 

1.  In  beualf  of  rnosECUTiON. 

2.  In  beh.\lf  of  defendant. 

1.  In  behalf  of  prosecution. 

1.  Ground  for.     When  tlie  injured  party 
is  to  be  used  as  a  witness  by  the  prosecution, 


and  there  is  a  civil  action  pending  for  the 
same  oUense,  the  court  will  continue  the 
criminal  case.    Com.  v.  Elliott,  2  Mass.  372. 

2.  Affidavit.  The  trial  will  not  be  con- 
tinued in  order  that  the  prosecutor  may  issue 
a  capias  against  a  witness,  who  has  been 
summoned  and  refused  to  attend,  unless  the 
prosecutor  makes  an  affidavit,  that  in  his 
opinion  he  cannot  safely  proceed  to  trial 
without  the  witness.  U.  S.  v.  Frink,  4  Day, 
471. 

3.  When  it  will  operate  as  an  acquittal. 
In  Virginia,  where  an  indictment  for  felony 
was  continued  at  the  first  term  of  the  court 
for  the  want  of  time  to  try  it,  and  at  the 
second  term  on  the  motion  of  the  prisoner, 
upon  the  ground  of  the  absence  of  a  material 
witness  for  him,  and  at  each  of  the  three 
succeeding  terms  for  want  of  time  to  try  it, 
it  was  held  that  he  was  entitled  to  be  for- 
ever discharged.  Green's  Case.  1  Rob.  731. 
But  see  State  v.  Patterson,  1  McCord,  177. 

4.  Where  the  prisoner  was  not  present  at 
the  postponement  of  the  trial,  it  was  held 
that  although  he  ought  to  have  been  present 
and  had  a  right  to  be,  yet  the  postponement 
in  his  absence  was  a  mere  irregularity  which 
could  not  be  reached  by  habeas  corpus. 
People  V.  Rulofi",  5  Parker,  77. 

2.  In  behalf  of  defendant. 

5.  In  general,  discretionary  with,  court. 
The  prisoner  cannot  demand  the  postpone- 
ment of  his  trial  as  a  right.  The  court  will 
not  give  the  same  credence  to  the  affidavit 
of  a  person  indicted  for  felony  that  it  would 
to  the  affidavit  of  a  party  to  a  civil  action. 
The  disposition  of  the  motion  raises  no 
question  of  law,  unless  the  record  shows 
that  the  court  decided  as  a  question  of  law 
that  a  postponement  could  not  be  granted ; 
or  that  the  court  decided  that  a  witness  was 
material  and  that  his  absence  was  cause  for 
a  postponement,  and  then  compelled  the 
prisoner  to  jjroceed  forthwith  to  trial. 
People  V.  Hoitou,  4  Parker,  222,  referring  to 
People  V.  Vermilyea,  7  Cow.  869. 

6.  The  statute  of  New  York  (3  R.  S.  303, 
.5th  ed).,  which  provides  that  Courts  of  Ses- 
sions shall  send  all  indictments  not  triable 
therein,  to  the  next  Court  of  Oyer  and  Term- 


112 


CONTINUANCE. 


In  Behalf  of  Defendant. 


jner,  there  to  be  determined  according  to 
law,  and  that  the  said  courts  may  also  by  an 
order  to  be  entered  in  their  minutes,  send  all 
indictments  for  offenses  triable  before  them 
which  shall  not  have  been  heard  and  de- 
termined to  the  next  Court  of  Oyer  aiid 
Terminer  to  be  there  determined  according 
to  law,  does  not  require  that  the  prisoner 
shall  be  tried  during  the  next  session  of  the 
court  or  not  at  all,  but  leaves  the  control  of 
the  calendar  with  the  presiding  judge,  who 
may  if  he  choose  postpone  the  trial.  Real  v. 
People,  So  Barb.  5ol. 

7.  Decision  may  be  reviewed  on  error. 
It  must  be  a  most  arbitrary  and  oppressive 
exercise  of  power  on  the  part  of  the  court 
in  refusing  a  con.tinuance,  to  justify  a  court 
of  error  to  interfere.  Sealy  v.  State,  1  Kelly, 
213;  but  it  will  do  so,  were  the  refusal  of  a 
continuance  has  worked  a  manifest  injury. 
McDaniel  v.  State,  8  Smed.  &  Marsh.  401 ; 
contra^  Lindsay  v.  State.  15  Ala.  43 ;  State 
V.  Duncan,  6  Ired.  243.  And  see  Green  v. 
State,  13  Mo.  382. 

8.  The  prosecution  having  entered  a  nolle 
'prosequi.,  the  defendant  entered  into  a  recog- 
nizance with  sureties  for  his  appearance  on 
the  first  day  of  the  next  term  of  the  court, 
and  from  day  to  day  thereafter,  to  answer 
to  any  indictment  that  might  be  preferred 
against  him,  and  was  then  released  from 
custody.  The  same  day,  the  judge  direct- 
ed a  special  grand  jury  to  bes  ummoned 
caused  the  defendant  to  be  arrested,  and  on 
the  finding  of  another  indictment,  tried  the 
defendant  against  his  objection,  refusing  a 
continuance.  Held  not  a  ground  for  reversing 
a  judgment  of  conviction.  Blemer  v.  People, 
76  111.  2G5. 

9.  In  California,  decisions  on  application 
for  continuances  are  reviewable  on  appeal. 
People  V.  Diaz,  6  Cal.  248.  In  Georgia,  un- 
less the  prisoner  expressly  waives  an  objec- 
tion to  the  legality  of  an  adjournment,  with 
a  view  to  a  trial  which  is  to  bind  him,  he 
may  take  advantage  of  it,  even  after  verdict. 
Hove  V.  State,  39  Ga.  718. 

10.  What  defendant  required  to  show. 
To  entitle  a  party  to  a  postponement  of  the 
trial,  on  the  ground  that  witnesses  are  absent, 
three  things  must  be  shown :     1st.  That  the' 


witnesses  are  material.  2d.  That  the  party 
api^lyiag  has  been  guilty  of  no  neglect.  3d. 
That  there  is  reasonable  expectation  of  his 
being  able  to  procure  their  attendance  at  the 
time  to  which  he  asks  to  have  the  trial  put 
ofi".     Hyde  v.  State,  16  Texas,  445. 

11.  The  absence  of  a  witness  who  lives 
beyond  the  jurisdiction  of  the  court  is  not 
a  ground  for  a  continuance.  Com.  v.  Mil- 
lard, 1  Mass.  6 ;  State  v.  Fyles,  1  Const.  334 ; 
Allen  V.  State,  10  Ga.  85.  A  person  being 
indicted  for  felony,  made  aflidavit  that  he 
had  four  material  witnesses  who  were  absent 
and  resident  in  other  States,  but  did  not 
name  them,  or  state  that  he  tried  to  procure 
their  attendance,  or  that  he  had  expected  to 
be  able  to  do  so.  Held  that  it  was  not  a  proper 
case  for  a  continuance.  Hurd's  Case,  5 
Leigh,  715.  And  see  Com.  v.  Gross,  1  Ashm. 
281. 

12.  It  is  not  a  ground  for  a  continuance, 
that  the  witness  summoned  to  prove  a  par- 
ticular fact  is  not  present,  unless  it  is  shown 
that  the  fact  cannot  be  proved  by  any  other 
person  whose  attendance  can  be  procured. 
Freleigh  v.  State,  8  Mo.  606. 

13.  When  the  jjrisoner  moves  to  postpone 
the  trial,  the  strict  rule  requires  that  he  shall 
make  a  full  disclosure  of  the  names  of  his 
witnesses  and  of  the  facts  he  expects  to 
prove  by  them.  But  the  court  ought  to 
grant  reasonable  opportunity  to  correct  and_^ 
amplify  the  affidavits  before  a  decision,  ^ 
People  V.  Horton,  4  Parker,  222. 

14.  The  court  may  require  that  the  affi- 
davit of  an  absent  witness,  setting  forth 
what  he  will  testify,  shall  be  produced  as 
the  ground  for  a  continuance,  notwithstand- 
ing the  prisoner  shows  diligence.  Mendum 
V.  Com.  6  Rand.  704. 

15.  The  trial  will  usually  be  postponed  on 
account  of  the  absence  of  the  defendant's 
witnesses,  on  a  general  affidavit,  unless  it  is 
apparent  that  the  application  for  postpone- 
ment is  merely  for  delay,  in  which  case  the 
affidavit  must  state  the  nature  of  the  de-  \ 
fense  to  be  sustained  by  the  absent  witnesses,  ^ 
in  order  that  the  court  may  judge  of  their 
materiality.  People  v.  Wilson,  3  Parker, 
199.  Where  it  appeared  that  no  person  ex- 
cept the  prisoner  and  the  deceased  was  at 


CONTINUANCE. 


113 


In  Behalf  of  Defendant. 


the  scene  of  an  alleged  murder,  and  there 
was  no  pretense  of  an  alibi,  it  was  held 
proper  for  the  court  to  refuse  a  postpone- 
ment, unless  the  prisoner  disclosed  tlie  na- 
ture of  the  defense  which  he  intended  to 
establish  by  the  testimony  of  the  absent 
witnesses.     lb. 

16.  Where  an  affidavit  for  a  continuance 
in  a  prosecution  for  horse  stealing,  on  ac- 
count of  the  absence  of  a  witness  by  whom 
the  defendant  expected  to  prove  that  he 
"  did  not  steal  the  horse,"  but  "  traded  "  for 
him,  did  not  state  any  of  the  attending  cir- 
cumstances, or  show  from  whom  or  when 
and  where  the  defendant  purchased,  it  was 
held  insufficient.  Cockburn  v.  State,  32 
Texas,  359. 

17.  The  admitting  by  consent,  of  an  affi- 
davit for  a  continuance,  on  the  ground  of 
the  absence  of  a  material  witness,  is  an  ad- 
mission of  the  facts  which  the  affidavit  con- 
tains, as  to  what  the  absent  witness  will 
testify.     Willis  v.  People,  1  Scam.  399. 

18.  "When  defendant  entitled  to  con- 
tinuance. In  South  Carolina,  on  the  trial 
of  an  indictment  for  a  misdemeanor,  the  de- 
fendant has  a  right  to  a  continuance  until 
the  next  term  after  the  indictment  is  found. 
State  V.  Frazer,  3  Bay,  56, 

19.  Where  the  prisoner  was  committed  so 
short  a  time  before  the  court  that  he  could 
not  obtain  his  witnesses,  it  was  held  that 
he  was  entitled  to  a  continuance.  State  v. 
Lewis,  1  Bay,  1. 

20.  Illness  of  counsel,  where  there  is  but 
one,  or  the  leading  counsel,  where  there  are 
more  than  one,  is  ground  for  a  continuance, 
Avherc  the  sickness  is  so  sudden  that  another 
counsel  cannot  do  the  case  justice.  Allen  v. 
State,  10  Ga.  85. 

21.  Where  it  appeared  that  B.  had  been 
subpojnaed,  but  was  unable  to  attend  on 
account  of  illness,  and  that  his  attendance 
could  be  procured  at  the  next  term  of  the 
court,  and  that  the  affidavit  was  not  made 
for  delay,  it  was  held  that  a  motion  for  a 
continuance  should  have  been  granted. 
Gross  V.  State,  2  Carter,  135. 

22.  During  a  trial  for  murder,  before  the 
defense  had  closed,  a  material  witness  for 
the  defendant,  \\  ho  had  been  subpoenaed,  was 

8 


taken  so  sick  as  not  to  be  able  to  attend.  It 
was  thereupon  agreed,  that  if  the  witness 
was  able  to  testify  at  any  time  before  the 
case  was  submitted  to  the  jury,  he  should 
be  allowed  to  do  so,  and  if  he  was  not  able, 
the  defendant  should  have  a  right  to  move 
for  the  postponement  of  the  trial.  When 
the  rebutting  evidence  on  the  part  of  the 
State  was  closed  the  defendant  moved  the 
court  to  postpone  the  trial  for  eight  days, 
and  in  support  of  such  motion,  ffied  affi- 
davits showing  the  materiality  of  the  wit- 
ness, and  that  his  sudden  and  serious  illness 
prevented  his  attendance.  The  court  hav- 
ing refused  to  put  oflf  the  trial,  it  was  held 
error.  Jenks  v.  State,  39  Ind.  1.  See  Cut-  J_ 
ler,  V.  State,  42  Ind.  244.  ~ 

23.  Where  an  indictment  for  having  in 
possession  counterfeit  bank  notes,  was  found 
on  the  first  day  of  the  term,  and  on  the 
second  day,  the  defendant  being  arraigned, 
moved  for  a  continuance  on  an  affidavit 
made  by  him,  stating  that  he  could  not 
safely  proceed  to  trial  for  the  want  of  the 
evidence  of  A.  and  B.  who  resided  in  another 
State ;  that  he  could  prove  by  them  and 
each  of  them,  that  he  was  an  honest  and 
upright  man ;  how  he  came  by  the  posses- 
sion of  the  counterfeit  money;  that  he  had 
no  knowledge  that  the  money  was  counter- 
feit until  he  was  arrested;  that  he  did 
not  know  of  any  other  witness  within  the 
jm'isdiction  of  the  court,  by  whom  he  could 
prove  the  same  facts ;  that  he  could  obtain 
their  testimony  by  the  next  term,  and  that 
the  affidavit  was  not  made  for  delay — it  was 
held  that  the  court  erred  in  refusing  to 
grant  the  continuance.  Spcnce  v.  State,  8 
Blackf.  281. 

24.  Where  a  continuance  was  granted  on 
the  application  of  the  prosecution  to  the 
next  regular  term  of  the  court,  and  after- 
ward it  appearing  that  a  material  witness  on 
behalf  of  the  State  was  in  the  last  stnges  of 
consumption,  the  case  was  moved  for  trial 
at  an  adjourned  term  of  the  court,  when  the 
prisoner's  counsel  asked  for  a  continuance, 
on  the  ground  that  material  witnesses  for 
the  prisoner  were  absent,  which  application 
the  court  refused,  it  was  held  that  it  was 
error  to  bring  on  the  case  before  the  term  to 


114 


CONTINUANCE.— COEPORATIOK 


In  Behalf  of  Defendant. 


Right  under  Charter. 


"which  it  was  at  first  continued,  and  that  the 
denial  of  the  motion  on  the  part  of  the 
pri.«oner  to  continue  the  case  was  also  error. 
McKay  v.  State,  12  Mo.  492. 

25.  Absence  of  witnesses  to  character. 
Trials  are  not  usually  put  off  on  account  of 
the  al)sence  of  witnesses  to  character,  but 
where  an  admission  from  the  public  pros- 
ecutor of  the  previous  good  character  of  the 
accused  is  necessary  to, preveut  a  postpone- 
ment, the  admission  must  be  unqualified. 
People  V.  Wilson,  3  Parker,  199. 

26.  The  aflfidavit  of  a  prisoner  who  is  a 
stranger,  that  at  the  next  term  of  the  court 
he  can  prove  good  character  by  witnesses 
from  another  State ;  that  he  can  show  that 
the  property  charged  to  be  stolen  belongs  to 
another  person  than  the  one  stated  to  be  the 
owner  in  the  indictment,  and  that  he  can 
also  show  an  alihi.,  which  he  cannot  now 
prove  because  of  his  recent  arrest,  is  suffi- 
cient ground  for  a  continuance.  Bledsoe  v. 
Com.  6  Rand.  673. 

27.  Admission  of  absent  testimony. 
Where  the  prisoner  is  entitled  to  a  contin- 
uance on  account  of  the  absence  of  material 
witnesses,  he  cannot  be  compelled  to  go  to 
trial  upon  the  admission  of  the  prosecution 
that  the  witnesses,  if  present,  would  testify 
as  claimed.  The  admission  must  be  of  the 
truth  of  the  proposed  testimony.  State  v. 
Brette,  6  La.  An.  652. 

28.  Imposition  of  terms.  The  failure  of 
the  defendant  to  obtain  compulsory  process 
for  his  witnesses,  is  not  such  negligence  as 
will  deprive  him  of  the  right  to  a  contin- 
uance, but  it  will  authorize  the  court  to 
impose  terms  in  granting  the  motion.  Allen 
V.  State,  10  Ga.  85. 


Coninction. 


See  Summary  conviction;  Verdict. 


Coroner's    Jnqucst. 

1.  Nature.  At  common  law,  a  coroner 
holding  an  inquest  super  vuum  corporis  is 
in  the  performance  of  functions  judicial  in 


their  character.     People  v.  Deviue,  44  Cul. 
452  ;  s.  c.  2  Green's  Crim.  Reps.  405. 

2.  Second  inquest.  After  inquisition 
found,  a  second  coroner's  inquest  cannot  be 
held  until  the  first  has  been  vacated  and  a 
new  inquiry  ordered  by  the  court.  People 
V.  Budge,  4  Parker,  319. 


Corporation. 


1.  Sight  under  charter.  Where  a  com- 
pany has  complied  with  the  conditions  of 
their  charter  by  the  payment  of  large  sums 
of  money,  it  is  not  competent  for  the  Legis- 
lature, without  any  change  of  circumstances, 
under  its  authority  to  amend  the  charter,  to 
pass  a  law  requiring  the  company  to  do  acts 
from  which,  by  the  terms  of  the  charter, 
they  had  been  exempted.  Com.  v.  Essex 
Co.  13  Gray,  239. 

2.  Forfeiture  of  franchises.  On  an  in- 
formation filed  against  a  railroad  company, 
it  appeared  that  their  road  had  been  used 
for  the  transportation  of  freight  so  as  to 
meet  the  public  demands;  that  the  respond- 
ents had  been  ready  to  carry  any  passengers 
and  draw  any  passenger  cars  for  a  reasonable 
compensation ;  that  none  had  been  offered 
which  they  had  not  transported;  that  there 
was  not  sufiicient  business  to  pay  the 
expenses  of  running  regular  passenger  trains; 
that  the  want  of  such  business  had  been 
caused  by  establishing,  under  authority  of 
the  Legislature,  a  competing  line ;  and  that 
for  these  reasons  the  respondents  discon- 
tinued the  running  of  regular  trains,  and 
gave  public  notice  thereof.  Held.,  that  such 
discontinuance  was  not  a  breach  of  public 
duty  involving  the  forfeiture  of  the  fran- 
chises of  the  company.  .  Com.  v.  Fitchburg 
R.  R.  Co.  12  Gray,  180. 

3.  Indictment.  A  corporation  is  amen- 
able to  indictment  for  a  misfeasance.  Com. 
V.  Proprs.  of  New  Bedford  Bridge,  2  Gray, 
339. 

4.  Judgment.  When  a  corporation,  after 
due  notice,  fails  to  appear  to  answer  to  an 
indictment,  judgment  by  default  may  bo 
rendered  against  it.  Boston,  itc,  R.  R.  v. 
State,  32  New  Kamp.  215. 


DEAD   BODY.— DISINTERRING   THE   DEAD. 


115 


Leaving  Unburied. 


Judgment  on  Demurrer. 


At  Common  Law. 


Scab   Sobii, 

Leaving  unburied.  It  is  indictable  to 
throw  a  dead  body  into  a  river  without  the 
rites  of  christian  burial.  Kanavan's  Case,  1 
Maine,  226. 

See  Cemetery  ;  Disinterring  the  dead. 


JJcaMij  lllcapous. 

See  CoNCEAIiED    WEAPONS. 


iUcmuvrcn 


1.  Judgment  on.  The  rule  that  judgment 
on  demurrer  must  be  given  against  the  party 
who  commits  the  first  substantial  error  in 
pleading,  is  applicable  to  criminal  as  well  as 
to  civil  actions.  People  v.  Krummer,  4 
Parker,  217. 

2.  When  an  indictment  is  adjudged  good 
on  demurrer,  the  prisoner  may  except.  If 
his  exceptions  are  sustained,  judgment  will 
be  rendered  in  his  favor.  If  the  exceptions 
are  overruled,  or  if  no  exceptions  are  taken, 
judgment  will  be  rendered  for  the  State, 
unless  at  the  time  of  demurring,  the  prisoner 
has,  M'ith  the  consent  of  the  prosecution, 
reserved  the  right  to  plead  anew.  State  v. 
Dresser,  .54  Maine,  569. 

3.  Admission  by.  Where  a  demurrer  to 
a  plea  of  former  conviction  was  sustained,  it 
was  held  that  if  the  defendant  desired  to 
answer  further,  he  should  have  claimed  the 
right  when  he  filed  his  demurrer,  or  have 
obtained  leave  to  plead  double  at  the  begin- 
ning, and  that  as  he  had  not  done  either, 
his  right  must  be  deemed  waived.  State  v. 
Inness,  53  Maine,  536. 

4.  Ln  Vermont,  to  an  indictment  under  the 
statute  (Gen.  Stats,  eh.  113,  §31),  for  "re- 
moving and  carrying  away  one  saw-mill  saw, 
•which  was  then  and  there  a  part  of  the 
machinery  of  a  certain  water  saw-mill,"  «&c., 
the  defendant  demurred,  on  the  ground  that 
the  saw  was  not  "  a  part  of  the  machinery." 
Held^  that  the  offense  was  admitted  by  the 

Icmurrer.     State  v.  Avery,  44  Vt.  639. 


IDbiutcrriugi   tl)c  Ocab. 

1.  At  common  law.  It  was  a  crime  at 
common  law  to  dig  up  and  remove  a  corpse. 
Com.  V.  Cooley,  10  Pick.  37. 

2.  "What  constitutes.  The  crime  of  dis- 
interring the  dead  consists  in  the  removal  of 
a  dead  body  without  the  consent  of  such 
deceased  person  obtained  in  his  or  her  life 
time,  or  of  the  near  relatives  of  the  deceased 
since  his  or  her  death.  Tate  v.  State,  6 
Blackf.  110. 

3.  In  Massachusetts,  the  removal  of  a 
dead  body  is  not  an  offense  within  the 
statute  (of  1830,  ch.  57),  unless  done  with 
the  intent  to  use  it  or  dispose  of  it  for  the 
purpose  of  dissection.  Com.  v.  Slack,  19 
Pick.  304. 

4.  To  constitute  the  oifeuse  of  disinter- 
ring a  dead  body,  it  is  not  necessary  th.it  all 
engaged  should  be  actually  present,  pro- 
vided that  they  are  near  enough  to  render 
assistance  should  it  be  needed.  Tate  v. 
State,  6  Blackf.  110. 

5.  Indictment.  An  indictment  for  remov- 
ing a  dead  body,  need  not  state  to  whom 
the  burying  ground  belonged.  Com.  v. 
Cooley,  10  Pick.  37;  or  allege  that  it  was 
the  body  of  a  human  being;  and  an  allega- 
tion of  the  name  sufficiently  indicates  the 
sex.  Where  the  place  of  burial  is  described 
as  "  a  grave  yard  in  the  town  of  B.,  O. 
County,''  the  particular  grave  yard  need  not 
be  designated.  People  v.  Graves,  5  Parker, 
134.  A  count  in  an  indictment,  which 
charged  the  removal  from  its  grave  of  a  cer- 
tain other  deceased  child  of  said  Burke, 
"  that  yet  had  no  name  given  to  it, "  without 
the  consent,  &c.,  was  held  good.  Tate  v. 
State,  6  Blackf.  110. 

6.  Evidence.  On  tiie  trial  of  an  indict- 
ment for  feloniously  removing  a  dead  body 
from  the  grave,  a  charge  of  the  court  to  the 
jury,  that  "it  would  be  just  as  good  to 
identify  a  foot  or  a  hand  as  the  whole  per- 
son," is  not  erroneous.  People  v.  Graves,  5 
Parker,  134. 


?Di0ori)crln  fjousc. 


8ie  Nuisance. 


IIG 


DISOEDEKLY   PEKSON.— DUELING. 


Proof  of  Marriage. 


Sending  Challenge. 


Qisovicrhj  |)crson. 

1.  Proof  of  marriage.  On  a  complaint 
against  a  man  as  a  disorderly  person  for 
neglecting  to  support  liis  -wife,  proof  that 
the  parties  had  for  many  years  lived  to- 
gether as  husband  and  wife,  is  competent 
evidence  of  marriage.  People  v.  McCor- 
mack,  4  Parker,  9. 

2.  Defense.  On  a  charge  against  one  of 
being  a  disorderly  person,  in  that  he  neg- 
lected to  support  his  wife  and  child,  the  de- 
fendant proved  in  defense,  that  there  was 
depending  in  the  courts,  an  action  for  di- 
vorce, brought  by  him  against  his  wife,  and 
that  while  it  was  depending,  there  was  an 
order  made  in  the  Supreme  Court  by  which 
he  was  required  to  pay  her  alimony  during 
the  pendency  of  the  action ;  that  a  deter- 
mination had  been  had  in  said  action,  which 
determination  had  been  reversed ;  that  the 
case  was  now  in  the  Court  of  Appeals,  and 
that  after  its  removal  there,  the  application 
had  been  renewed  for  the  original  allowance 
of  alimony,  and  an  order  made  granting  $50 
as  a  gross  sum  and  for  expenses  of  the 
action,  which  sum  he  had  paid  to  her  attor- 
ney. Held,  that  the  conviction  of  the  de- 
fendant should  be  affirmed  with  costs. 
People  V.  Mitchell,  2  N.  Y.  Supm.  N.  S. 
172. 

3.  Security.  In  New  York,  where  on  the 
return  of  the  warrant,  it  appears  that  the 
defendant  was  a  disorderly  person,  the  jus- 
tice may  require  sufficient  sureties  for  good 
behavior  for  one  year,  in  default  of  which 
he  may  be  committed.  The  justice  has  no 
power  to  organize  a  Court  of  Special  Ses- 
sions, require  the  defendant  to  plead,  and 
after  trial,  sentence  him  to  pay  a  fine  or  be 
imprisoned.     People   v,   Carroll,  3   Parker, 

ro 
/  o. 

4.  Appeal.  Where  one  is  brought  before 
a  New  York  police  justice,  as  a  disorderly 
person,  under  the  statute  of  1866  (N.  Y. 
Sess.  Laws  of  1860,  ch.  508,  p.  1007),  for 
abandoning  his  wife,  and  ordered  to  pay  a 
sum  weekly  for  her  support,  the  Supreme 
Court  will  not  review  the  proceedings  on 
certiorari,  any  appeal  from,  or  amendment 
to,  such  an  order,  belonging  exclusively  to 


the  Court  of  Sessions,  which  may  be  com- 
pelled by  mandamus  to  entertain  the  case. 
Matter  of  Hook,  55  Barb.  257. 


Disturbing  Ucligious 
iilccting* 

See  Eeligiotjs  meeting. 


IDnmkcnuc50. 

See  Common  drunkard  ;  Intoxication  as 

A  DEFENSE. 


Dueling. 


1.  Sending  challenge.  On  an  indictment 
for  carrying  a  challenge  to  a  duel,  in  the 
county  of  Suffolk,  Massachusetts,  it  was 
proved  that  the  duel  was  fought  in  Rhode 
Island.  Ildd  that  sending  the  challenge 
was  an  offense  within  the  statute  of  Massa- 
chusetts. Com.  V.  Boott,  Thach.  Crim.  Cas> 
390. 

2.  Where  a  challenge  was  delivered  in 
South  Carolina,  to  fight  a  duel  in  Georgia, 
it  was  held  a  violation  of  the  statute  of  the 
former  State,  and  indictable  there.  State  v. 
Taylor,  3  Brev.  243.  See  State  v.  Taylor, 
1  Const.  R.  106. 

3.  Any  agreement  to  fight  with  loaded 
pistols,  and  actually  fighting  in  pursuance  of 
the  same,  constitutes  a  duel  under  the  stat- 
ute of  South  Carolina,  without  reference  to 
the  time  when  the  agreement  was  made. 
Herriott  ads.  State,  1  McMullan,  126. 

4.  In  South  Carolina,  the  proper  construc- 
tion of  the  words  in  the  statute  of  1812, 
' '  If  any  person  resident  in  or  being  a  citi- 
zen of  this  State,  shall  send,  give,  or  accept 
a  challenge  to  fight  a  duel  within  this 
State,"  is,  "if  any  person,"  «fcc.,  "shall 
within  this  State  send  or  give,  or  accept," 
&c.  Cunningham  v.  State,  2  Speers,  246. 
And  such  act  is  constitutional.  State  v. 
Dupont,  2  McCord,  334.  So  likewise,  is  the 
act  of  New  York,  of  1816  (Sess.  40,  ch.  1). 
Barker  v.  People,  3  Cow.  686. 


DCELING.— DUEESS. 


117 


Form  of  Challenge. 


What  is. 


5.  In  Alabama,  since  the  statute  of  1819, 
the  mere  sending  of  a  challenge  to  fight  a 
duel  is  not  indictable,  unless  a  combat  takes 
place.     Smith  v.  State,  1  Stewart,  506. 

6.  In  North  Carolina,  a  challenge  to  fight 
a  duel  out  of  the  State  is  indictable.  State 
V.  Farrier,  1  Hawks,  487. 

7.  Form  of  challenge.  No  particular 
form  of  words  is  necessary  to  constitute 
a  challenge  to  fight  a  duel.  Whether  it 
amounts  to  such,  is  a  question  for  the  jury. 
Ives  V.  State,  13  Ala.  276.  In  South  Caro- 
lina, under  the  statute  of  1813,  a  challenge  to 
fight  a  duel,  may  be  given  verbally.  State 
V.  Strickland,  3  Nott  &  McCord,  181. 

8.  Indictment.  An  indictment  for  sending 
a  challenge,  need  not  set  out  a  copy  of  the 
challenge.  State  v.  Farrier,  1  Hawks,  487  ; 
Brown  v.  Com.  3  Va.  Cas.  516. 

9.  An  indictment  for  challenging  another 
to  fight  a  duel,  need  not  aver  that  the  par- 
ties were  citizens  of  the  State,  or  that  the 
paper  charged  to  have  been  meant  by  the 
defendant  as  a  challenge,  was  so  under- 
stood by  the  parties.  Moody  v.  Com.  4 
Mete.  Ky.  1. 

10.  The  place  where  a  proposed  duel  is  to 
be  fought  need  not  be  alleged  in  the  indict- 
ment.    Ivey  V.  State,  13  Ala.  276. 

11.  An  indictment  for  sending  a  challenge 
to  fight  a  duel,  in  which  the  time  was  stated 
in  the  alternative,  and  which  did  not  con- 
clude "  against  the  peace  and  dignity  of  the 
United  States,"  was  held  bad.  L\  S.  v. 
Chittenden,  Hemp.  61. 

12.  An  indictment  which  charges  that  the 
defendant  "did  fight  a  duel  with  pistols, " 
will  be  bad  on  demurrer  at  common  law- 
Lambert's  Case,  9  Leigh,  G03. 

13.  In  South  Carolina,  an  indictment 
against  a  person  for  carrying  a  challenge 
need  not  charge  that  the  challenger  was  a 
citizen  or  resident  of  the  State.  Cunning- 
ham v.  State,  2  Speers,  346. 

;  14.  In  Virginia,  an  indictment  for  aiding 

I  and  abetting  in  fighting  a  duel  must  allege 
that  a  duel  was  fought.  Dudley's  Case,  6 
Leigh,  613. 

15.  Evidence.  On  the  trial  of  an  indict- 
ment for  sending  a  challenge  to  fight  a  duel, 
ithe  prosecution  may  prove  that  a  written 


challenge  was  sent,  without  producing  the 
challenge.  Com.  v.  Hooper,  ThacL.  Crim. 
Cas.  400. 

16.  On  the  trial  of  an  indictment  for 
carrying  a  challenge  to  fight  a  duel,  it  must 
be  proved  that  the  ofi"ense  was  committed 
within  the  State,  or  within  the  jurisdiction 
of  the  court.     Gordon  v.  State,  4  Mo.  375. 

17.  Upon  the  trial  of  an  indictment  against 
a  second  for  "  giving,  sending  and  deliver- 
ing a  challenge  "  to  fight  a  duel,  proof  of  a 
custom  which  requu-ed  a  second  to  deliver  a 
challenge  was  held  inadmissible.  So  like- 
wise is  evidence  that  the  defendant  was  a 
friend  of  the  principal  in  a  previous  diffi- 
culty with  another  person.  Com.  v.  Boott, 
supra. 

18.  The  declarations  of  the  second  in  a 
duel  are  admissible  in  evidence  against  the 
principal.  State  v.  Dupont,  3  McCord,  334. 
And  so  likevvise,  the  declarations  of  the 
principal  are  admissible  against  the  second 
on  the  trial  of  the  latter.  Com.  v.  Boott, 
supra. 

19.  A.  in  a  letter  to  B.  employed  language 
supposed  to  amount  to  a  challenge  to  fight  a 
duel,  and  by  a  postscript  referred  B.  to  C. 
(the  bearer  of  the  letter)  to  leani  whether 
any  further  arrangements  were  necessary. 
Held  that  B.  might  testify  to  the  conversa- 
tion between  C.  and  himself.  State  v.  Tay- 
lor, 1  Const.  K.  106. 

20.  The  intent  and  meaning  of  the  sup- 
posed challenge  may  be  shown  upon  the 
trial,  by  proof  written  or  oral.  Com.  v. 
Pope,  3  Dana,  418;  Com.  v.  Hart,  6  J.  J. 
Marsh.  619;  Herriott  v.  State,  1  McMuUan, 
136. 


![)urc5s. 


1.  What  is.  An  arrest  for  improper  pur- 
poses without  a  just  cause,  or  for  a  just  cause 
but  without  lawful  authority,  or  for  a  just 
cause  and  under  lawful  authority  for  unlaw- 
ful purposes,  constitutes  a  duress.  Strong  v. 
Crannis,  20  Barb.  122. 

2.  How  determined.  The  question  of 
duress   is  to  be  left  to  the  jury  upon  the 


118 


DUKESS.— EAVESDROPPING.— EMBEZZLEMENT. 


Excuse  for  Illegal  Act. 


What  Constitutes. 


whole  evidence  bearing  upon  it,  and  not  to 
be  determined  as  matter  of  law,  either  upon 
the  "whole  or  certain  excepted  portions  of 
the  evidence.  State  v.  Learned,  41  Yt.  585. 
3.  Excuse  for  illegal  act.  An  illegal 
act  cannot  be  justified  by  an  order  from 
superior  authority,  no  matter  how  high  the 
source  from  which  it  emanates.  But  such 
order  may  go  in  extenuation  of  it.  State  v. 
Sparks,  27  Texas,  627. 


What  constitutes.  The  offense  was  held 
to  have  been  committed  by  one  who  clan- 
destinely approached  near  to  the  room  occu- 
pied by  the  grand  jury,  while  they  were 
engaged  in  the  discharge  of  their  duties,  for 
the  purpose  of  overhearing  what  was  said 
and  done.  State  v.  Pennington,  3  Head, 
Tenn.  299.  Eavesdropping  was  indictable 
at  common  law.  State  v.  Williams,  2  Tenn. 
108. 


(£mbn;lcmc!it 

1 .  What  constitutes. 

2.  Indictment. 

3.  Jtjkisdiction. 

4.  Evidence. 

5.  Verdict. 

1.  What  constitutes. 

1.  Need  not  have  been  demand.     It  may 

be  embezzlement,  altliough  there  has  been  no 
demand  of  the  property  alleged  to  have  been 
embezzled,  or  denial  of  its  receipt,  or  false 
account  given  of  it,  or  false  statement  or 
false  entry  concerning  it,  or  a  refusal  to  ac- 
count for  it.  Com.  v.  Tuckerman,  10  Gray, 
173. 

2.  The  fiduciary  relation  essential  in  em- 
bezzlement is  sufficiently  expressed  by  the 
averment  that  the  property  was  delivered  to 
the  defendant  upon  the  trust  and  confidence 
that  he  would  return  it  to  the  owner  on  de- 
mand. A  fraudulent  conversion  to  the  de- 
fendant's own  use  would  be  embezzlement, 
whether  demand  were  made  or  not,  and 
therefore   such    demand    need    neither    be 


averred  or  proved.  Com.  v.  Hussey,  111 
Mass.  432.  But  it  is  otherwise  in  Illinois, 
under  the  statute  of  March  4th,  1869,  for  the 
protection  of  consignors  of  goods.  Wright 
V.  People,  61  111.  382;  s.  c.  2  Green's  Crim. 
Reps.  558. 

3.  Defendant  mingling  funds  with  his 
own.  A  person  having  received  a  note  for 
the  purpose  of  causing  it  to  be  discounted 
for  another  at  a  bank,  sent  it  to  the  cashier 
with  other  notes  of  his  own  to  be  discounted 
on  his  private  account,  and  procured  the 
proceeds  to  be  jjassed  to  his  own  credit. 
Held  that  he  was  guilty  of  embezzlement  as 
soon  as  the  note  was  delivered  to  the  cashier 
to  be  thus  misused,  and  that  the  subsequent 
payment  of  a  part  of  the  money  on  the 
other's  account,  did  not  purge  the  previous 
criminal  act.    Com.  v.  Butterick,  100  Mass.  1. 

4.  Where  the  treasurer  of  a  railroad  com- 
pany deposits  in  a  bank,  to  his  own  credit  as 
treasurer,  money  of  the  company,  and  after- 
wards in  that  capacity  draws  his  own  check 
upon  the  bank  therefor,  and  receives  the 
amount  of  it  in  bills,  which  he  fraudulently 
converts  to  his  own  use,  it  is  embezzlement, 
although  when  he  drew  the  money  from  the 
bank  he  did  not  intend  to  appropriate  it, 
and  although  when  lie  converted  it,  he 
intended  to  make  it  good,  and  had  the 
means  to  do  it.  Com.  v.  Tuckerman,  10 
Gray,  173.  See  Com.  v.  Mason,  105  Mass. 
163. 

5.  On  the  trial  of  an  indictment  for  em- 
bezzlement it  was  proved  that  J.  L.,  being  in 
need  of  money,  made  his  two  notes  and 
delivered  them  to  the  defendant  to  sell  on 
commission  and  pay  over  the  proceeds  to  a 
brother  of  J.  L. ;  the  defendant  at  the  same 
time  giving  to  J.  L.  as  receipts,  the  defend- 
ant's own  notes  which  were  deposited  by  J. 
L.  with  his  brother,  to  be  surrendered  to  the 
defendant  when  he  should  deliver  the  pro- 
ceeds of  J.  L.'s  notes  pursuant  to  agreement. 
Held  that  if  the  defendant  was  employed 
merely  to  sell  the  notes,  receive  the  pro- 
ceeds, and  pay  over  the  same  to  the  brother  of 
J.  L.,  without  any  authority  to  mingle  them 
with  his  own  funds,  a  fi*audulent  conversion 
of  them  would  constitute  embezzlement. 
Com.  V.  Foster,  107  Mass.  221. 


EMBEZZLEMENT. 


119 


What  Constitutes. 


6.  Misappropriation  of  property.  Where 
bonds  were  pledged  to  the  defendant  by  the 
maker  of  a  cote,  to  secure  the  defendant  as 
indorser,  which  note  the  maker  paid  at  ma- 
turity, it  was  held  that  after  such  payment 
the  defendant  still  held  the  bonds  in  his 
custody  upon  the  further  trust  to  restore 
them  on  demand,  and  that  by  fraudulently 
misappropriating  therq  he  was  guilty  of 
embezzlement.  Com.  v.  Butterick,  100 
Mass.  1. 

7.  An  agent  who  appropriates  money  left 
with  him  by  his  principal  for  the  purchase 
of  land  is  guilty  of  embezzlenient,  although 
the  title  to  the  land  is  in  litigation,  and 
whether  the  contract  of  purchase  can  be 
completed  depends  upon  the  event  of  the 
suit.     State  v.  Healy,  48  Mo.  531. 

8.  Whether  one  who  holds  the  property 
of  another  as  collateral  security  can  be  con- 
victed of  embezzlement  for  pledging  it  to 
secure  his  own  debt,  before  the  debt  is  due 
to  secure  which  it  has  been  given — query. 
Com.  V.  Butterick,  100  Mass.  1. 

9.  Fraudulent  conversion  of  property. 
A.  engaged  the  defendant  to  transport 
thirty-four  tons  of  pig  iron  in  bars  from  Al- 
bany to  Buffalo.  On  the  passage  the  defend- 
ant, with  the  help  of  one  of  his  men,  removed 
from  the  boat  one  hundred  bars  of  the  iron, 
and  took  the  remainder  to  Bufl'alo.  Held 
that  this  constituted  embezzlement,  and  that 
the  acquittal  of  the  defendant  of  larceny  did 
not  bar  his  subsequent  trial  and  conviction 
for  the  first  named  offense.  People  v.  Nich- 
ols, 3  Parker,  579. 

10.  An  agreement  was  entered  into  be- 
tween A.  and  B.,  by  wiiich  B.  undertook,  in 
consideration  of  $5,  to  be  paid  him  by  A.,  to 
trade  a  watch,  the  property  of  A.,  for  a 
wagon.  The  watch  being  delivered  to  B., 
he  did  not  make  the  trade,  but  converted 
the  watch  to  his  own  use.  llclil  that  he  was 
guilty  of  embezzlement.  State  v.  Foster,  37 
Iowa,  404. 

11.  In  Iowa,  under  the  statute  (§  4237), 
a  bond,  bank  note,  bill  of  exchange,  or  other 
l)ill,  order  or  certificate,  may  be  the  subject  of 
larceny  or  embezzlement.  Therefore  where 
the  private  secretary  of  the  governor,  who 
bad  the  custody  of  a  UnUed  States  treasury 


draft,  drawn  in  fnvor  of  the  State  and  payable 
to  the  order  of  the  goveraor,  feloniously  con- 
verted it  to  his  own  use,  it  was  held  that  he 
was  guilty  of  embezzlement,  although  the 
governor  had  not  indorsed  the  draft,  and 
the  amount  could  not  be  recovered  from  the 
government.     State  v.  Orwig,  24  Iowa,  103. 

12.  Where  money  delivered  by  a  bank  to 
a  servant  on  the  master's  check  is  apropri- 
ated  by  the  servant  to  his  own  use,  it  is  em 
bezzlement  and  not  larceny.  Com.  v.  King, 
9  Cush.  284. 

13.  Where  a  bar-keeper  in  an  inn,'intrusted 
to  carry  letters  to  and  from  the  post  office, 
fi'audulently  converted  to  his  own  use  a  letter 
inclosing  money,  given  to  him  to  carry,  it 
was  held  that  he  was  guilty  of  embezzle- 
ment.    People  V.  Dalton,  15  Wend.  581. 

14.  In  New  York,  an  indictment  for  em- 
bezzlement will  lie  against  a  clerk  or  serv- 
ant for  converting  to  his  own  use  the  money, 
goods,  &c.,  of  his  master  or  employer,  as 
well  as  for  thus  converting  the  money, 
goods,  «fec.,  of  any  other  person  which  shall 
iiave  come  into  his  possession,  or  be  under 
his  care,  by  virtue  of  his  employment. 
People  V.  Hennessy,  15  Wend.  147. 

15.  A  clerk  may  be  convicted  of  embezzle- 
ment of  a  bill  of  exchange  under  the  statute 
of  Alabama  (Code,  §  3143),  on  proof  that  he 
fraudulently  disposed  of  the  bill,  which  he 
had  obtained  by  virtue  of  his  employment, 
although  it  first  came  to  the  possession  of 
his  employer.  Lowenthal  v.  State,  33  Ala. 
589. 

16.  One  who  is  employed  by  a  post  com- 
missary to  superintend  a  bakery,  and  whose 
duty  it  is  to  receive  all  the  flour  sent  to  the 
bakery  by  the  commissary,  and  have  it  made 
into  bread,  and  deliver  the  bread  on  the 
order  of  the  commissary,  may  be  indicted  for 
embezzlement,  as  the  agent  of  the  commis- 
sary.    Iliuderer  v.  State,  38  Ala.  415. 

17.  Acts  which  do  not  amount  to  the 
offense.  ^VlK're  a  party  receiving  money, 
has  a  right  to  mix  it  with  his  own,  being 
accountable  for  a  balance,  an  indictment  for 
embezzlement  will  not  lie  upon  a  misappro- 
priation. Where  therefore  a  person  was  in- 
dicted for  embezzling  a  balance  due  from 
him  to  an  insurance  company,  for  whom  he 


120 


EMBEZZLEMENT. 


What  Constitutes. 


Indictment. 


had  received  for  premiums  various  sums  at 
various  times  from  different  individuals,  a 
part  of  -wliicb  lie  bad  paid  over,  and  the 
appropriation  of  no  specific  money  by  bim 
was  shown,  it  was  held  that  bis  conviction 
could  not  be  sustained.  People  v.  Howe,  2 
K  Y.  Supm.  N.  S.  383. 

18.  Where  a  woman  allowed  a  man  to  take 
bank  bills  for  the  purpose  of  counting  them 
in  her  presence,  and  taking  therefrom  a  small 
sum  which  she  consented  to  lend  bim,  and 
instead  of  returning  any  portion,  be  walked 
away  with  the  whole,  it  was  held  that  he 
was  not  guilty  of  embezzlement.  Com.  v. 
O'JIalley,  97  Mass.  584. 

19.  Where  on  the  trial  of  an  indictment 
against  the  treasurer  of  a  bank,  for  fraudu- 
lently taking  and  secreting  moneys  with  in- 
tent to  appropriate  the  same  to  his  own  use, 
the  evidence  tended  to  show  that  the  de- 
fendant took  the  money  from  a  depositor 
without  any  fraudulent  intent  to  convert  it 
to  his  own  use,  and  entered  it  properly  in  the 
books  of  the  bank,  and  that  iive  days  after- 
ward he  altered  the  entries  in  the  books  in 
order  to  conceal  the  fact  that  he  had  received 
this  sum,  thereby  to  cover  up  some  previous 
deficit  occasioned  by  former  dishonest  and 
fraudulent  acts,  it  was  held  that  a  verdict  of 
guilty  was  erroneous.  Com.  v.  Shepard,  1 
Allen,  575. 

20.  Where  the  clerk  of  a  mercantile  firm, 
whose  duty  it  was  to  receive,  safely  keep 
and  disburse  the  moneys  of  the  firm,  being 
about  to  leave,  took  from  the  money  in  bis 
hands  the  amount  due  him  for  his  salary, 
without  the  knowledge  or  consent  of  the 
firm,  and  charged  the  same  to  himself  on 
their  books,  it  was  held  that  he  was  not 
guilty  of  embezzlement.  Ross  v.  Innis,  35 
111.  487. 

21.  The  conversion,  by  a  mechanic,  of  ma- 
terials received  by  him  at  his  shop,  is  not 
embezzlement  within  the  statute  of  Massa- 
chusetts (R.  S.  ch.  136,  §  29).  Com,  v. 
Young,  9  Gray,  5. 

22.  Who  not  deemed  servant  or  agent. 
In  New  York,  where  a  constable  was  em- 
ployed to  collect  certain  demands  without 
suit,  if  the  debtors  would  pay,  and  other- 
wise to  sue  them    before   a  justice  of   the 


peace,  it  was  held  that  he  was  not  a  serv- 
ant of  the  creditor  within  the  meaning  of 
the  statute  concerning  embezzlement.  Peo- 
ple v.  Allen,  5  Denio,  70. 

23.  The  relation  between  the  superintend- 
ent and  keeper  of  a  county  poorhouse,  is  of 
a  public  nature,  and  the  latter  is  not,  when 
acting  as  the  keeper  of  the  poorhouse,  the 
servant  or  agent  of  a  private  person  within 
the  New  York  statute  of  embezzlement  (3 
R.  S.  G78,  §  59).  Neither  is  he  the  agent  or 
servant  of  an  incorporated  company  within 
such  statute.     Coats  v.  People,  22  N.  Y.  245. 

24.  In  Massachusetts,  a  person  emj^loyed 
to  collect  bills  for  the  proprietor  of  a  news- 
paper office,  who  appropriates  the  money  he 
collects,  is  not  an  agent  or  servant,  with- 
in the  statute  (R.  S.  ch.  126,  §  29) 
against  embezzlement.  Com.  v.  Libby,  11 
Mete.  6  k 

25.  Where  an  auctioneer  received  money 
on  the  sale  of  his  employer's  goods,  and  did 
not  pay  it  over,  but  misapplied  it,  it  was 
held  that  he  was  not  an  agent  or  servant 
within  the  meaning  of  the  statute  of  Massa- 
chusetts (R.  S.  ch.  126,  §  29),  whether  he  re- 
ceived the  goods  for  sale  in  the  usual  mode, 
or  on  an  agreement  to  pay  a  certain  sum 
therefor  within  a  specified  time  after  the 
sale.     Com.  v.  Stearns,  2  Mete.  343. 

2.  Indictment. 

26.  Averment  of  relation  of  defendant 
to  party  injured.  In, New  York,  an  indict- 
ment for  embezzlement  under  the  statute  (2 
R.  S.  678,  §  59),  must  charge  that  the  de- 
fendant was  a  clerk  or  servant  of  some  per- 
son (or  an  officer  or  agent  of  a  corpora- 
tion), and  that  the  property  embezzled  came 
to  his  possession,  or  under  his  care,  by  vir- 
tue of  such  employment.  People  v.  Allen, 
5  Denio,  76. 

27.  But  an  indictment  for  having  felo- 
niously recevied  goods  which  had  been  em- 
bezzled, knowing  them  to  have  been  em- 
bezzled, need  not  charge  that  the  person 
who  embezzled  the  goods  was  the  clerk  or 
servant  of  the  owner  of  them.  People  v. 
Stein,  1  Parker,  303. 

23.  An  indictment  which  alleged  that  the 
defendant  had  collected  and  received  a  cor- 


EMBEZZLEMENT. 


121 


Indictment. 


tain  sum  of  money,  in  the  capacity  of  an 
attorney  at  law  for  and  in  behalf  of  A.,  and 
in  the  name  of  A.,  was  held  bad  in  not 
showing  that  the  relation  of  attorney  and 
client  existed  between  A.  and  the  defendant. 
People  V.  Tryon,  4  Mich.  CG5. 

29.  Description  of  property.  An  indict- 
ment which  does  not  allege  the  object  for 
which  the  defendant  was  intrusted  with  the 
property,  or  describe  the  property,  is  fatally 
defective.  Com.  v.  Smart,  6  Gray,  15.  This 
was  held  of  an  indictment  against  an  officer, 

.  for  the  embezzlement  of  money  paid  to  him 
as  fines,  which  failed  to  state  the  character 
or  kind  of  the  fines,  and  to  charge  a  fraudu- 
lent intent.  Peacock  v.  State,  36  Texas,  647. 

30.  An  indictment  for  embezzlement  is 
sufficient  which  describes  the  property  em- 
bezzled with  as  much  particularity  as  is  re- 
quired in  an  indictment  for  larceny.  Com. 
V.  Concannon,  5  Allen,  502;  People  v.  Cox, 
40  Cal.  275. 

31.  An  indictment  for  embezzling  coin 
need  not  specify  the  denomination  of  the 
several  pieces;  and  if  it  do,  evidence  of  the 
embezzlement  of  coin  of  equal  aggregate 
value  will  be  sufiicient  without  proving  the 
denomination.  Riley  v.  State,  32  Texas,  763. 

32.  An  indictment  for  embezzlement 
which  describes  the  property  "  as  certain 
books,  letter-files,  knives,  bank  shares, 
slates,  and  sealing-wax,  to  about  the  value 
of  forty  dollars,"  is  sufiicient  under  the 
statute  of  Alabama.  Mayo  v.  State,  30  Ala.  32. 

33.  An  ipdictment  wliich  alleges  the  lar- 
ceny or  embezzlement  of  printed  sheets,  is 
not  sustained  by  proof  that  they  were  de- 
livered to  the  defendant  by  the  owner  to 
be  bound,  and  that  after  he  had  folded  and 
trimmed  them,  he  embezzled  and  fraudu- 
lently converted  them  to  his  own  use.  The 
indictment  should  have  charged  a  larceny  or 
embezzlement  of  books.  Com.  v.  Merrifield, 
4  Mete.  468. 

34.  A  count  for  embezzlement  may  charge 
the  embezzling  of  several  different  articles, 
some  of  them  greater  and  some  less  than 
$25  in  value.  Coats  v.  People,  4  Parker, 
662. 

35.  An  information  against  a  county  treas- 
uier  for    embezzling  public    funds   in    the 


county  treasury,  need  not  specify  the  kind  of 
funds  embezzled.  State  v.  Smith,  13  Kan- 
sas, 274 ;  Same  v.  Graham,  lb.  299. 

36.  An  indictment  under  the  act  of  Con- 
gress of  March  3d,  1825,  for  embezzling  a 
letter  containing  a  bank  note,  need  not  state 
what  office  the  defendant  held,  nor  set  out 
the  bank  note.     U.  S.  v.  Clark,  Crabbe,  584. 

37.  An  indictment  which  charges  the  em- 
bezzlement of  "a  lot  of  lumber,"  "a  cer- 
tain lot  of  furniture,  "  and  "certain  tools," 
is  bad  for  uncertainty.  State  v.  Edson,  10 
La.  An.  229. 

38.  An  indictment  is  not  demurrable  as 
being  vague  and  indefinite,  which  charges 
the  defendant  vnth  having  received  a  cer- 
tain amount  of  money  to  be  applied  for  the 
use  or  benefit  of  the  bailor,  and  that  on  a 
certain  day,  he  fraudulently  converted  a 
specific  portion  thereof  to  his  own  use,  with- 
out the  consent  of  the  owner  and  to  his  in- 
jury. But  it  is  not  competent  for  the  pros- 
ecution to  prove  that  the  accused  had 
reported  to  the  bailor  special  payments  as 
having  been  made  to  particular  persons  in 
the  performance  of  his  duty  as  bailee,  and 
that  such  pjiyments  were  not  in  fact  made 
to  the  amounts  so  reported,  or  that  there 
were  no  such  persons  as  those  to  whom  the 
payments  were  reported  to  have  been  made. 
Hoyt  V.  State,  50  Ga.  313. 

39.  Averment  of  ownership.  Money 
intrusted  to  an  express  company  for  trans- 
portation may  be  described  in  an  indict- 
ment for  the  embezzlement  of  it  to  be  the 
property  of  the  company.  Riley  v.  State, 
32  Texas,  763. 

40.  An  indictment  for  the  embezzlement 
of  bank  bills  intrusted  by  a  soldier  who  was 
a  minor,  to  the  defendant,  to  be  carried  to 
the  minor's  father,  may  aver  the  ownership 
of  the  bills  to  be  in  the  father.  Com.  v. 
Norton,  11  Allen,  110. 

41.  Where  an  indictment  for  embezzle- 
ment properly  alleges  the  ownership  at  the 
date  of  the  delivery  of  the  property  to  the 
defendant,  and  it  is  averred  that  the  em- 
bezzlement occurred  while  the  trust  con- 
tinued on  which  the  property  was  received, 
there  need  not  be  an  averment  that  the  title 
to  the  property  continued  in  the  party  who 


122 


EMBEZZLEMENT. 


Indictment. 


Jurisdiction. 


Evidence. 


intrusted  it  to  the  defendant  down  to  the 
time  'A'hen  tlie  enibezzleuicnt  was  com- 
mitted.    Com.  V.  Bntterick,  100  Mass.  1. 

42.  It  is  not  a  good  objection  to  an  indict- 
ment for  embezzlement  and  larceny  of  pro- 
visions belonging  to  a  county  poorhouse  that 
they  are  laid  in  the  indictment  as  the  prop- 
erty of  the  superintendent  of  the  poor  of 
the  county.     Coats  v.  People,  4  Parker,  6G3. 

43.  An  indictment  against  a  public  officer 
for  fraudulently  embezzling  and  converting 
to  his  own  use  moneys  under  his  control  by 
virtue  of  his  office,  need  not  allege  that  the 
money  was  the  property  of  another,  or 
whose  money  it  was.  State  v.  Walton,  62 
Maine.  100;  s.  c.  2  Green's  Crim.  Reps.  465. 

44.  Charging  distinct  acts.  The  indict- 
ment may  contain  counts  for  both  embezzle- 
ment and  larceny.  Coats  v.  People,  4  Parker, 
663. 

45.  An  indictment  for  embezzlement 
charged  the  defendant  1st,  with  embezzling 
the  sum  of  three  hundred  and  sixty  dollars 
and  fifty  cents,  the  19th  of  November,  1801 ; 
2d,  with  embezzling  the  sum  of  six  hundred 
and  thirty-two  dollars  and  twenty -five  cents, 
January  1st,  1862.  Held  on  demurrer,  by- 
Norton,  J.,  that  it  was  bad  in  charging  two 
distinct  offenses.  Doubted  by  the  rest  of 
the  court.     People  v.  Bailey,  23  Cal.  577. 

46.  An  indictment  which  alleges  that  the 
defendant  having  received  as  tax  collector 
a  certain  sum  for  licenses  due  the  State,  and  a 
certain  other  sum  for  licenses  due  the  county, 
amounting  in  the  whole  to  a  sum  specified, 
embezzled  said  last  mentioned  sum,  the  prop- 
erty of  said  State  and  county,  does  not 
charge  two  distinct  offenses.  People  v.  De 
La  Guerra,  31  Cal.  416. 

3.  Jurisdiction. 

47.  Of  state  courts.  The  fact  that  when 
an  ofiicer  of  a  national  bank  embezzles  the 
funds  of  the  bank,  he  is  liable  to  punishment 
under  the  act  of  Congress  of  1864,  ch.  106, 
§  55,  does  not  exclude  the  jurisdiction  of  the 
State  courts  over  the  same  offense.  Com. 
v.  Barry,  116  Mass.  1. 

48.  Notwithstanding  the  act  of  Congress 
which  provides  that  if  any  teller  or  other 
oflBcer  of  the  bank  shall  embezzle  the  prop- 


erty of  the  bank,  he  shall  be  punished 
by  fine  and  imprisonment,  it  is  competent  for 
the  legislature  of  a  State  to  pass  a  law  aflect- 
ing  the  business  of  the  bank  with  its  citizens, 
or  protect  the  bank  or  its  customers  in  the 
conduct  of  that  business  by  a  penalty. 
Where,  therefore,  a  teller  of  a  national  bank 
in  Connecticut  stole  a  package  of  bonds 
which  had  been  left  in  the  bank  on  special 
deposit  by  one  of  its  customers,  it  was  held 
that  under  the  statute  of  the  State  (Gen. 
Stats,  tit,  13,  §  191)  in  relation  to  embezzle- 
ment by  the  officers  of  a  bank,  the  courts  of 
the  State  had  jurisdiction  of  the  oftense. 
State  V.  Tuller,  84  Conn.  280. 

49.  In  Maine,  under  the  statute  (R.  S.  ch. 
156,  §  7),  where  a  person  to  whom  property 
is  intrusted,  to  be  carried  for  hire  and  de- 
livered in  another  State,  before  such  delivery 
fraudulently  converts  the  same  to  his  own 
use,  he  is  liable  whether  the  act  of  conver- 
sion be  in  Maine  or  in  the  other  State. 
State  V.  Haskell,  33  Maine,  127. 


1/ 


4.  Evidence. 

50.  Delivery  of  property.  An  indict- 
ment which  alleges  that  property  embezzled 
was  possessed  by  B.,  and  by  him  delivered 
to  the  defendant,  is  supported  by  proof  that 
it  was  delivered  by  B.  to  some  one  acting 
for  the  defendant.  State  v.  Hinckley,  38 
Maine,  21. 

51.  Must  show  fraud.  A  person  cannot 
be  convicted  of  embezzlement  upon  proof 
that  he  received  money  for  the  purpose  of 
paying  a  note,  and  did  not  pay  the  same, 
unless  it  is  further  proved  that  being  the 
agent  of  another,  and  having  received  the 
money  as  such,  he  failed  to  pay  the  same  in 
consequence  of  some  fraudulent  use  or  con- 
version of  the  money.  State  v.  Snell,  9  R. 
I.  113;  s.  c.  1  Green's  Crim.  Reps.  533. 

52.  On  the  trial  of.  an  indictment  for 
embezzling  a  mortgage,  the  following  in- 
struction was  held  proper:  That  to  make 
out  the  charge  against  the  defendant, 
it  must  be  proved  that  he  feloniously  and 
fraudulently  conTerted  to  his  own  use  the 
mortgage,  and  that  it  belonged  to  the  com- 
plainant ;  that  if  the  mortgage  was  a  mere 
cheat  on    the   complainant's  part,  and  ob- 


EMBEZZLEMENT.— ESCAPE. 


123 


Evidence. 


Verdict. 


Indictment. 


At  Common  La^v. 


tained  by  fraud,  the  defendant  might  law- 
fully take  it  into  his  possession  wherever  he 
could  find  it;  but  if  it  came  into  the  com- 
plainant's hands  upon  a  valuable  considera- 
tion actually  paid  by  him,  though  he  was 
not  entitled  to  the  whole  amount  nominally 
due,  and  the  defendant  received  it  upon  the 
trust  that  he  was  to  give  it  to  the  complain- 
ant, and  instead  of  doing  so  appropriated 
it  to  his  own  use,  he  might  be  found  guilty. 
Com.  V.  Concancon,  5  Allen,  503.  See  U.  S. 
V.  Taiutor,  11  Blatch.  374;  s.  c.  2  Green's 
Crim.  Reps.  241. 

53.  Need  not  be  proof  of  separate  acts. 
On  the  trial  of  an  indictment  for  embezzling 
United  States  bonds,  it  is  not  necessary  to 
show  that  the  several  bonds  were  misappro- 
priated by  separate  acts,  or  at  different  times, 
in  order  to  justify  a  conviction  on  each  of 
the  counts  in  which  the  bonds  are  sepa- 
rately described.  In  this  respect,  the  law  of 
larceny  and  embezzlement  is  alike.  Com.  v. 
Butterick,  100  Mass.  1. 

54.  Presujnptions.  Evidence  of  other 
acts  of  embezzlement  by  the  defendant  than 
that  charged  in  the  indictment  is  admissible 
on  the  qaestion  of  guilty  intent.  Com.  v. 
Shepard,  1  Allen,  575 ;  Com.  v.  Tuckerman, 
10  Gray,  173. 

55.  The  agent  of  an  express  company,  to 
whom  money  was  intrusted  to  be  delivered 
by  him  to  consignees,  stated  that  the  money 
was  stolen  from  him  on  the  way.  Held  that 
in  the  absence  of  any  reasonable  account 
given  by  him  of  the  occurrence,  he  might  be 
convicted  of  embezzlement.  Riley  v.  State, 
32  Texas,  763. 

56.  Employer  as  witness.  On  a  trial  for 
embezzlement  alleged  to  have  been  com- 
mitted by  a  servant  or  agent,  the  employer 
is  a  competent  witness  to  show  that  he  did 
not  authorize  the  accused  to  do  the  acts 
complained  of,  and  that  the  accused  has  not 
accounted  to  him  for  the  property.  Coats 
v.  People,  4  Parker,  602. 

5.  Verdict. 

57.  Against  several.  Where  several  are 
charged  witii  feloniously  receiving  em- 
bezzled goods,  knowing  them  to  have  been 
embezzled,  all  who  are  proved  to  have  been 


confederates  in  the  transaction  may  be 
found  guilty,  though  the  receiving  was  at 
different  times  and  places,  and  though  all 
were  not  present.  People  v.  Stein,  1  Parker, 
202. 

58.  Effect.  Where  an  indictment  con- 
tains counts  for  embezzlement  and  larceny, 
and  the  prisoner  is  tried  for  both  oifenses, 
finding  the  prisoner  guilty  of  embezzlement 
is  equivalent  to  a  verdict  of  not  guilty  of 
the  larceny  charged.  Guenther  v.  People,^ 
24  N.  Y.  100. 

59.  For  other  offense.  Under  an  indict- 
ment for  embezzlement,  there  cannot  be  a 
conviction  of  a  breach  of  trust.  State  v. 
Reonnals,  14  La.  An.  278. 


<!:mbraccru. 


At  common  law.  There  is  no  such  crime 
at  common  law  as  an  attempt  to  commit 
embracery.     State  v.  Sales,  2  Nev.  268. 


Enlistment. 


Indictment.  In  Vermont,  an  indictment 
for  a  violation  of  the  statute  (R.  S.  ch. 
119,  §  29)  in  relation  to  the  enlistment  of 
men  within  the  State  for  military  service 
without  the  State,  alleged  that  the  defend- 
ant, "of  Fairfax,  in  the  county  of,"  &c., 
''on,"  &c.,  "  at  Fairfax,"  &c.,  "without  due 
authority  from  this  State  or  the  United 
States,  did  enlist,"  &c.,  "one  Edward  Or- 
ton,  of  Fairfax  aforesaid,  a  person  in  this 
State,"  &c.  Held  that  it  was  alleged  with 
sufficient  certainty  that  the  person  enlisted 
was  in  the  State  at  the  time  of  enlistment. 
State  V.  Cook,  38  Vt.  437. 


^Crror. 


See  Writ  of  error. 


1.  At  common  law.     A  person  who   es- 


124 


ESCAPE. 


What  is. 


What  does  not  Amount  to  Aiding. 


capes  from  lawful  custody,  though  he  use 
no  force  or  violence,  is  amenable  to  punish- 
ment at  common  law.  Com.  v.  Farrell,  5 
Allen,  130. 

2.  What  is.  If  a  sheriff  discharges  the 
duties  of  his  oflBce  so  negligently  that  in 
consequence  of  such  negligence,  a  prisoner 
leaves  the  jail  and  walks  out  into  the  sur- 
rounding town,  even  for  a  few  minutes  only, 
this  constitutes  an  escape,  though  it  be 
proved  that  the  prisoner  actually  returned. 
Nail  V.  State,  34  Ala.  263. 

3.  It  is  no  justification  for  breaking  pris- 
on to  effect  an  escape  that  the  commitment 
was  irregular.  State  v.  Murray,  15  Maine, 
100. 

4.  Where  a  person  confined  in  jail  went 
by  direction  of  the  jailer  to  market  for  the 
jail,  cooked  food  for  the  prisoners  in  the 
kitchen  of  the  dwelling-house  attached  to 
the  jail,  went  to  the  adjacent  barn  and 
there  fed  and  milked  the  cow,  and  thence, 
without  the  knowledge  of  the  jailer,  ran 
away  and  left  the  State,  it  was  held  that  the 
conduct  of  the  jailer  did  not  excuse  the 
escape.     VAlej  v.  State,  16  Conn.  47. 

5.  Who  not  liable.  An  indictment  for  a 
negligent  escape  cannot  be  sustained  against 
a  mere  servant  of  the  officer  upon  whom  the 
law  imposes  the  obligation  of  safe  custody. 
State  V.  Errickson,  3  Vroom  (32  K  J.)  421. 

6.  In  Massachusetts,  the  statute  (R.  S.  ch. 
143,  §  21)  punishing  persons  who  forcibly 
break  prison  with  intent  to  escape,  or  by 
force  or  violence  attempt  to  escape  there- 
from, although  no  escape  be  efl'ected,  does 
not  refer  to  persons  who  are  held  in  custody 
for  trial  or  for  not  obtaining  bail  for  appear- 
ance, but  only  to  those  who  are  sentenced 
to  a  term  of  imprisonment  as  a  punishment. 
Com.  V.  Homer,  5  Mete.  555.  See  Com.  v. 
Briggs,  lb.  559. 

7.  Aiding.  Informality  in  the  complaint 
and  in  the  sentence  as  orally  announced,  but 
under  which  no  commitment  has  taken 
place,  is  no  justification  for  aiding  the  pris- 
oner to  escape  from  the  custody  of  the  offi- 
cer.    Com.  v.  Morihan,  4  Allen,  585. 

8.  On  the  trial  of  an  indictment  for  aid- 
ing the  prisoner  to  escape  when  held  under 
a  warrant,  it  is  no  defense  that  the  prisoner 


was  not  in  fact  guilty  of  the  offense  with 
which  he  was  charged.  State  v.  Bates,  23 
Iowa,  96. 

9.  Any  assistance  given  to  one  known  to 
be  a  felon,  in  order  to  hinder  his  apprehen- 
sion, trial  or  punishment,  or  aiding  him  to 
escape,  will  make  a  person  an  accessory 
after  the  fact.  But  merely  suffering  the 
felon  to  escape,  or  agreeing  for  money  not 
to  prosecute  him,  or  failing  to  make  known 
the  felony,  will  not  make  the  party  an  ac- 
cessory after  the  fact.  Wren  v.  Com.  26 
Graft.  952. 

10.  Until  the  oflense  has  been  consum- 
mated, any  aid  or  assistance  rendered  to  a 
party  in  order  to  enable  him  to  escape,  will 
not  make  the  person  affording  such  assist- 
ance guilty  as  an  accessory  after  the  fact. 
Harrol  v.  State,  89  Miss.  702. 

11.  What  does  not  amount  to  aiding. 
It  is  not  a  violation  of  the  statute  of  Arkan- 
sas (R.  S.  ch.  44,  §  7),  which  forbids  the 
conveying  to  any  person  lawfully  impris- 
oned, any  instrument,  arms  or  other  thing 
calculated  to  aid  his  escape,  for  a  person  to 
convey  to  a  prisoner  a  written  communica- 
tion informing  him  that  he  has  a  friend  and 
can  be  released  from  confinement.  Hughes 
V.  State,  1  Eng.  1^2. 

12.  When  the  prisoner  is  out  on  bail,  the 
finding  of  a  verdict  of  guilty  does  not  ipso 
fact-)  place  him  in  the  custody  of  the  sheriff; 
and  therefore  one  who  aids  his  escape  is 
not  liable  to  prosecution.  Redman  v.  State, 
28  Ind.  205. 

13.  When  a  person  charged  with  crime 
is  out  on  bail,  and  his  sureties,  with  his 
consent,  surrender  him  to  the  sherifi',  taking 
the  latter's  receipt  therefor,  the  sheriff,  if  he 
have  no  copy  of  the  recognizance,  has  not 
lawful  custody  of  him,  and  a  person  who 
assists  him  to  escape  is  not  guilty  of  felony. 
State  V.  Beebe,  13  Kansas,  589. 

14.  Indictment.  An  indictment  which 
charges  an  intent  to  break  open  the  jail  to 
libei'ate  A.,  confined  therein,  to  effect  his 
escape,  sufficiently  alleges  an  intent  to  aid 
his  escape.  State  v.  Abbott,  16  New  Hamp. 
507. 

15.  An  indictment  which  alleges  that  the 
defendant  "  willfully  and  negligently  "  per- 


ESCAPE.— ESTRAY. 


125 


Evidence. 


Taking  up. 


nutted  an  escape,  is  bad  for  duplicity.  State 
V.  Dorsett,  21  Texas,  656. 

16.  It  is  not  a  good  objection  to  an  in- 
dictment for  an  escape  that  the  defendant, 
who  was  not  regularly  appointed  and  qual- 
ified as  a  constable,  but  had  assumed  to  act 
as  such,  was  charged  therein  with  negli- 
gence as  a  lawful  constable.  State  v.  May- 
berry,  3  Strobh.  144.  x^ 

V7.  Evidence.  Under  an  indictment 
against  a  sheriflf  for  negligent  escape,  a  con- 
viction may  be  had  on  proof  of  a  voluntary 
escape.  Nail  v.  State,  34  Ala.  262.  Doubt- 
ed in  Kavauaugh  v.  State,  41  Ala.  399. 

18.  On  the  trial  for  an  escape  from  the 
penitentiary,  the  original  conviction  and 
sentence  to  the  prison  may  be  proved  by  a 
transcript  of  the  judgment  without  the  in- 
dictment, it  appearing  from  the  record  that 
the  prisoner  was  sentenced  for  the  crime  al- 
leged in  the  indictment  for  the  escape. 
Sandford  v.  State,  6  Eng.  328. 

19.  Where  an  indictment  for  escape  al- 
leges that  the  prisoner  was  convicted  of  lar- 
ceny, sentenced  to  the  penitentiary  and  es- 
caped therefrom,  the  fact  that  he  was  the 
same  person  that  had  been  convicted  of 
larceny  is  material,  and  by  pleading  not 
guilty  he  does  not  admit  it.  But  circum- 
stantial evidence  of  identity  will  be  suffi- 
cient.    State  V.  ]\rurphy,  5  Eng.  74. 

20.  In  Massachusetts,  under  an  indictment 
for  an  escape  from  the  house  of  correction, 
the  whole  yard  of  the  house,  though  divided 
by  a  public  street  against  which  it  is  fenced, 
is  deemed  to  be  adjoining  or  appurtenant, 
within  the  statute  (Gen.  Stats,  ch.  178,  §§  6, 
7j.     Com.  V.  Curley,  101  Mass.  24. 

21.  Effect  on  rights  of  defendant.  Where 
a  person  an  trial  for  felony  escapes  as  the 
jury  are  in  the  act  of  bringing  in  their  ver- 
dict, the  jury  should  be  discharged,  and  the 
prisoner  when  re-arrested  be  put  on  trial  be- 
fore another  jury.  Andrews  v.  State,  2 
Sneed,  550. 

22.  Legal  proceedings  will  not  be  allowed 
to  be  taken  in  behalf  of  a  prisoner  when  he 
is  no  longer  in  custody  or  out  on  bail,  but 
has  fled  from  the  custody  of  the  law.  People 
V.  Genet,  59  N.  Y.  80.  So  far  as  the  de- 
fendant has  any  right  to  be  heard  after  con- 


viction, he  must  be  deemed  to  have  waived 
it  by  escaping  from  custody  and  failing  to 
appear  and  prosecute  his  exceptions  in  per- 
son.    Com.  V.  Andrews,  97  Mass.  543. 

23.  Where  it  appears  that  the  defendant 
since  his  conviction  has  escaped,  the  court 
will  direct  that  so  much  of  the  order  award- 
ing the  writ  of  error  as  operates  as  a  super- 
sedeas to  the  judgment  be  discharged,  and 
that  the  writ  of  error  be  dismissed,  unless  by 
a  certain  day,  the  defendant  is  in  custody. 
Sherman  v.  Com.  14  Graft.  677. 

24.  Although  where  a  prisoner  after  con- 
viction escapes  and  remains  a  fugitive  he  can- 
not require  at  the  hands  of  the  courts  any  pro- 
ceedings in  his  favor,  or  insist  upon  any  steps 
adverse  to  the  prosecution,  yet  he  cannot  be 
deprived  of  the  benefit  of  proceedings  al- 
ready taken  before  his  escape.  Sharkey  v. 
People,  3  N.  Y.  Supm.  N.  S.  739;  8  lb.  300. 

25.  A  convict  may  be  returned  to  the  State 
prison  from  which  he  has  escaped,  after  the 
expiration  of  the  time  for  which  he  was  im- 
prisoned, upon  information  or  suggestion 
and  trial,  as  to  his  identity  and  escape,  in 
the  court  which  sentenced  him.  In  New 
York,  a  Court  of  Sessions  has  jurisdiction  of 
such  a  case.  Haggerty  v.  People,  6  Lans. 
347.  A  person  having  been  convicted  of 
robbery,  and  sentenced  to  the  State  prison, 
escaped  therefrom,  and  after  the  expiration 
of  the  time  for  which  he  was  sentenced,  com- 
mitted a  burglary.  The  court  in  which  he 
was  tried  and  convicted  for  the  robbery 
directed  his  return  to  the  State  prison  for  a 
time  equal  to  the  remainder  of  his  term  un- 
served, and  he  was  then  put  upon  trial  for 
the  burglary,  convicted  and  sentenced  there- 
for, the  second  term  to  commence  at  the  ex- 
piration of  the  first.     Held  proper.     lb. 


<£5trai3. 


1.  Taking  up.  It  is  an  indictable  offense 
to  take  up  and  use  an  estray  without  first 
having  complied  with  the  requirements  of 
the  law  in  relation  thereto.  State  v.  Armon- 
trout,  21  Texas,  472. 

2.  Indictment.  An  indictment  for  taking 
up  and  using  an  estray,  need  not  state  the 


12G 


ESTEAY.— EVIDENCE. 


Indictment. 


In  General. 


age,   color,    sex,   oi*  brand  of   the  animal. 
State  V.  Christ,  33  Texas,  99. 

3.  An  indictment  for  taking  up  and  using 
an  estray  belonging  to  A.  B.  is  good,  the 
fact  that  the  owner  of  the  animal  had  been 
discovered  and  was  known  when  the  indict- 
ment was  found,  being  no  proof  that  it  was 
not  an  estray  when  taken  up.  State  v. 
Fletcher,  35  Texas,  740.  And  an  animal 
may  be  an  estray  although  the  owner  is 
known,  provided  the  animal  was  a  great 
distance  out  of  its  usual  range.  State  v. 
Apel,  14  lb.  431. 


^uibcucc. 


9. 
10. 
11. 
12. 
13. 
14. 
lo. 

16. 
17. 


In  gexeral. 

Amouxt  of  proof  required  to  convi  ct. 

Burden  of  proof. 

Documentary  EvroENCE. 

Written  instrujients  how  proved. 

Proof  of  testimony  given  on  former 

trial. 
Admissions  and  declarations. 
Confessions. 

Privileged  communications. 
Character. 

Presumptive  evidence. 
Proof  of  other  offense. 
Testimony  op  accomplice. 
Testimony  op  experts. 
Opinions  of  witnesses  who  abe  not 

experts. 
Proof  op  alibi. 
Evidence    to    discredit    or    sustain 

witness. 


1.  In  general. 

1.  When  material  must  be  received. 
Although  evidence  which  it  is  probable  may 
be  ruled  out  should  not,  if  possible,  be  heard 
by  or  be  discussed  before  the  jury,  Carter 
V.  State,  37  Texas,  362 ;  yet  competent  evi- 
dence cannot  be  rejected  on  the  ground  that 
it  is  inconclusive,  or  of  little  weight.  Marx 
V.  People,  63  Barb.  618. 

2.  The  law  does  not  favor  estoppels  ;  and 
a  party  cannot  be  precluded  from  giving 
evidence  touching  matters  directly  or  collat- 
erally involved  in  the  issue,  unless  it  appear 


with  certainty  that  such  matters  have  been 
determined  against  him  by  competent  judi- 
cial authority.  People  v.  Frank,  28  Cal. 
507. 

3.  Must  be  derived  from  facts  proved. 
Circumstantial  evidence  consists  in  rea- 
soning from  facts  which  are  known  or 
proved,  to  establish  such  as  are  conjectured 
to  exist.  But  the  process  is  fatally  defect- 
ive, if  the  circumstances  themselves  from 
which  it  is  sought  to  deduce  the  conclusion, 
depend  upon  conjecture.  People  v.  Ken- 
nedy, 33  N.  Y.  141. 

4.  The  evidence  cannot  be  helped  out  by 
the  jury,  by  taking  notice  from  their  own 
knowledge,  that  as  early  as  nine  o'clock  of 
the  night,  the  part  of  the  street  where  the 
offense  was  committed,  was  more  likely  to 
be  deserted  than  any  other  part  of  the  city; 
and  where  the  judge  so  charged,  it  was  held 
error.  Lenaban  v.  Peojjle,  5  N.  Y.  Supm. 
N.  S.  265. 

5.  Where  motive  is  material,  it  cannot  be 
imagined;  but  the  facts  from  which  it  may 
be  inferred  must  be  proved.  People  v. 
Bennett,  49  N.  Y.  137. 

6.  Eleven  of  the  jurors  who  sat  on  the 
trial  of  a  complaint  for  selling  intoxicating 
liquors  in  violation  of  law,  had  tried  other 
similar  cases  at  the  same  term,  in  which  law 
books  and  the  constitution  of  the  State  had 
had  been  read  and  commented  on  by  coun- 
sel without  objection.  The  court  charged 
them  "  that  they  had  the  right  to  bring  to 
their  aid  all  the  information  they  had  de- 
rived from  any  sources  equally  open  to  the 
observation  of  all,  but  that  any  particular 
information  which  had  been  communicated 
to  portions  of  the  jury  from  sources  equally 
open  to  the  use  of  all,  they  could  not  em- 
ploy as  evidence  in  the  case ;  that  they  were 
to  decide  the  case  according  to  the  evidence 
introduced  into  it,  and  not  on  evidence  of 
the  law  or  facts  introduced  in  other  cases; 
that  the  instruction  of  the  court  was  the 
only  evidence  of  the  law  in  the  case,  and 
they  were  bound  so  to  consider  it.  Held- 
proper.     Com.  v.  Lawrence,  9  Gray,  133. 

7.  On  a  trial  for  passing  a  counterfeit 
bank  bill,  a  witness  testified  without  objec- 
tion, that  after  the  prisoner  and  his  com- 


EVIDENCE. 


127 


In  General. 


panion  had  been  taken  to  the  station  house, 
a  boy  brought  in  a  roll  of  counterfeit  bills 
which  he  said  the  prisoner's  companion  had 
thrown  down  in  the  street  after  their  ^rrest 
Held  that  although  the  hearsay  evidence  of 
the  boy  was  given  without  objection,  yet  the 
admission  of  the  colmterfeit  bills  in  evi- 
dence was  error.  Cantor  v.  Peo2:)le,  5 
Parker,  217. 

8.  Must  be  responsive  to  the  issue. 
Where  irrelevant  testimony  itui^lculated  to 
mislead  or  prejudice  the  minds  of  the  jury, 
it  is  error  to  receive  it.  State  v.  Arnold,  13 
Ired.  184.  On  a  trial  for  murder,  the  prose- 
cution having  offered  the  reputed  wife  of 
the  defendant  as  a  witness,  and  proved  a 
marriage  in  fact,  proposed  to  introduce  evi- 
dence to  show  that  the  marriage  was  void, 
so  as  to  make  the  alleged  wife  a  competent 
wntness  against  the  defendant — Held  that 
as  the  marriage  was  not  in  issue,  and  the 
pleadings  did  not  give  the  defendant  notice 
that  such  a  question  was  to  be  tried,  the 
evidence  was  not  admissible.  Dixon  v.  Peo- 
ple, 18  Mich.  84. 

9.  On  an  indictment  against  A.  for  the 
willful  burning  of  the  barn  of  P.,  evidence 
was  given  implicating  S.  To  show  malice 
on  the  part  of  S.  toward  P.,  the  latter  had 
been  asked  by  the  prosecution  whether 
some  time  before  the  fire,  S.  had  instituted 
a  criminal  prosecution  against  him,  from 
which  he  was  discharged.  Having  an- 
swered in  the  affirmative,   an  offer  by  the 


Held   proper.     Com.    v.  Vaughan,  9    Cush. 
594. 

10.  On  a  joint  indictment  against  two, 
proof  that  the  offense  was  committed  sever- 
ally will  not  sustain  a  conviction  of  either 
or  both.  Johnson  v.  State,  44  Ala.  414. 
And  where  the  circumstances  proved,  impli- 
cate two  persons  equally,  but  who  are  in  no 
way  connected  in  committing  the  crime, 
neither  can  be  convicted.  Kirby  v.  State,  3 
Humph.  289.  And  see  Stephens  v.  State, 
14  Ohio,  386. 

11.  Name  of  defendant.  It  may  be 
proved  on  the  trial,  that  the  prisoner  was 
knoAvn  by  tke  name   mentioned  in  the  in- 


dictment, and  also  by  another  name,  notwith- 
standing the  indictment  does  not  allege  that 
he  w^as  known  by  both  names.  Johnson  v. 
State,  46  Ga.  269. 

12.  Whether  a  person  is  as  well  known  by 
one  name  as  another,  is  a  question  of  repu- 
tation, custom,  and  usage,  and  not  to  be 
determined  by  records,  or  limited  to  names 
used  in  the  person's  presence.  Com.  v.  Gale, 
11  Gray,  320.  The  defendant  being  indicted 
for  larceny,  pleaded  misnomer  in  abatement. 
Issue  was  joined  on  the  replication  that  he 
was  known  as  well  by  the  name  in  the 
indictment  as  by  that  in  the  plea.  The 
judge  after  stating  to  the  jury  the  question 
for  them  to  decide,  gave  them  the  fol- 
lowing illustration:  "If  a  stranger  should 
go  where  the  defendant  is  known  and  in- 
quire for  his  house,  would  those  of  whom 
he  inquired,  recognize  the  man  inquired  for 
as  well  by  one  name  as  the  other?  "  Held 
proper.     State  v.  Dresser,  54  Maine.  569. 

13.  Upon  the  issue  raised  by  a  plea  in 
abatement  as  to  whether  the  defendant  was 
indicted  by  the  right  name,  the  fact  that  to 
a  former  indictment  by  the  same  name 
she  answered  upon  her  arraignment,  and 
pleaded  not  guilty,  is  proper  for  the  consid- 
eration of  the  jury.  State  v.  Homer,  40 
Maine,  438. 

14.  If  a  person  is  in  the  habit  of  using 
initials  for  his  christian  name,  and  is  in- 
dicted by  these  initials,  the  fact  whether  he 
is  so  known  may  be  put  in  issue;  and  if  the 


defense  to  show  that  such  prosecution  was    .         .  ,         •     ^  ,  ■      -.  i_ 

.       J    ,  ,    ,,  '  .     ,   »._  issue  IS  proved  against  aim,  he  may  be  con 

founded  on  probable   cause,  was   reiected.      .       ,    V,^.  „,   ,      ,„  .,      o-n 

'  .     „    --^  victed.     Diggs  V.  State,  49  Ala.  311. 


15.  Name  of  person  injured.  Where  it  is 
alleged  in  the  indictment  that  the  name  of 
the  person  injured  is  unknown  to  the  grand 
jury,  the  proof  must  correspond  to  the  alle-j 
gation;  and  if  there  be  no  proof  on  the 
subject,  the  defendant  cannot  be  convicted. 
Stone  V.  State,  30  Ind.  115.  But  see  State 
V.  Wilson,  30  Conn.  500. 

16.  An  indictment  charged  the  prisoner 
with  defrauding  John  J.  Robinson.  The  evi- 
dence was  that  the  name  was  spelt  Robison.  J 
The  court  charged  the  jury  that  it  was  for 
them  to  determine  whether  the  names  had 
the  same  sound,  and  if  the  sound  was  not 


128 


EVIDENCE. 


In  General. 


the  same  it  would  be  their  duty  to  acquit. 
Jkld  correct.  People  v.  Cooke,  6  Parker,  31. 

17.  Where  an  indictment  alleged  the  name 
of  the  deceased  to  be  Louis  Boudet,  or 
JBoredet,  while  his  real  name  was  proved  to 
be  Louis  Burdct,  and  to  be  sometimes  pro- 
nounced as  if  spelt  Bouredet,  it  was  held 
that  if  his  real  name  was  the  same  in  sound 
as  if  written  Boudet  or  Boredet,  or  so  nearly 
the  same  that  the  difference  would  be 
scarcely  perceptible,  the  variance  was  im- 
material.    Aaron  v.  State,  37  Ala.  103. 

18.  An  indictment  for  murder  charged  that 
deadly  and  mortal  brui&es  were  inflicted  on 
Augustine^  and  that  "  of  the  said  mortaj 
bruises  and  wounds  the  said  Augustina 
died."  Held,  not  bad  after  verdict.  Coin. 
V.  Desmartean,  16  Gray,  1. 

19.  An  indictment  for  an  assault  with  a 
deadly  weapon  charged  the  name  of  the  per- 
son assaulted  as  '■'■  Mary  Banner.''''  On  the 
trial  it  was  proved  that  her  name  was 
*■'  Bannahery  Held.^  that  the  variance  was 
immaterial.  Gahan  v.  People,  58  111.  160; 
s.  c.  1  Green's  Crim.  Reps.  704. 

20.  Middle  letter  of  name.     The  middle 
I  letter  has  been  held  no  part  of  the  name. 

Therefore,  where  the  indictment  charged 
that  a  robbery  was  committed  on  I.  R.  R., 
and  it  was  proved  that  it  was  committed  on 
I.  B.  R.,  it  was  held  that  there  was  no  vari- 
ance. Miller  ^.  People,  39  111.  457.  But 
an  indictment  which  charged  the  defendant 
as  O.  Alonzo  Rockwell  was  held  not  sus- 
tained by  proof  that  the  defendant  usually 
signed  his  name  O.  A.  Rockwell,  and  was 
generally  called  O.  A.  Rock^vell,  that  some 
of  his  relatives  called  him  Alonzo,  and  that 
O.  A.  were  the  initials  of  his  name.  Rock- 
well V.  State,  13  Ohio,  N.  S.  427. 

21.  Proof  of  identity  of  prisoner.  When 
the  identity  of  the  prisoner  is  an  important 
inquiry,  it  is  competent  to  show  the  ac- 
quaintance and  familiarity  of  the  witness 
with  him,  and  the  witness  may  be  asked 
where  the  acquaintance  was,  and  what  was 
his  own  business.  State  v.  Bartlett,  55 
Maine,  200. 

J  22.  The  question  as  to  what  is  idemsonans 
'is  for  the  jury,  and  not  the  court.     Taylor 


V.  Com.  20  Gratt.  825.  The  defendant  has 
a  right  to  submit  to  the  jury  as  a  question 
of  fact  whether  the  name  proved  is  idem 
sonans  with  that  laid  in  the  indictment,  and 
by  omitting  to  do  so  he  waives  all  claim  to 
insist  on  the  objection.  Com.  v.  Gill,  14 
Gray,  400. 

23.  The  court  instructed  the  jui-y  thus: 
"If  Geo.  W.  Bell  is  the  name  of  the  de- 
fendant, his  wife  is  correctly  named  and 
described  when  called  Mrs.  Geo.  W.  Bell." 
Held  error,  in  deciding  what  was  the  name 
of  the  defendant's  wife  as  matter  of  law, 
instead  of  leaving  it  to  be  determined  by  the 
jury.     Bell  v.  State,  25  Texas,  574. 

24.  Immaterial  averments  need  not  be 
proved.  Although  the  general  rule  is  that 
all  descriptive  averments  in  an  indictment  i 
must  be  proved  as  laid,  yet  when  an  aver- 
ment may  be  omitted  without  afiecting  the 
charge  against  the  prisoner,  and.  without 
detriment  to  the  indictment,  it  may  be  dis- 
regarded in  evidence.  Where  an  indictment 
for  perjury  committed  in  testifying  in  an 
action  in  favor  of  J.  B.  against  the  trustees 
of  the  "  Colebrook  "  Academy,  subsequently 
emj)loyed  the  words  "  Colebath  Academy 
aforesaid, "  it  was  held  that  the  word  Cole- 
hutli  might  be  rejected  as  surplusage.  State 
V.  Bailey,  31  New  Hamp.  521. 

25.  Where  an  indictment  charged  the  de- 
fendant with  willfully  and  falsely  marking 
sixty  sacks  of  flour  with  a  certain  brand, 


with  intent  to  defraud  S.  and  W.,  and  that 


he  then  sold  and  delivered  them  to  S.  and 
W.,  it  was  held  sutiicient  to  prove  that  the 
defendant  falsely  marked  such  sacks,  or  any 
of  them,  with  intent  to  defraud,  and  that 
the  prosecution  need  not  prove  that  the  same 
were  sold  and  delivered  to  S.  and  W.  State 
V.  Burge,  7  Iowa,  255. 

26.  Timjg  not  material.  It  is  not  neces- 
sary to  prove  the  precise  day  on  which  the 
crime  was  committed.  Com.  v.  Dacey,  107 
Mass.  206.  The  evidence  may  extend  back 
to  any  period  previous  to  the  finding  of  the 
indictment  within  the  statutory  limits  for 
prosecuting  the  ofiense.  McBryde  v.  State, 
34  Ga.  202.  Whether  in  the  computation 
of  time,  the  day  on  which  an  act  is  done  is 
to  be  included  or  excluded,    will   depend 


"y 


EVIDENCE. 


129 


In  General. 


Amount  of  Proof  Required  to  Convict. 


upon  the  circumstances.     State  v.  Asbury, 
26  Texas,  82. 

27.  Place.  It  is  erroneous  to  instruct  the 
jury  that  they  may  find  the  defendant  guilty 
without  proof  that  the  offense  was  com- 
mitted iu  the  county  in  which  the  indict- 
ment was  found,  and  within  the  time  pre- 
scribed by  the  statute  of  limitations.  Hughes 
V.  State,  35  Ala.  351 ;  Green  v.  State,  41  lb. 
419.  Where  the  evidence  on  a  trial  for 
grand  larceny  conduced  to  show  that  the 
ofi'ense  was  committed  at  a  drinking  saloon, 
but  there  was  nothing  in  the  record  which 
tended  to  prove  that  the  saloon  was  in  the 
county,  it  was  held  that  there  must  be  a 
new  trial.  People  v.  Parks,  44  Cal.  105 ;  s. 
c.  2  Green's  Crim.  Reps.  398. 

2.  Amount  of  proof  required  to  convict. 

28.  Must  satisfy  the  jury  beyond  a 
reasonable  doubt.  The  legal  test  of  the 
sufficiency  of  evidence  to  authorize  a  con- 
viction is  not  that  it  excludes  every  possi- 
bility that  another  person,  and  not  the  ac- 
cused, may  have  committed  the  crime,  but 
its  adequacy  to  satisfy  the  understanding 
and  conscience  of  a  jury,  and  to  exclude 
from  their  minds  all  reasonable  doubt  of 
the  guilt  of  the  accused.  Murphy  v.  People, 
6  N.  Y.  Supm.  N.  S.  369  ;  Chisholm  v.  State, 
45  Ala.  66.  But  it  ought  not  only  to  be 
consistent  with  the  prisoner's  guilt,  but  in- 
consistent with  any  other  rational  con- 
clusion. Stephens  v.  People,  4  Parker,  896; 
19  N.  Y.  549 ;  People  v.  Bennett,  49  N.  Y. 
137;  Williams  v.  State,  41  Texas,  209: 
Barnes  v.  State,  lb.  342 ;  Carter  v.  State,  46 
Ga.  637;  Algheri  v.  State,  25  Miss.  584; 
Sumner  v.  State,  5  Blackf.  579 ;  People  v. 
Murray,  41  Cal.  66  ;  U.  S.  v.  Douglass,  2 
Blatchf.  207. 

29.  The  following  instruction  was  held 
erroneous:  In  order  to  convict,  "the  jury 
should  be  satisfied  as  reasonable  men,  so 
that  they  would  be  willing  to  act  upon  it  as 
in  matters  of  great  importance  to  them- 
selves ;"  the  rule  requiring  that  they  should 
be  satisfied  to  the  extent  they  would  be  in 
matters  of  the  highest  concern  and  impor- 
tance.    State  V.  Dineen,  10  Minn.  407  ;  B.  p. 

9 


State  V.  Shettleworth,   18  lb.  208 ;  Bradley 
V.  State,  31  Ind.  492. 

30.  To  warrant  a  conviction  upon  proof 
of  circumstances  which  are  inconclusive, 
they  must  be  so  multiplied  as  to  increase 
the  probability  to  an  indefinite  extent  be- 
yond mere  calculation.  But  before  the  ap- 
pellate court  can  determine  that  the  court 
below  erred  in  refusing  a  charge  which  as- 
serted the  principle  generally,  the  record 
must  show  that  the  evidence  was  confined 
to  facts  entu-ely  inconclusive.  The  correct 
rule  is  not  whether  the  circumstances  proved 
produce  as  full  conviction  as  the  positive 
testimony  of  a  single  credible  witness,  but 
whether  they  produce  moral  conviction  to^ 
the  exclusion  of  every  reasonable  doubt. 
Mickle  V.  State,  27  Ala.  20.  Where  there  is 
prima  facie  proof  of  the  defendant's  guilt, 
and  no  rebutting  testimony,  it  is  not  er- 
roneous to  refuse  to  charge  the  jury  that 
the  testimony  offered  by  the  prosecution  is 
not  conclusive  evidence  of  guilt.  Swallow 
V.  State,  22  Ala.  20. 

31.  Meaning  of  reasonable  doubt.  Proof 
"beyond  a  reasonable  doubt "'  is  not  beyond 
all  possible  or  imaginary   doubt,  but   such 
proof  as  precludes  every   reasonable  hypo- 
thesis except  that  which  it  tends  to  support. 
It  is  proof  "to  a  moral  certainty,''  as  dis- 
tinguished from  an  absolute  certainty.  Com. 
V.  Costley,  118  Mass.  l,per  Gray,  Ch.  J.  The 
following  instruction  was  held  proper"}  ''By  <; 
reasonable  doubt,  is  ordinarily  meant  such  a  I 
one  as  would  govern  or  control  you  in  your    ' 
business  transactions  or  the  usual  pursuits  of 
life.  "7  State  v.  Millain,  3  Nev.  409. 

32.  The  following  instruction  was  held 
proper :  ''  Jurors  have  sometimes  said  after 
the  acquittal  of  a  prisoner,  that  they  were 
satisfied  of  his  guilt,  and  had  no  doubt  of  j 
it,  but  did  not  think  there  was  sufficient 
evidence  to  warrant  a  conviction.  This  is 
wrong;  for  if  a  juror  goes  into  the  trial   of 

a  case  with  his  mind  unprejudiced,  and 
knowing  nothing  of  the  facts,  and  becomes 
satisfied  without  doubt  from  the  testimony- 
offered,  that  the  prisoner  is  guilty,  there  can 
be  no  reasonable  doubt  in  his  mind."  State 
V.  James,  37  Conn.  355. 

33.  Positive  negation  equal  to  affirma- 


130 


EVIDENCE. 


Amount  of  Proof  Required  to  Convict.     Burden  of  Proof.     Documentary  Evidence. 


tion.  Wliere  a  trustworthy  witness  swcais 
positively  that  the  defendant  did  not  strike 
the  blow,  it  is  not  negative  evidence,  but 
entitled  to  equal  weight  with  the  testimony 
of  a  witness  who  swears  that  he  did  do  so. 
Coughlin  V.  People,  18  111.  266. 

34.  Testimony  partly  false.  It  is  not 
an  inlk'xible  rule,  that  when  a  witne-s  has 
sworn  falsely,  his  testimony  is  to  be  dis- 
regarded except  in  those  particulars  in 
which  it  is  corroborated.  Com.  v.  Billings, 
97  Mass.  405;  State  v.  Williams,  2  Jones, 
257;  State  v.  Smith,  8  lb.  133;  State  v. 
Brantly,  63  N.  C.  518.  .  But  in  Tennessee, 
it  has  been  held  that  where  evidence  pro- 
posed contains  an  admixture  of  illegal 
matter,  the  court  may  disallow  the  whole. 
Harman  v.  State,  3  Head,  243;  and  in  Ohio, 
that  where  a  witness  is  proved  to  have 
committed  perjury,  his  evidence  must  be 
wholly  rejected.  Stofler  v.  State,  15  Ohio, 
N.  S.  47. 

3.  Burden  o?  proof. 
35.  On  prosecution.  Where  the  court 
charged  the  jury,  that  when  the  prosecution 
had  made  out  o,  2)Tima  facie  case,  the  burden 
of  proof  was  on  the  defendant  to  restore 
him  to  that  presumption  of  innocence  in 
which  he  was  at  the  commencement  of  the 
trial,  it  was  held  that  the  instruction  was 
erroneous,  that  the  jury  should  have  been 
told  that  the  burden  was  on  the  common- 
wealth to  establish  the  guilt  of  the  defend- 
ant, and  that  he  was  to  be  presumed  in 
nocent,  unless  the  whole  evidence  in  the 
case  satisfied  them  of  his  guilt.  Com.  v. 
Kimball,  24  Pick.  366.  See  Ogletree  v.  State, 
28  Ala.  693. 

36.  When  an  indictment  charges  that  the 
y  defendant  kept  a  ferry  without  license,  the 

burden  of  proof  is  on  the  prosecution  to 
show  that  the  defendant  had  no  license. 
Territory  v.  Reyburn,  McCahon's  Kansas, 
134;  contra.  Wheat  v.  State,  6  Mo.  455. 

37.  On  tb.e  defense.  When  the  matter 
of  defense  is  wholly  disconnected  from  the 
body  of  the  crime  charged,  the  burden  of 
proof  rests  upon  the  accused.  State  v. 
Murphy,  33  Ind.  270 ;  and  where  the  subject- 
matter  of  a  negative  averment  relates  to  the 


defendant  personally,  or  is  peculiarly  within 
his  knowledge,  the  averment  will  be  taken 
as  true,  unless  disproved  by  him.  State  v. 
McGlynn,  34  New  Hamp.  432. 

38.  Whsre  it  is  proved  that  there  was  a 
conspiracy  to  commit  murder,  and  that  one 
of  the  conspirators  was  in  a  situation  in 
which  he  might  have  given  aid  to  the 
perpetrator  of  the  homicide,  the  burden  is 
on  him  to  rebut  the  presumption  by  showing 
that  he  was  there  for  a  different  purpose. 
Com.  V.  Kuapp,  9  Pick.  496. 

39.  Where  a  miller,  who  had  received 
barilla  to  grind,  was  charged  with  fraudu- 
lently retaining  part  of  it,  and  returning 
a  mixture  of  barilla  and  plaster  of  paris, 
it  was  held  that  the  prosecution  was  not 
bound  to  produce  the  cartman  who  carried 
the  barilla  to  and  from  the  mill,  to  prove 
that  it  was  not  adulterated  in  the  trana- 
portation,  although  there  was  only  circum- 
stantial evidence,  that  is  was  adulterated 
by  the  miller.     Com.  v.  James,  1  Pick.  375. 

40.  A  person  is  presumed  to  intend  the 
ordinary  consequences  of  his  acts,  and  the 
burden  to  rebut  the  presumption,  rests  upon 
the  person  charged  with  crime.  People  v. 
Orcutt,  1  Parker,  253.  But  an  instruction 
that  if  the  jury  find  certain  facts,  they  will 
be  justified  in  finding  the  defendant  guilty, 
as  "  the  law  presumes  that  he  intended  the 
natural  and  probable  consequences  of  his 
own  act,  unless  he  should  rebut  such  pre- 
sumption by  eviaence  sufficient  to  satisfy 
the  jury,"  is  erroneous.  The  jury  should 
have  been  instructed  to  find  the  defendant 
guilty,  if  satisfied  by  the  evidence  of  the 
criminal  intent,  as  well  as  of  the  other  facts, 
and  not  otherwise.  Madden  v.  State,  1 
Kansas,  340. 

4.  Documentary  evidence. 
41.  When  record  must  be  produced.  To 
prove  the  previous  conviction  of  a  witness, 
the  record  of  conviction  must  be  produced. 
People  V.  Reinhart,  39  Cal.  449 ;  People  v.  ^ 
Melvane,  lb.  614;  People  v.  McDonald,  lb. 
697.  A  witness  may  refuse  to  answer  when 
asked  whether  he  had  at  the  term  of  the 
court  then  in  session  pleaded  guilty  to  a 
ciime,  the   record  being  the  best  evidence. 


EVIDENCE. 


131 


Documentary  Evidence. 


Johnson  v.  State,  48  Ga.  116.  But  the  de- 
nial of  a  motion  for  delay  in  order  to  obtain 
such  record,  is  not  ground  of  exception. 
.State  V.  Damery,  48  Maine,  337. 

42.  The  prisoner  has  the  right  to  insist 
that  the  conviction  of  a  "witness  of  a  peni- 
tentiaiy  offense,  if  proved,  be  shown  by  the 

(record  of  conviction.  The  witness  cannot 
be  asked  whether  he  has  been  convicted  and 
sentenced  to  the  penitentiary,  although  he 
does  not  object.  Even  on  cross-examin- 
ation, the  conviction  of  the  witness  cannot 
be  proved  by  the  admission  and  consent  of 
the  witness,  if  tlie  prisoner  object.  Matter 
of  Real,  55  Barb.  186. 

43.  Where  a  witness  admits  without  ex- 
•ception  on  the  part  of  his  counsel  that  he 
has  been  in  the  penitentiary,  asking  him 
how  long  he  was  tliere  does  not  involve  the 

J  -question  of  his  conviction,  which  can  be 
proved  only  by  the  judgment  record.  Real 
V.  People,  55  Barb.  551 ;  s.  c.  42  K  Y.  270. 

44.  Copy  of  record.  A  certified  copy  of 
the  complaint  from  the  record  of  proceed- 
ings in  the  police  court,  is  competent  to 
contradict  the  testimony  of  the  complainant 
on  the  trial  of  the  indictment.  Com.  v. 
Goddard,  2  Allen,  148. 

45.  Proof  of  record.  Whether  an  instru- 
ment offered  is  a  record  or  not,  is  always 
open  to  inquiry.  And  if  words  have  been 
struck  out  of  a  record  so  as  to  render  it 
erroneous,  witnesses  may  be  examined  to 
show  that  such  words  were  improperly 
struck  out ;  but  not  to  falsify  the  record  by 
showing  that  an  alteration  whereby  the 
record  was  made  correct,  was  improperly 
made.     Schirmerv.  People,  33  III.  276. 

46.  For  the  purpose  of  proving  the  rec- 
ord of  a  conviction  in  another  State,   the 

'  seal  of  the  court  must  be  affixed  to  the  rec- 
ord with  the  certificate  of  the  clerk,  and  not 
the  certificate  of  the  judge  merely.  '  Kirsch- 
ner  v.  State,  9  Wis.  140.  For  proof  of  rec- 
ord sent  up  on  appeal  from  police  court,  see 
Com.  V.  Barry,  115  Mass.  146 ;  s.  c.  2  Green's 
Crim.  Reps.  285. 

47.  Proof  of  indictment.  It  is  improper 
to  ask  a  witness  on  cross-examination  if  he 
has  been  indicted  for  perjury.     The  indict- 


ment or  a  certified  copy  of  it,  should  be  pro- 
duced.    Peck  V.  Yorks,  47  Barb.  131. 

48.  Entries.  Entries  made  in  the  usual 
course  of  business  upon  the  books  of  a  third 
person,  by  those  whose  duty  it  was  to  make 
them,  and  who  testify  that  they  were  correct 
when  made,  but  that  they  have  now  forgot- 
ten the  transaction,  are  admissible  in  evi- 
dence, although  the  entries  were  first  written 
by  the  party  making  them  on  a  slate  during 
the  day,  and  copied  by  him  into  the  books 
at  night.  State  v.  Shiuborn,  46  New  Hamp. 
497. 

49.  Where  a  witness  to  a  transaction  has 
made  a  memorandum  at  the  time  of  the 
facts  for  the  purpose  of  preserving  the  mem- 
ory of  them,  and  can,  at  any  subsequent 
period,  swear  that  he  made  the  entry  at  the  • 
time,  for  that  purpose,  and  that  he  knows 
from  the  memorandum  that  the  fact  existed, 
it  will  be  good  evidence,  although  the  wit- 
ness does  not  retain  a  distinct  recollection 
of  the  facts  themselves.  State  v.  Rawls,  3 
Nott  &  McCord,  381. 

50.  Books  of  science.  Medical  books  are 
not  admissible  in  evidence,  either  to  sustain 
or  contradict  the  opinion  of  a  witness. 
Davis  V.  State,  38  Md.  15;  Com.  v.  Sturti- 
vaut,  117  Mass.  123.  In  Wisconsin  and  Mas- 
sachusetts, the  extent  to  which  books  may 
be  read  to  the  jury  is  discretionary  with  the 
court.  Luning  v.  State,  1  Chand.  178; 
Com.  V.  Austin,  7  Gray,  51. 

51.  In  Rhode  Island,  it  has  beenlield  that 
books  of  science  are  not  admissible,  notwith- 
standing the  counsel  for  the  prisoner  dis- 
missed a  witness  under  the  belief  that  such 
a  book  might  be  read  to  contradict  him. 
Neither  does  the  fact  that  a  witness  read 
passages  in  such  a  book  to  which  on  cross- 
examination  he  was  referred,  and  in  relation 
to  which  he  answered  questions,  render  the 
book  admissible.  iState  v.  O'Brien,  7  R.  I. 
330. 

52.  In  Illinois,  where  the  prosecution  was 
permitted,  against  the  objection  of  the 
prisoner,  to  read  to  the  jury  extracts  from 
medical  works,  which  had  not  been  intro- 
duced in  evidence  or  proved  to  be  authority, 
and  also  to  read  to  the  jury  the  testimony  of 
a  professor  of  chemistry  given  in  a  case  tried 


132 


EVIDENCE. 


Documentary  Evidence. 


Written  Instruments  how  Proved. 


in  anotlier  State,  it  was  held  error.     Yoe  v. 
People,  id  111.  410. 

53.  Map.  It  is  in  the  discretion  of  the 
court  to  allow  a  witness  to  use  a  map  to 
point  out  to  the  jury  the  location  of  an 
alleged  way.  Com.  v.  HoUiston,  107  Mass. 
233? 

54.  Advertisements.  On  a  trial  for  mur- 
der, a  witness  for  the  prosecution  on  cross- 
examination  identified  certain  advertise- 
ments in  a  newspaper  as  his,  and  it  was  held 
that  they  might  be  read  to  the  jury  in  order 
to  affect  his  credit,  but  that  the  newspapers 
could  not  be  put  in  evidence.  Com.  v. 
Ilersey,  3  Allen,  173. 

55.  Letters.  Press  or  machine  copies  of 
letters,  purporting  to  have  been  written  by  the 
defendant,  are  admissible  in  evidence  in  con- 
nection with  proof  of  due  effort  on  the  part 
of  the  prosecution  to  produce  the  original 
letters ;  and  it  is  not  ground  for  a  new  trial 
that  experts  were  allowed  to  testify  to  the 
handwriting  of  the  originals,  instead  of  the 
copies.     Com.  v.  Jeffries,  7  Allen,  548. 

56.  The  prosecution  cannot  give  in  evi- 
dence an  anonymous  letter,  written  by  a 
stranger,  though  a  witness  for  the  prosecu- 
tion had  spoken  of  the  letter,  on  the  direct 
examination,  and  had  been  cross-examined 
as  to  the  circumstances  under  which  it  was 
received  by  the  prisoner's  counsel,  its  con- 
tents not  having  been  disclosed  on  such 
examination.  People  v.  Costello,  1  Denio,  83. 

57.  Papers  of  insolvent.  To  render  the 
papers  of  an  insolvent  debtor,  which  are 
produced  by  his  assignee,  admissible  in  evi- 
dence as  coming  from  the  possession  of  the 
insolvent,  it  must  be  shown  that  the  assignee 
received  them  from  the  messenger,  and  that 
the  latter  took  possession  of  them  under  his 
warrant.     Com.  v.  Eastman,  1  Cush.  189. 

58.  Depositions.  Depositions  cannot  in 
general  be  used  against  the  prisoner;  nor 
in  his  favor,  unless  by  his  consent.  Domin- 
ges  V.  State,  7  Smed.  &  Marsh.   475.     But 

I  where  the  prisoner  previous  to  his  being  ac- 
cused, in  his  examination  on  oath,  charged 
another  with  the  commission  of  the  offense, 
it  was  held  that  his  examination  might  be 
given  in  evidence  against  him  on  the  trial. 
State  V.  Broughton,  7  Ired.  96. 


59.  Whei'e  on  a  trial  before  a  court  of 
SiJecial  Sessions,  the  prisoner's  counsel 
agreed  that  a  deposition  might  be  read  in 
evidence,  provided  time  was  given  him  to 
procure  testimony  in  order  to  show  that  the 
witness  was  incompetent,  and  several  days' 
adjournment  were  accordingly  allowed,  it 
was  held  that  the  court  having  afterward 
heard  such  testimony  and  decided  in  favor 
of  the  witness's  competency,  the  prisoner  was 
not  entitled  to  have  the  deposition  excluded. 
Bebee  v.  People,  5  Hill,  33. 

60.  The  provision  of  the  statute  of  Maine 
(R.  S.  ch.  107,  §  20),  that  the  court  may  ex- 
ercise a  discretion  in  admitting  or  rejecting 
a  deposition  taken  out  of  the  State,  is  not 
restrictive;  but  the  court  may  admit  the 
deposition  notwithstanding  an  omission  of 
some  things  in  the  certificate  deemed  essen- 
tial in  depositions  taken  in  the  State.  State 
V.  Kimball,  50  Maine,  409. 

61.  The  affidavit  of  a  witness,  sworn  to 
before  a  magistrate,  may  be  read  at  the  trial, 
either  to  support  or  contradict  his  testimony. 
State  V.  Lazarus,  1  Mills,  13.  The  same  is 
true  of  the  depositions  of  a  witness  given 
before  a  coroner's  jury,  and  certified  and  re- 
turned by  the  coroner  to  the  District  Court, 
as  required  by  law,  introduced  for  the  pur- 
pose of  contradicting  the  witness.  People 
V.  Devine,  44  Cal.  453 ;  s.  c.  2  Green's  Crim. 
Reps.  405.  But  a  memorandum  of  the  testi- 
mony of  the  witnesses  examined  before  a 
coroner's  jury  taken  by  a  person  who  was 
present,  is  not  competent  evidence.  State  v. 
McElmurray,  3  Strobh.  33. 

62.  Writing  partly  legal  and  partly- 
illegal.  When  a  writing  contains  both 
legal  and  illegal  evidence,  the  court  are  not 
required  to  expunge  that  which  is  illegal ; 
but  only  to  point  out  to  the  jury  the  illegal 
testimony,  and  designate  it  in  such  a  way 
that  they  can  identify  it.  Johnson  v.  State, 
17  Ala.  618. 

5.  Written  instrtjments  how  proved. 

63.  In  general.  A  writing  must  be 
proved  by  the  original,  if  in  the  possession 
or  control  of  the  party.  If  lost  or  destroyed, 
or  in  the  possession  of  the  opposite  party 
who  refuses  to  produce  it,  an  examined  copy 


EVIDENCE. 


133 


Written  Instruments  how  Proved. 


is  the  next  best  evidence.  If  there  is  no 
such  copy,  the  contents  may  be  proved  by 
parol.     U.  S.  V.  Britton,  2  Mason,  464. 

64.  Where  upon  a  trial  for  murder  what 
purjjorted  to  be  a  recognizance  was  intro- 
duced for  the  purpose  of  showing  an  in- 
ducement to  commit  the  crime,  but  there 
was  no  proof  of  its  execution  except  the 
instrument  itself  and  the  testimony  of  an 
agent  of  the  governors  of  the  almshouse 
that  the  accused  had  made  payments  upon 
it,  and  it  did  not  appear  to  haye  been 
filed,  it  was  held  that  the  proof  of  its  execu- 
tion was  insufficient  to  make  it  admissible 
in  evidence.  People  v.  Williams,  3  Parker, 
84. 

65.  Proof  of  handwriting  by  witness 
who  has  seen  party  write.  To  prove 
handwriting,  a  witness  must  have  seen  the 
person  write,  or  have  corresponded  with 
him.  West  v.  State,  2  Zabr.  213.  [A  witness 
may  testify  his  belief  of  the  handwriting  of 
a  party  from  having  seen  him  write  his  sig- 
nature only  once  ^  and  if  his  impression  is 
indistinct,  his  memory  may  be  revived  by 
inspecting  a  writing  which  he  knows  to  be 
genuine.    McNak  v.  Com.  26  Penn.  St.  388. 

66.  Where  a  witness  acquired  a  knowl- 
edge of  the  prisoner's  handwriting  by  seeing 
his  signature  at  different  times  to  from  eight 
to  twelve  chattel  mortgages,  which  the 
prisoner  recognized  as  instruments  he  had 
executed,  it  was  held  that  the  witness  was 
competent  to  express  an  opinion  as  to 
whether  a  paper  shown  to  him  in  court  was 
in  the  handwriting  of  the  same  person. 
Donoghoe  v.  People,  6  Parker,  120. 

67.  Proof  of  handwriting  by  compar- 
ison. In  the  case  of  deeds  or  papers  so  old 
that  no  living  witness  can  be  produced,  the 
handwriting  may  be  proved  by  comparison 
with  papers  whose  genuineness  is  acknowl- 
edged.    West  V.  State,  2  Zabr.  213. 

68.  .Where  a  writing  is  proved  to  be  gen- 
uine, comparisons  may  be  made  between  it 
and  the  writing  in  dispute,  by  witnesses, 
who  may  give  their  opinions  founded  on 
such  comparisons,  all  of  which  is  to  be  sub- 
mitted to  the  jury.";  State  v.  Hastings,  53 
New  Hamp.  452;  s.  c.  2  Green's  Crim.  Reps. 
334;  State  v.  Clark,    54  New   Hamp.  456; 


contra^  in  New  York,  People  v.  Spooner,  1 
Denio,  343. 

69.  An  expert  in  handwriting  may  testify 
whether,  in  his  opinion,  anonymous  letters 
in  a  disguised  hand,  and  calculated  to  di- 
vert suspicion  from  the  prisoner,  are  in  his 
handwriting,  and  may  give  the  reason  for 
such  opinion.  But  where  an  expert  testified 
that,  in  his  opinion,  certain  anonymous  let- 
ters, in  a  disguised  hand,  were  in  the  pris- 
oner's handwriting,  and  that  some  portion 
of  them  could  not  have  been  made  with  a 
pen,  it  was  held  that  he  could  not  be  asked 
whether  those  marks  were  made  with  a  pe- 
culiar instrument  found  in  the  defendant's 
possession.     Com.  v.  Webster,  5  Cush.  295. 

70.  On  a  trial  for  grand  larceny,  experts, 
who  had  no  previous  knowledge  of  the  hand- 
writing of  the  accused,  were  shown  disputed 
papers,  and  also  certain  other  writings 
which  had  been  proved  on  the  trial  to  be  in 
his  handwriting,  and  they  were  permitted 
to  testify  that,  upon  comparison  of  the  dis- 
puted with  the  i^roved  writing,  they  be- 
lieved that  both  were  written  by  the  same 
person.  Calkins  v.  State,  14  Ohio,  N.  S,  222. 

71.  On  a  trial  for  burglary,  it  was  held 
competent  for  an  expert  to  testify  that  a  sig- 
nature he  had  seen  on  a  leaf  of  a  hotel  regis- 
ter before  it  had  been  torn  therefrom  and 
destroyed,  was  written  by  the  same  person 
who  wrote  certain  other  signatures  which 
were  admitted  to  be  those  of  the  prisoner. 
State  V.  Shinborn,  46  New  Hamp.  497. 

72.  Persons  skilled  in  handwriting  are 
competent  to  testify,  although  they  never 
saw  the  person  write.  Hess  v.  State,  5  Ohio,  5. 

73.  The  skill  of  an  expert  in  handwriting 
cannot  be  tested  by  placing  before  him  ir- 
relevant papers,  in  order  to  contradict  his  | 
testimony  as  to  the  handwriting  contained 
in  them.  U.  S.  v.  Chamberlain,  12  Blatch. 
390.  When  handwriting  is  to  be  proved  by 
comparison,  the  standard  employed  must  be 
original  writing,  and  must  first  be  proved. 
Impressions  of  writings  taken  by  a  press, 
and  duplicates  made  by  a  copying-machine, 
are  not  originals  for  this  purpose.  Com.  v. 
Eastman,  1  Cush.  189. 

74.  The  genuineness  of  handwriting  can- 
not be  proved  or  disproved,  by  allowing  the 


134 


EVIDENCE. 


Written  Instruments  how  Proved. 


jury  to  compare  it  with  the  handwriting  of 
the  party  proved  or  admitted  to  be  genuine. 
Jumpertz  v.  People,  21  111.  375. 

75.  Proof  of  standard  of  comparison, 
how  determined.  Upon  tlie  question 
whether  a  given  writing  is  sufficiently 
proved  to  have  been  written  by  the  defend- 
ant to  allow  of  its  being  submitted  to  the 
jury  as  a  standard  of  comparison,  the  judge 
at  the  trial  must  pass  in  the  first  instance ; 
and,  so  far  as  his  decision  is  a  question  of 
fact  merely,  it  will  be  final.  Com.  v.  Coe, 
115  Mass.  481 ;  s.  c.  2  Green's  Crim.  Reps. 
292.  Vv'hen  the  court  has  adjudged  the 
papers  genuine,  it  is  the  duty  of  the  jury, 
before  making  comparison  of  a  disputed 
writing  with  them,  to  examine  the  testimony 
respecting  their  genuineness,  and  decide 
whether  their  genuineness  is  established  be- 
yond a  reasonable  doubt.  It  is  incumbent 
on  the  court  to  determine  whether  the  wit- 
nesses possess  sufficient  skill  to  entitle  them 
to  pass  upon  handwriting  as  experts.  If  the 
court  decides  that  they  do,  they  may  com- 
pare the  contested  papers  with  the  genuine, 
and  give  their  ojoinion  as  to  whether  they 
were  written  by  the  same  hand.  It  is  for 
the  jury  to  determine  what  weight  shall  be 
given  to  such  evidence,  and  the  prisoner  is 
entitled  to  the  benefit  of  any  reasonable 
doubt.     State  v.  Ward,  39  Vt.  225. 

76.  Proof  of  alterations.  The  officer  of 
a  bank,  whose  business  it  has  been  for  many 
years  to  examine  papers  with  the  view  of 
detecting  alterations,  erasures  and  counter- 
feit signatures,  inay  be  asked  his  opinion  as 
to  whether  alterations  or  erasures  had  been 
made  in  a  certain  paper.  Pate  v.  People,  3 
Gilman,  644. 

77.  Proof  of  contents  of  writing.  Proof 
of  the  contents  of  papers  in  the  possession 
of  the  adverse  party  is  admissible  after 
notice  to  produce  the  originals.  State  v. 
Kimbrough,  2  Dev.  431 ;  contra^  State  v. 
Wisdom,  8  Port.  511. 

78.  Parol  evidence  of  the  testimony  before 
\  the  coroner's  inquest,  which  was  reduced  to 

writing  by  him,  cannot  be  received.     State 
V.  Zellers,  2  Ha!st.  220. 

79.  The  contents  of  a  letter  written  by 
the   defendant    cannot  be  proved   by  the 


prosecution  unless  it  is  shown  that  the  let- 
ter is  destroyed  or  in  the  possession  of  the- 
defendant.  Com.  v.  Thompson,  Thach. 
Crim.  Cas.  28. 

80.  When  the  magistrate  before  whom, 
one  is  accused  of  crime  is  required  by  the 
statute  to  reduce  the  testimony  to  writing, 
parol  evidence  of  what  a  deceased  witness  | 
swore  on  such  examination  is  not  admissible 
until  the  absence  of  the  written  evidence  is 
accounted  for.     Davis  v.  State,  17  Ala.  415. 

81.  On  the  examination  of  the  prisoner, 
only  so  much  of  the  testimony  was  reduced 
to  writing  as  the  committing  magistrate 
deemed  material,  the  accused  being  present 
and  cross-examining  the  witness.  The  wit- 
ness died,  and  the  minutes  of  the  examina- 
tion being  lost,  it  was  held  that  the  magis- 
trate could  not  prove  the  substance  of  the 
testimony  thus  reduced  to  writing  without 
also  proving  what  was  omitted.  Sharp  v. 
State,  15  Ala.  749. 

82.  Where  on  a  trial  for  rape,  a  witness 
testified  that  the  prosecutor,  who  was  deaf 
and  dumb,  had,  more  than  a  year  after  the 
commission  of  the  alleged  offense,  given  to 
her  in  writing  the  substance  of  what  she 
had  now  testified,  and  that  such  witness  did 
not  know  where  the  writing  was,  it  was 
held  that  the  proof  was  insuflficient  to  dis- 
pense with  the  production  of  the  writing. 
State  V.  De  Wolf,  8  Conn.  93. 

83.  It  will  be  presumed  that  a  confession 
made  before  a  magis*rate  was  reduced  to 
writing;  but  it  must  be  shown  that  the  de- 
fendant signed  it,  or  admitted  it  to  be  cor- 
rect, in  order  to . exclude  parol  proof  in 
relation  to  it.  State  v.  Eaton,  3  Barring. 
554. 

84.  Parol  evidence  may  be  given  of  the 
contents  of  a  writing,  without  accounting 
for  its  absence,  if  the  object  is  not  to  prove 
such  facts  as  the  writing  would  show  if 
produced,  but  only  a  collateral  matter,  as 
its  identity  with  or  diversity  from  another 
writing.     West  v.  State,  2  Zabr.  212. 

85.  The  rule  that  a  party  shall  have  pre- 
vious notice  to  produce  a  written  instru- 
ment in  his  possession,  before  the  contents 
can  be  proved  as  evidence  in  the  case,  does 
not   apply  where   from   the  nature   of  the 


EVIDENCE. 


135 


Written  Instruments  how  Proved. 


Admissions  and  Declarations. 


prosecution  the  party  must  know  that  he  is 
charged  with  the  possession  of  the  instru- 
ment. Where,  therefore,  the  defendants 
were  charged  in  an  indictment,  a  copy  of 
which  was  furnished  them,  with  the  fraud- 
ulent possession  oi  certain  papers,  it  was 
held  that  they  were  not  entitled  to  further 
notice  to  produce  the  jDapei's.  State  v.  May- 
berry,  48  Maine,  218. 

86.  The  existence  and  acts  of  a  corpora- 
tion in  another  State  may  be  proved  by 
parol.  Com.  v.  Read,  Thach.  Crim.  Cas. 
180. 

87.  Words  written  on  the  tag  of  ft  valise, 
which  serve  to  identify  it,  may  be  proved 
orally  witliout  the  production  of  the  tag  or 
showing  its  loss.  Com.  v.  Morrell,  99  Mass. 
543. 

\y 

6.  Proof  op  testimony  given  on  former 

TRIAL. 

f88.  Waiver  by  defendant.     The  accused 
may   waive   his   constitutional  right  to  be 
confronted   by    the   witnesses  against  him; 
and  testimony  taken  down  on  a  former  trial, 
based  upon  the  same  facts,  may  be  read  as 
evidence.     State  v.  Poison,  29  Iowa,  133. 
89.  Testimony  before   grand  jury.     A 
grand  juror  may  be  compelled  to  testify  as 
'  to  what  was  given  in  evidence  by  a  witness 
before  the  grand  jury.     State  v.  Broughton, 
7  Ired.  96.     And  it  is  competent  for  the  de- 
fense to  prove,  by  a  person  who  was  present, 
that  a  witness  for  tlie  prosecution  testified 
differently  before  the  grand  jury.     Little  v. 
Com.  25  Graft.  921.     But  it  is  not  proper, 
in  order  to  assist  the  recollection  of  a  wit- 
ness, to  ask  him  to  recur  to  his  recollection 
of  his  testimony   before  the    grand    jury. 
Com.  V,  Phelps,  11  Gray,  73. 
y        90.  Testimony  of  deceased  witness.    The 
6    testimony  of  a  deceased  witness,  given  upon 
\  I  a  former  trial,  may  be  j)roved  upon  a  subse- 

Iquent  trial  of  the  same  case  between  the 
same  parties  by  a  person  who  was  present 
and  heard  it.  People  v.  Murphy,  45  Cal. 
137;  Greenwood  v.  State,  35  Texas,  587; 
Pope  V.  State,  22  Ark.  373;  State  v.  Cook, 
23  La.  An.  347;  Kean  v.  Com.  10  Bush,  iSiO; 
Pound  V.  State,  43  Ga.  88. 

91.  Evidence  of  what  a  deceased  witness 


testified  on  a  preliminary  examination  before 
a  magistrate  relative  to  the  same  charge  for 
which  the  accused  is  on  trial,  is  admissible. 
State  V.  Hooker,  17  Vt.  058 ;  Brown  v.  Com. 
73  Peun.  St.  331 ;  Barnett  v.  People,  54  111. 
335 ;  and  it  is  thus  admissible  notwithstand- 
ing the  examination  was  not  reduced  to 
writing.     Davis  v.  State,  17  Ala.  354. 

92.  Where    the   testimony   of    a  witness     i 
since  deceased  is  proved  by  a  person  who 
was  present  at  the  trial  and  heard  it,  he    I 
must  state  the  substance  of  the  testimony    I 
as  the  witness  gave  it,  and  not  merely  what    \ 
he  conceives  to  be  the  substance  of  it.     He     l 
may  re'"resh  his  memory  from  notes  taken  at     \ 
the  time,  or  from  a  newspaper  printed  by      J 
him  containing  the  evidence  as  taken  down      I 
by  himself.     U.  S.  v.  Wood,  3  Wash.  C.  C.      / 
440  ;  Kendrick  v.  State,  10  Humph.  479.  ' 

93.  Testimony  of  living  witness.  Where 
on  the  trial  of  an  indictment  for  assault  and 
battery  the  defendant  pleaded  a  former  con- 
viction for  the  same  offense,  and  oflered  in 
evidence  the  record  of  conviction,  and  to 
show  that  the  offense  was  the  same,  pro- 
duced a  person  to  prove  what  a  witness  on 
the  former  trial  swore  to,  it  was  held  proper, 
although  the  latter  witness  was  still  living 
and  within  the  State.  State  v.  Smith,  11 
Ired.  33. 

7.  Admissions  and  declarations. 

94.  Of  party  injured.  The  declarations 
of  a  party  injured,  when  no  one  is  present, 
are  not  in  general  evidence  to  show  the 
manner  in  which  the  injury  occurred,  how- 
ever nearly  contemporaneous  with  the  occur- 
rence. It  is  therefore  not  competent  to 
prove  that  a  person  robbed,  when  first  dis- 
covered, stated  that  he  had  been  robbed  by 
the  prisoner,  nor  upon  the  question  of  the 
corpus  delicti,  to  show  that  he  asked  the  per- 
sons who  found  him  if  they  had  seen  the 
accused.     State  v.  Davidson,  30  Vt.  377. 

95.  But  statements  made  by  a  sick  person^ 
to  a  physician  as  to  the  nature,  symptoms 
and  effects  of  his  illness,  are  admissible  as 
original    evidence.     Johnson    v.    State,  17     i 
Ala.  018.  -^ 

96.  Of  accused  in  general.  What  the 
prisoner  said  at  any  time  after  the  commis- 


136 


EVIDENCE. 


Admissions  and  Declarations. 


siou  of  the  oftVnse  is  competent  against  him 
as  admissions,  and  these  admissions  can  be 
proved  by  himself  or  any  other  person  who 
knew  them.  Fralich  v.  People,  G5  Barb. 
\  48.  An  admission  of  a  fact  made  at  the 
trial  in  open  court  may  be  properly  con- 
sidered by  the  jury.  People  v.  Garcia,  25 
Cal.  531. 

97.  Where  it  becomes  necessary  to  prove 
a  corrupt  intent,  the  previous  acts  and 
declarations  of  the  prisoner  are  admissible 
in  evidence  in  connection  with  the  res  gestae. 
Tuttle  V.  People,  36  K  Y.  431.  And 
threats  made  by  the  defendant  against  the 
parties  engaged  in  the  prosecution  are  ad- 
missible in  evidence  to  show  the  character 
of  the  defense.  State  v.  Rorabacher,  19 
Iowa,  154. 

98.  Distinction  as  to  time.  There  is  a 
distinction  between  a  declaration  or  state- 
ment made  before,  and  one  made  after  the 
accused  was  conscious  of  being  charged  with 
or  suspected  of  the  crime.  If  before,  it  is 
admissible  in  all  cases,  whether  made  under 
oath  or  without  oath,  ujaon  a  judicial  pro- 
ceeding or  otherwise.  But  if  made  after- 
ward, the  law  becomes  at  once  cautious  and 
besitating.  The  inquiry  then  is,  was  it 
voluntary  ?  For  unless  entirely  voluntaiy  it 
is  held  not  to  be  admissible.  People  agst. 
McMahon,  15  N.  Y.  384,  per  Selden,  J.; 
Phillips  V.  People,  57  Barb.  353 ;  42  N.  Y. 
200.     See  Teachout  v.  People,  41  N.  Y.  7. 

99.  Must  be  confined  to  subject  of  in- 
quiry. In  giving  evidence  of  oral  state- 
ments and  declarations,  the  proof  is  to  be 
confined  to  what  was  said  concerning  the 
subject  of  inquiry;  but  the  whole  of  what 
"was  said  is  to  be  received.  Com.  v.  Keyes, 
11  Gray,  323.  Yet  the  jury  are  not  bound 
to  give  equal  credit  to  all  parts  of  the  state- 
ment. State  V.  Mahon,  32  Vt  241.  See 
People  V.  Davis,  56  N.  Y.  95 ;  Real  v.  Peo- 
ple, 55  Barb.  551 ;  42  N.  Y.  270. 

100.  Declarations  of,  a  party  as  to  his 
state  of  health,  to  be  admissible  in  evidence, 
must  be  confined  to  his  condition  at  the 
moment  of  speaking,  and  cannot  be  extended 
to  past  matters.  Hunt  v.  People,  3  Parker, 
669. 

101.  Must  be  made  understandingly. 


The  declaration  of  a  child  too  young  to  tes- 
tify, is  not  admissible  in  evidence.    Smith  v. 
State,  41  Texas,  353.     And  the  same  is  true   J.-^ 
of  words   spoken    by    the   accused,   while     / 
asleep.    People  v.  Robinson,  19  Cal.  40. 

102.  By  husband  or  wife.  Where  a  hus- 
band and  wife  are  jointly  indicted  for  mur- 
der, and  the  wife  tried  separately,  his  declara- 
tions cannot  be  given  in  evidence  against 
her.     Kingen  v.  State,  50  Ind.  557. 

103.  Declarations  of  the  prisoner's  wife 
made  in  his  absence,  are  not  admissible  in 
evidence  against  him.  People  v.  Simonds, . 
19  Cal.  275. 

104.  Conversations.  A  conversation  can 
only  be  evidence  against  the  accused  when 
it  took  place  not  merely  in  his  bodily  pres- 
ence, but  in  his  hearing  and  understanding. 
A  declaration  made  in  the  presence  of  one 
unconscious  from  sleep  or  stupor,  is  not  ad- 
missible against  him.  Lanergan  v.  People, 
39  N.  Y.  39 ;  s.  c.  6  Parker,  209 ;  Com.  v. 
Harwood,  4  Gray,  41. 

105.  Where  the  prosecution  proves  a  con- 
versation with  the  defendant,  it  cannot  also 
give  in  evidence  a  writing  which  was  read 
by  the  defendant  during  the  interview,  but 
which  formed  no  part  of  the  conversation. 
Cook  V.  State,  4  Zabr.  843. 

106.  Conversations  are  to  be  received  with 
great  caution.  But  when  the  witness  hears  s. 
the  whole  conversation,  although  he  may 
not  remember  all  of  it,  his  evidence  for  that 
reason,  is  not  to  be  excluded.  Kelsoe  v. 
State,  47  Ala.  573.  The  prisoner  is  entitled 
to  proof  of  the  entire  conversation.  But  it 
does  not  follow  that  it  must  be  taken  as  true, 
although  there  may  be  no  other  evidence  in 
the  case  incompatible  wdth  it.  Corbett  v. 
State,  31  Ala.  329. 

107.  The  prisoner  and  the  deceased  having 
had  a  ditficulty  the  evening  before  the  homi- 
cide, the  prisoner  threatened  that  between 
the  setting  of  the  sun  on  that  evening  and 
its  rising  on  the  next  day,  he  would  kill  the 
deceased.  The  next  morning,  the  sun  hav- 
ing just  risen,  the  prisoner  armed  with  a  gun, 
was  on  the  road  that  led  to  the  house  of  the 
deceased,  and  immediately  before  he  shot  the 
deceased,  had  a  conversation  with  a  witness 
who  was  examined  upon  the  trial.    Held  that 


EV1T3ENCE. 


137 


Admissions  and  Declarations. 


the  door  was  open  for  tlie  admission  of  the 
entire  conversation,  and  that  it  was  error  to 
exclude  it.     McLean  v.  State,  16  Ala.  672. 

108.  On  the  trial  of  an  indictment  for 
adultery,  a  witness  for  the  prosecution  testi- 
fied that  the  defendant  was  her  step-father, 
that  he  and  her  mother  had  lived  together 
as  husband  and  wife  for  several  years,  and 
that  he  had  had  children  by  her  who  took 
his  name.  On  cross-examination,  she  testified 
that  she  supposed  or  had  understood  that  her 
mother  had  been  divorced  from  the  witness's 
father,  but  did  not  know  whether  or  not 
he  was  still  living,  or  whether  any  marriage 
had  ever  taken  place  between  her  mother 
and  the  defendant ;  that  the  first  time  she 
ever  saw  the  defendant  was  when  he  and  her 
mother  first  met  in  Montreal.  Held  that  the 
defense  had  a  right  to  ask  the  witness  what 
was  said  on  that  occasion.  Com.  v.  Belgard, 
5  Gray,  95. 

109.  A  conversation  between  the  prisoner 
and  his  accomplice  before  the  committing 
magistrate,  in  which  the  accomplice  threat- 
ened to  kill  the  prisoner,  if  he  made  any 
disclosures,  and  the  prisoner  replied  that  he 
would  not  do  so,  may  be  given  in  evidence 
against  the  prisoner;  and  a  subsequent  con- 
versation between  them  while  confined  in 
the  same  room  together,  in  which  each 
accused  the  other  of  having  been  the  cause 
of  their  detection,  is  also  admissible.  Scott 
V.  State,  30  Ala.  503. 

110.  Where  a  conversation  had  with  the 
opposite  party  has  been  proved,  the  party 
wiiose  conversation  has  been  proved  cannot, 
on  cross-examination,  show  by  the  witness 
a  subsequent  conversation  between  the  party 
cross-examining  and  the  witness,  two  or  three 
hours  after  the  first  conversation,  tliough  such 
second  conversation  related  to  the  same  sub- 
ject as  the  first,  and  was  in  explanation  of  it. 
People  v.  Green,  1  Parker,  11. 

111.  Declarations  of  defendant  in  his 
own  behalf.  As  a  general  rule,  the  declara- 
tions of  the  prisoner  in  his  own  behalf,  are 
not  admissible  in  evidence.  State  v.Iiildreth, 
9  Ired.  440;  U.  S.  v.  Imsand,  1  Woods,  581. 
To  be  admissil)le,  they  must  have  occurred 
within  the  period  covered  l)y  the  criminat- 
ing evidence,  or  tend  in  some  way  to  explain 


some  fact  or  circumstance  introduced  by  the 
prosecution,  or  to  impair  or  destroy  the  force 
of  evidence  against  him.  Chaney  v.  State, 
31  Ala.  342 ;  Birdsong  v.  State,  47  lb.  68 ; 
s.  c.  1  Green's  Grim.  Reps.  729. 

112.  On  the  trial  of  an  indictment  for 
burglary,  witnesses  in  order  to  establish  an 
alibi  had  testified  to  the  fact  that  the  de- 
fendant on  the  night  in  question  was  at  a 
ball ;  had  certified  their  recollection  by  the 
circumstances  of  talking  and  drinking  with 
him ;  had  fixed  the  time,  from  its  being  a 
ball  succeeding  the  excursion  of  a  target 
company,  in  the  evening,  and  that  the  de- 
fendant was  not  present  at  the  excursion,  al- 
though expected.  Held  that  the  fact  that 
the  declarations  of  the  defendant  to  these 
witnesses  at  the  ball,  to  show  their  means  of 
knowledge  and  recollection  as  to  his  being 
at  the  ball  and  the  occasion,  were  ruled  out, 
afforded  no  ground  of  exception.  Com.  v. 
Williams,  105  Mass.  62. 

113.  A  woman  was  charged  in  separate 
complaints  with  larceny  of  napkins  from  the 
shop  of  A.  and  of  other  goods  from  the  shop 
of  B.  The  evidence  showed  that  the  de- 
fendant went  with  another  woman  into  the 
two  shops  successively;  that  in  the  second 
shop  the  other  woman  requested  the  defend- 
ant to  hold  her  shawl,  which  she  claimed 
she  took  without  knowing  that  it  contained 
anything;  and  that  while  she  was  holding  it, 
the  napkins  dropped  out,  and  the  defendant 
picked  them  up  and  carried  them  to  the 
counter,  and  spoke  to  one  of  the  clerks  about 
them.  Held  that  proof  of  the  defendant's 
conversation  with  the  clerk,  and  of  her  ac- 
companying gesture  to  point  out  the  other 
woman,  were  admissible  to  explain  the  de- 
fendant's possession.  Com.  v.  Rowe,  105 
Mass.  590. 

114.  Where  a  deputy  sheriff  indicted  as 
an  accessory  before  the  fact  to  a  burglary, 
was  charged  with  being  intentionally  un- 
faithful in  the  discharge  of  his  duty,  and 
with  having  conducted  himself  in  a  manner 
calculated  to  screen  the  burglars  from  arrest, 
it  was  held  that  he  might  prove  conversa- 
tions between  him  and  another  officer  as  to 
the  best  means  of  securing  their  conviction, 
and  also  inquiries  instituted  and  information 


138 


EVIDENCE. 


Admissions  and  Declarations. 


obtuinc'd  by  birn   while  in   pursuit  of    the 
burglars.     Com.  v.  Robinson,  1  Gray,  555. 

115.  A  letter  -written  for  the  prisoner  by 
the  witness  while  they  were  in  jail  together 
is  not  admissible  in  evidence  for  the  accused. 
either  as  original  testimony  of  its  contents, 
or  for  the  purpose  of  impeaching  the  wit- 
witness.     Campbell  v.  State,  23  Ala.  44. 

116.  Where  on  the  trial  of  an  indictment 
for  receiving  and  having  stolen  property, 
one  of  the  defendant's  witnesses  swore  that 
lie  saw  samples  of  the  property  in  the  store 
of  the  defendants,  the  latter  cannot  show 
by  the  "witness  what  was  said  by  one  of 
them  then  present,  "as  to  what  the  prop- 
erty was  doing  there."  Wills  v.  People,  3 
Parker,  473. 

117.  Where  the  defendant  gives  in  evi- 
dence a  statement  made  to  him,  he  cannot 
prove  his  reply,  although  the  prosecution 
has  cross-examined  the  witness  as  to  such 
statement.     Cook  v.  State,  4  Zabr.  843. 

118.  Where  a  witness  for  the  people  is 
asked  on  cross-examination  if  the  defendant 
did  not  say  a  certain  thing  to  him  or  in  his 
hearing  on  a  certain  occasion,  and  the  wit- 
ness answers  in  the  negative,  the  defend- 
ant cannot  prove  by  another  witness  that 
he,  the  defendant,  did  make  such  remark  at 
the  time  and  place  in  question.  Wills  v. 
People,  3  Parker,  473. 

119.  The  declarations  of  the  prisoner  can- 
not be  proved  for  the  purpose  of  drawing 
out  the  reply  of  the  witness  to  whom  they 
were  made,  unless  they  form  a  part  of  a  con- 
versation put  in  evidence  by  the  prosecu- 
tion.    Campbell  v.  State,  23  Ala.  44. 

120.  Although  where  the  declarations  of 
the  prisoner  are  proved,  the  jury  ought  to 
take  the  whole  into  consideration,  yet  they 
may  reject  those  in  his  favor,  and  believe 
those  against  him.  Green  v.  State,  13  AIo. 
382;  Blackburn  v.  State,  23  Ohio  St.  146; 
B.  c.  2  Green's  Crim.  Eeps.  534.  Therefore 
it  is  erroneous  to  instruct  the  jury  that  what 
%vas  said  by  the  prisoner  in  his  own  behalf 
must  be  taken  as  true,  if  what  he  said 
against  himself  in  the  same  conversation  is 
taken  as  true.  People  v.  Graham,  21  Cal. 
261. 


121.  In  Michigan,  although  the  statement 
of  the  prisoner  under  the  statute  is  not  evi- 
dence in  the  ordinary  acceptation  of  that 
term,  because  not  made  under  oath,  yet  the 
jury  have  a  right  to  give  it  such  credit,  in 
whole  or  in  part,  as  they  think  it  deserves. 
Maher  v.  People,  10  Mich.  213. 

122.  Declarations  of  codefendant.  The 
declarations  of  a  codefendant  not  on  trial, 
made  in  the  absence  of  the  defendant  on 
trial,  are  not  admissible  in  evidence  against 
the  latter,  unless  made  during  the  pendency 
of  the  criminal  enterprise,  and  in  further- 
ance of  its  objects.  People  v.  Moore,  45 
Cal.  19 ;  Com.  v.  Ingraham,  7  Gray,  46  ;  Com. 
V.  Eberle,  3  Serg.  &  Rawle,  9 ;  State  v.  Pike, 
51  New  Hamp.  105. 

123.  The  confessions  or  declarations  of  an 
accomplice,  made  when  the  parties  were  in 
the  act  of  committing  an  oifense,  or  on  the 
way  to  commit,  are  admissible  in  evidence 
against  all  concerned.  Hunter's  Case,  7 
Gratt.  641. 

124.  Any  act  or  declaration  of  one  of 
several  conspirators,  in  reference  to  the  com- 
mon purpose,  may  be  proved  against  the 
others.  State  v.  Soper,  16  Maine,  293;  Ma- 
loue  V.  State,  8  Ga.  408. 

125.  A.  and  B.,  being  jointly  indicted  for 
grand  larceny,  and  A.  tried  separately,  it 
was  held  that  a  letter  written  by  B.  to  a  per- 
son whom  he  called C,  advising  him  to  run 
away,  was  admissible  in  evidence,  it  having 
been  proved  that  A.  and  B.  committed  the 
larceny.     State  v.  Barton,  19  Mo.  227. 

126.  The  declarations  of  cod  ef  end  ants,  af- 
ter the  commission  of  the  ofl'ense,  are  ad- 
missible in  evidence  against  the  defendant, 
not  as  proof  of  the  facts  admitted  in  such 
declarations,  but  as  tending  to  show  that 
previous  confessions  of  the  defendant  were 
true.     State  v.  Knight,  19  Iowa,  94. 

127.  On  the  trial  of  B.,  under  a  joint  in- 
dictment against  A.  and  B.,  it  became  ma- 
terial, in  order  to  establish  the  guilt  of  B., 
to  prove  certain  conduct  of  A.  on  the  day  of 
the  alleged  oftense.  A.  having  been  made  a 
witness,  it  was  held  that  statements  made  by 
him  before  the  alleged  offense  was  commit- 
ted, relating  the  circumstances  of  his  con- 
duct, and  showing  that  it  occurred  on  a 


EVIDENCPl 


130 


Admissions  and  Declarations. 


prior   day,    were    admissible    in   evidence. 
State  V.  Cruise,  19  Iowa,  312. 

128.  When  an  accessory  is  tried  before  the 
principal,  the  acts  and  conduct  of  the  latter, 
immediately  following  the  commission  of 
the  oflFense,  are  admissible  to  prove  the 
guilt  of  the  principal.  State  v.  Rand,  33 
New  Hamp.  216. 

129.  When  the  declarations  of  one  of  two 
defendants  are  of  such  a  character  that  they 
cannot  be  stated  without  implicating  both, 
they  may,  notwithstanding,  be  received. 
But  the  court  must  instruct  the  jury  that 
they  are  evidence  only  against  the  party  by 
whom  they  are  made.  Kelsoe  v.  State,  47 
Ala.  573. 

130.  Declaration  of  third  parson.  On 
the  trial  of  an  indictment  for  a  riotous  as- 
sault upon  an  officer  while  serving  a  legal 
precept  on  A.,  who  was  charged  with  be- 
ing a  fugitive  from  another  State,  it  was  held 
that  the  defendants  could  not  introduce 
evidence  that  B.,  who  claimed  the  custody 
of  A.,  had  declared  that  the  officer  knew 
B.  had  stated  that  A.  had  not  committed 
larceny,  and  that  the  charge  was  made 
merely  for  the  purpose  of  getting  him  into 
custody,  so  that  he  could  the  more  easily  be 
carried  home.     Com.  v.  Tracy,  5  Mete.  536. 

131.  Tacit  admission  of  defendant.  Ad- 
missions and  confessions  may  be  implied 
from  the  acquiescence  of  the  defendant  in 
the  statements  of  others  made  in  his  presence, 
when  the  circumstances  are  such  as  afford 
him  an  opportunity  to  act  or  speak,  and 
would  naturally  call  for  some  action  or 
reply  from  a  person  similarly  situated ;  and 
it  makes  no  difference  that  the  statements 
which  call  for  a  reply  are  made  by  a  party 
who  is  incompetent  to  testify.  People  v. 
McCrea,  32  Cal.  98 ;  State  v.  Reed,  62  Maine, 
129;  s.  c.  2  Green's  Crim.  Reps.  468. 

132.  Where  a  slave  told  his  master,  in 
the  presence  of  the  prisoner,  that  the  latter 
wanted  the  slave  to  go  off  with  liim,  for 
which  the  master  was  at  the  time  threatening 
to  arrest  the  prisoner,  under  circumstances 
which  justified  the  suspicion  of  his  guilt,  and 
to  which  he  made  no  reply,  it  was  held  ad- 
missible  against  him  as  an  implied  admis- 


sion  of  the  truth    of   the  charge.     Martin 
V.  State,  39  Ala.  523. 

133.  A  slave  being  called  before  a  num- 
ber of  persons,  among  whom  were  his  master 
and  mistress,  in  order  to  have  his  shoes  com- 
pared with  certain  tracks  supposed  to  have 
been  made  by  a  person  who  had  committed 
a  crime ;  several  of  the  company  exclaimed, 
when  it  appeared  that  his  shoes  and  the  tracks 
corresponded,  that  they  were  the  shoes  that 
made  the  tracks.  Held  that  this  exclama- 
tion, with  the  fact  that  the  slave  made  no 
reply  to  it,  was  not  admissible  against  him 
as  an  implied  admission.  Bob  v.  State,  32 
A.la.  560. 

134.  A  declaration  proved  to  have  been 
made  in  the  presence  of  the  prisoner  will  be 
presumed  to  have  been  made  in  his  hearing. 
And  an  act  of  a  third  person  done  in  the 
presence  of  the  prisoner,  is  equally  admissi- 
ble as  a  declaration  made  in  his  presence. 
Hochrieter  v.  People,  2  N.  Y.  Ct.  of  Appeals, 
Decis.  363;  s.  c.  1  Keyes,  66. 

135.  Where  declarations  are  made  in  the 
presence  of  a  person  who  is  partially  intox- 
icated, and  not  contradicted  by  him,  it  is 
for  the  jury  to  say  whether  he  was  too  much 
intoxicated  to  understand  the  statement 
when  made.  State  v.  Perkins,  3  Hawks, 
377. 

136.  Where  on  the  trial  of  an  indictment 
for  being  a  common  seller  of  spirituous 
liquors,  a  declaration  made  by  a  person  in 
the  defendant's  employ,  in  the  defendant's 
presence,  was  proved,  and  the  jury  were  in- 
structed that  they  were  not  to  regard  it 
unless  they  were  satisfied  the  defendant 
heard  it,  it  was  held  that  as  the  jury  might 
infer  that  if  he  did  hear  it,  his  silence  was 
without  reference  to  the  accompanying  cir- 
cumstances to  be  deemed  a  tacit  acquies- 
cence on  his  purt,  the  defendant  was  entitled 
to  a  new  trial.    Com.  v.  llarvey,  1  Gray,  487. 

137.  Conduct  of  the  defendant  relative  to 
the  charge  against  him,  tending  to  show  an 
admission  of  guilt,  is  competent  evidence;  as 
where  one  of  his  bail,  having  suggested  to  him 
that  he  might  risk  a  liability  on  his  bond 
for  six  months  longer,  and  possibly  compro- 
mise it  if  necessary,  he  replied,  "  Do  as  you 
see  lit."     Huggins  v.  State,  41  Ala.  393. 


140 


EVIDENCE. 


Admissions  and  Declarations. 


Confessions. 


138.  Telegram.  Telegraphic  messages 
in  the  handwriting  of  the  defendant  are 
competent  as  admissions  by  him ;  it  being 
proved  by  the  telegraph  operator  that  such 
messages  ^vere  received  at  the  office  and 
duly  transmitted  over  the  wires,  directed  to 
the  parties  to  whom  they  were  addressed  by 
the  defendant.  Com.  v.  Jeffries,  7  Allen, 
548. 

139.  Admissible  although  improperly 
obtained.  A  circumstance  tending  to  show 
fiuilt  may  be  proved,  although  it  was 
brought  to  light  by  a  declaration  not  ad- 
missible in  itself,  as  having  been  obtained  by 
improper  influence.  Where  therefore,  on  a 
trial  for  murder,  it  aj)peared  that  the  pris- 
oner had  stated  that  her  hand  was  burned 
in  extinguishing  fire  on  the  deceased,  it  was 
held  proper  to  show  that  at  the  coroner's 
inquest  she  carried  her  hand  wrapped  up  in 
a  handkerchief,  that  she  was  made  to  un- 
wrap and  show  her  hand,  and  that  upon 
examination,  it  showed  no  indication  of  a 
burn.  State  V.  Garrett,  71  JST.  C.  85;  s.  c.  2 
Green's  Crim.  Reps.  751. 

140.  It  is  not  competent  to  prove  declara- 
tions of  the  defendant  by  a  written  memo- 
randum made  by  the  witness  at  the  time, 
Avhich  he  states  to  be  correct.  They  must 
be  proved  by  the  witness  himself.  People  v. 
Elyea,  14  Cal.  144. 

141.  Order  of  proof.  It  is  competent  for 
the  court  to  permit  the  district  attorney  to 
show  that  a  certain  letter  written  by  the 
prisoner  was  a  voluntary  statement,  before 
permitting  the  prisoner  to  attempt  to  prove 
the  contrary:  the  letter  not  being  read  to 
jury  until  the  prisoner  has  introduced  his 
evidence  respecting  it.  Gardiner  v.  People, 
6  Parker,  155.  The  admissions  and  decla- 
rations of  the  prisoner  may  be  proved  with- 
out first  showing  that  no  promise  or  threat 
was  held  out  to  induce  him  to  make  them. 
Dixon  V.  State,  13  Fla.  636;  s.  c.  1  Green's 
Crim.  Reps.  687. 

142.  Evidence  in  rebuttal.  Where  on  a 
trial  for  causing  death  by  effecting  an  abor- 
tion, a  witness  for  the  accused  testified  with- 
out objection  on  the  part  of  the  prosecution 
to  a  conversation  she  had  with  the  deceased 
a  day  or  two  before  her  death,  during  which 


the  deceased  informed  the  witness  that  her 
illness  was  caused  by  a  miscarriage,  and  that 
the  miscarriage  had  been  brought  on  by 
natural  causes.  Held,  that  although  such 
evidence  was  imj^roper,  yet  as  it  was  not  ob- 
jected to,  the  prosecution  might  prove  that 
the  deceased  was  not  in  her  right  mind  when 
she  made  such  declarations.  Hunt  v.  Peo- 
ple, 3  Parker,  569. 

143.  On  a  trial  for  murder,  the  prosecution 
introduced  a  letter  in  evidence  alleged  to 
have  been  written  by  the  prisoner  to  a  fellow 
convict,  but  which  was  intercepted.  The 
keeper  of  the  prison  was  then  called  by  the 
prosecution,  and  testified  to  a  conversation 
with  the  prisoner,  in  which  the  latter  said  he 
had  done  all  the  communicating  he  wanted 
to.  This  witness  also  gave  evidence  fi-om 
which  it  might  be  inferred  that  other  com- 
munications than  by  writing  between  the 
prisoner  and  other  convicts  were  possible. 
Eeld^  that  the  court  erred  in  sustaining  an 
objection  to  an  oQ'er  to  show  by  the  prisoner 
that  he  had  held  no  communication  in  any 
way  with  any  one  in  the  shop  where  he 
worked  and  where  the  homicide  was  com- 
mitted from  the  day  of  its  occurrence. 
Donohue  v.  People,  56  N.  T.  208. 

144.  Do  not  bind  prosecution.  The  prose- 
cution by  jH'oving  the  declarations  of  the 
prisoner  is  not  bound  or  concluded  by  them, 
but  they  are  taken  in  connection  with  all 
the  other  evidence.  Lowenberg  v.  People, 
5  Parker,  414;  27  K  Y.  386, 

For  dying  declarations,  see  Homicide. 


!> 


8.  Confessions. 

145.  Capacity  to  make.  Where  a  servant 
girl  between  the  age  of  twelve  and  thirteen 
years,  who  was  shrewd,  sensible  and  artful, 
was  accused  of  arson,  it  was  held  that  if  she 
had  such  mental  capacity  as  rendered  her 
amenable  to  the  law,  she  had  sufficient  to 
make  a  confession  of  her  guilt.  State  v. 
Bostick,  4  Harring.  563. 

146.  Manner  of.  Where  a  person  ar- 
rested for  having  in  his  possession  an  altered 
bank  bill  with  intent  to  pass  the  same,  made 
confession  of  his  guilt,  partly  in  English  and 
partly  in  German,  to  an  officer  who  em- 
ployed no  promises  or  threats,  it  was  held 


EVIDENCE. 


141 


Confessions. 


that  the  confessions  were  admissible  in  evi- 
dence, although  the  prisoner  when  he  made 
them  was  very  much  frightened,  and  the 
officer  did  not  understand  what  was  said  in 
German.  People  v.  Thorns,  3  Parker, 
25G. 

147.  On  a  trial  for  murder,  a  witness  was 
permitted  to  testify  to  a  confession  of  guilt 
made  to  him  by  the  prisoner  in  a  conver- 
sation which  the  witness  carried  on  with  him 
through  the  soil  pipes  of  the  jail,  and  that 
he  knew  the  prisoner  from  his  voice.  Held 
proper.     Browm  v.  Com.  76  Penn.  St.  319. 

148.  Subject  of.  A  confession  or  declara- 
tion to  be  admissible  need  not  be  minute  or 
explicit  in  its  reference  to  the  subject-mat- 
ter, or  define  the  time,  place  or  person  with 
whom  the  transaction  occurred  ;  and  it  may 
apply  to  other  occurrences  beside  the  one  un- 
der investigation.  Where  on  the  trial  of  an 
indictment  for  sodomy,  the  defendant  was 
proved  to  have  declared  a  week  after  the 
alleged  crime  that  he  "had  done  it  with 
other  boys,"  it  was  held  competent  for  the 
jury  to  determine  whether  or  not  this  decla- 
ration referred  to  the  offense  in  question. 
Com.  V.  Snow,  111  Mass.  411. 

149.  A  confession  that  the  accused  had 
assisted  to  get  another  man's  son  out  of  jail 
who  would  aid  him  in  escaping,  together 
with  the  fact  that  this  man  had  gone  to  the 
jail  where  the  accused  was  confined,  is  ad- 
missible in  evidence  against  him.  Campbell 
V.  State,  23  Ala.  44. 

150.  Where  an  accomplice  under  a  promise 
from  the  prosecution  that  he  shall  not  be 
tried,  makes  a  confession  and  then  refuses  to 
testify,  his  confession  will  be  admissible  in 
evidence  against  him.  Com.  v.  Knapp,  10 
Pick.  478. 

151.  On  a  trial  for  concealing  a  horse 
thief,  the  prosecution  cannot  prove  the  con- 
fessions of  the  alleged  thief  in  the  presence 
of  the  defendant,  that  a  horse  had  been 
stolen.     Morrison  v.  State,  5  Ohio,  438. 

152.  General  grounds  of  admission  or 
exclusion.  Before  tiie  confessions  of  the 
prisoner  can  be  admitted  in  evidence,  the 
court  must  be  satisfied,  upon  taking  into 
consideration  the  prisoner's  age,  condition, 
situation  and  character,  and  the  attendant 


circumstances,  that  they  were  made  volun- 
tarily. Miller  v.  State,  40  Ala.  54.  Confes- 
sions are  excluded  only  when  made  under 
circumstances  that  may  tend  to  produce 
doubt  as  to  their  truth,  arising  from  the 
operation  of  hope  or  fear  in  the  mind  of  the 
prisoner.  When  made  under  the  efibct  of 
threats,  or  the  sanction  of  an  oath  without 
the  proper  caution  being  given  that  he  need 
not  answer,  and  that  what  he  says  may  be 
used  against  him,  and  some  other  circum- 
stances, the  admissions  are  excluded.  But 
where  the  admissions  are  purely  voluntary 
they  are  to  be  submitted  to  the  jury. 
O'Brien  v.  People,  48  Barb.  274 ;  36  N.  Y. 
276 ;  State  v.  Grant,  22  Maine,  171 ;  Peter  v. 
State,  4  Smed.  &  Marsh.  31. 

153.  By  witness.  A  sworn  statement 
made  by  the  prisoner  upon  his  examination 
as  a  witness,  before  he  was  accused  of  the  \ 
crime,  is  admissible  in  evidence  against  him. 
State  V.  Baignew,  5  Rich.  391.  Therefore, 
where  on  the  trial  of  a  husband  for  the 
murder  of  his  wife,  it  appeared  that  the  pris- 
oner had  been  a  witness  before  the  coroner's 
jury  the  evening  after  the  death,  and  that 
he  had  not  then  been  accused  of  the  crime ; 
it  was  held  that  his  testimony  was  admissible 
in  evidence  against  him.  People  v.  Hend- 
rickson,  1  Parker,  406;  10  N.  Y.  13. 

154.  In  New  York,  it  has  been  held  that 
although  a  person  may  be  suspected  of  the 
crime,  yet  that  his  testimony  in  other  respects 
freely  and  voluntarily  given  before  the  cor- 
oner, may  be  used  against  him  on  his  trial, 
on  a  charge  of  such  crime  subsequently  made. 
Teachout  v.  People,  41  N.  Y.  7,  Grover  and 
Lott,  JJ.,  dissenting.  But  where  it  appeared 
on  a  trial  for  murder,  that  the  prisoner  was  a 
witness  after  his  arrest,  before  the  coroner's 
jury,  but  his  arrest  was  not  known  to  the 
coroner  at  that  time,  it  was  held  not  compe- 
tent to  prove  what  the  accused  testified  be- 
fore the  coroner's  jury.  People  v.  McMahon, 
15  N.  Y.  384. 

155.  And  in  North  Carolina,  where  a 
woman  accused  of  murder,  confessed  her 
guilt  in  response  to  a  question  put  to  her  by 
the  foreman  of  the  coroner's  jury,  without 
any  previous  advice  as  to  her  legal  rights, 
and  the  probable  consequences  of  her  guilt, 


142 


EVIDENCE. 


Confessions. 


\ 


it  was  lieki  that  tlie  confession  was  not  ad- 
missible in  evidence  against  her.  State  v. 
Mathews,  66  N.  C.  106.  And  in  California, 
wliere  a  person  accused  of  grand  larceny 
confessed  his  guilt  to  the  examining  mag- 
istrate in  answer  to  questions  put  to  him 
after  being  sworn,  it  was  held  that  the  con- 
fession was  not  admissible  in  evidence 
against  him.  People  v.  Gibbons,  49  Cal. 
557 ;  s.  c.  1  Green's  dim.  Reps.  593.  See  also, 
U.  S.  V.  Proscott,  3  Dillon,  405 ;  s.  c.  1  Green's 
Crim.  Reps.  439. 

156.  By  person  under  arrest.  The  cir- 
cumstance that  the  party  making  a  confes- 
sion was  at  the  time  under  arrest,  though 
proper  to  be  taken  into  consideration,  is  not 
of  itself  sufEcient  to  exclude  the  evidence. 
Ilartung  v.  People,  4  Parker,  319;  People  v. 
Rogers,  18  N.  Y.  9;  Com.  v.  Hosier,  4  Barr, 
2G4;  Stephen  v.  State,  11  Ga.  235;  State  v. 
Jefferson,  6  Ircd.  305 ;  People  v.  Rodundo, 
44  Cal.  538;  s.  c.  3  Green's  Crim.  Reps.  411. 
But  it  seems  that  in  Louisiana,  when  the 
arrest  is  made  by  private  persons,  a  confes- 
sion by  the  prisoner  to  them,  is  not  admis- 
sible in  evidence  against  him.  State  v. George, 
15  La.  An.  145. 

157.  By  intoxicated  person.  It  is  not 
good  ground  of  objection  to  confessions  ol 
guilt,  that  the  defendant  was  intoxicated, 
that  he  was  excited  and  scattering  in  his  con- 
versation, and  that  no  one  who  heard  him 
could  repeat  all  he  said.  Eskridge  v.  State, 
25  Ala.  50.  But  confessions  made  by  a 
person  so  much  under  the  influence  of  liquor 
as  net  to  understand  what  he  is  confessing 
are  to  be  disregarded;  and  the  defendant 
may  show  that  the  facts  did  not  take  place 
as  alleged.     Com.  v.  Howe,  9  Gray,  110. 

158.  In  Virginia,  a  member  of  the  jailer's 
family  holding  no  ofBce,  and  having  no  con 
nection  with  the  prisoner  further  than  to 
attend  about  the  jail  and  in  the  absence  of 
the  jailer  to  have  control  of  it  and  carry  the 
key.s,  is  not  a  person  having  authority  within 
the  meaning  of  the  rule  excluding  a  confes- 
sion obtained  through  his  influence.  Shiiflet 
v.  Com.  14  Gratt.  653. 

159.  Given  by  prisoner  cf  his  own 
accord.  A  pcr.-on  arrested  for  murder,  but 
not  informed  of  the  charge  against  him,  said 


to  a  fellow  prisoner,  "  If  you  will  not  tell  on 
me,  I  will  tell  you  something."  The  other 
said  he  would  not  tell,  but  if  he  did,  it 
would  make  no  difference  as  one  criminal 
could  not  be  a  witness  against  another.  The 
first  speaker  then  said,  "I  want  to  know 
what  to  do."  The  other  answered,  "If  I 
knew  the  circumstances,  I  could  tell  you 
what  to  do."  Held  that  the  confession  which 
was  thereupon  made,  was  admissible  in  evi- 
dence.    State  V.  Mitchell,  Phil.  N.  C.  447. 

160.  Obtained  by  artifice.  The  confession 
will  be  admissible,  even  where  it  has  been 
obtained  by  a  deception  practiced  on  the 
prisoner.  Rutherford  v.  Com.  2  Mete.  387 ; 
State  V.  Jones,  54  Mo.  478 ;  s.  c.  3  Green's 
Crim.  Reps.  603;  State  v.  Staley,  14  Minn.  I 
105.  Where  a  person  arrested  for  murder,  ' 
was  falsely  told  by  the  officer  who  had  him 
in  charge,  that  his  alleged  accomplice  had 
informed  against  him  and  would  testify  to 
his  guilt,  it  was  held  that  a  confession  which 
he  thereupon  made  to  the  officer,  was  admis- 
sible in  evidence  against  him.  Price  v.  Slate, 
18  Ohio,  N.  S.  418. 

161.  In  answer  to  question.  The  mere 
fact  that  a  confession  is  made  in  answer  to 
a  question  which  assumes  the  prisoner's 
guilt,  does  not  for  that  reason  render  the 
confession  inadmissible.  Miller  v.  State,  40 
Aln.  54;  People  v.  AVentz,  37  N.  Y.  303; 
State  V.  Staley,  supra. 

162.  The  officer  who  committed  the  pris- 
oner on  a  charge  of  murder,  asked  him 
whether  if  it  were  to  be  done  over  again,  he 
would  do  it  ?  To  which  he  replied,  "  Yes 
Siree  Bob."  It  was  held  that  both  question 
and  answer,  were  admissible,  as  well  as  the 
fact  that  in  making  the  reply,  the  prisoner's 
manner  was  short,  Carrol  v.  State,  23 
Ala.  28. 

163.  Where  on  the  trial  of  an  indictment 
for  stealing  a  cow  it  was  proved  that  an  offi- 
cer on  the  night  of  the  arrest  went  to  tha 
defendant's  house  with  a  warrant  against 
him  for  stealing  another  cow,  and  after 
searching  the  house  said  to  him  (alluding  to 
the  other  cow),  "  Where  did  you  get  that 
cow  ?  We've  got  you  this  time.  We  have 
traced  it  round  unt  1  we  are  satisfied  you've 
got   the   cow."     Subsequently  on  the  same 


1 


EVIDENCE. 


143 


Confessions. 


evening  the  ofSc:er  had  a  conversation  with 
the  defendant  about  both  cows.  Held  that 
his  confession  then  made,  was  admissible  in 
evidence.  Com.  v.  Whittemore,  11  Gray, 
201. 

164.  On  tlie  trial  of  u  slave  for  murder, 
the  confessions  of  the  accused  made  to  a  free 
white  citizen  were  held  admissible  in  evi- 
dence, notwithstanding  slaves  wefe  com- 
pelled to  answer  any  question  a  white  man 
might  put  to  them.  Jim  v.  State,  15  Ga. 
5J55.  Where  a  slave  made  a  confession  while 
being  taken  to  jail  in  chains  on  a  charge  of 
murder,  in  reply  to  the  question  ''  what  he 
had  against  the  deceased  to  induce  him  to 
strike  him,"  there  being  no  promises  or 
threats,  it  was  held  that  the  confession  was 
admissible  in  evidence  against  him.  Austin 
v.  State,  14  Ark.  555. 

165.  In  Massachusetts,  where  a  negro  boy 
thirteen  or  fourteen  years  of  age  was  ar- 
rested by  two  police  officers  on  suspicion  of 
murder,  stripped  and  searched,  locked  up 
in  a  station  house,  aud  at  ten  o'clock  at 
night  taken  from  his  cell  and  questioned 
until  midnight  without  being  warned  of  his 
right  to  refuse  to  answer,  or  afforded  an 
opportunity  to  consult  with  counsel  or 
friends,  it  was  held  that  in  the  absence  of 
proof  of  threats  or  promises  other  than 
might  be  inferred  from  the  above,  the  state- 
ments made  by  the  boy  were  admissible  in 
evidence.     Com.  v.  Cuflee,  103  Mass.  285. 

166.  Knowledge  ordinarily  acquired  in 
consequence  of  a  search  warrant  is  admissi- 
ble in  evidence  at  common  law,  notwith- 
standing one  of  the  objects  of  the  search 
was  to  obtain  evidence,  even  if  the  search 
warrant  was  illegally  issued.  State  v.  Flynn, 
36  New  Ham  p.  64. 

167.  Obtained  by  promise  of  advantage. 
A  slave  being  in  prison  on  a  charge  of  assault 
with  intent  to  kill,  was  induced  to  make  a 
confession  by  an  implied  promise  that  his 
master  would  prevent  his  being  hung.  Held 
that  the  fact  that  he  was  kept  in  prison,  and 
that  his  confession  was  usod  against  him  on 
his  trial,  did  not  render  a  subsequent  reiter- 
ation of  the  confession  admissible  in  evi- 
dence against  him  on  the  second  trial.  Bob 
v.  State,  32  Ala.  560. 


168.  The  prosecutor  testified  that  the 
prisoner  being  taken  to  his  residence  by  a 
policeman,  told  them  that  he  had  broken 
into  the  house  by  lifting  the  door  from  its 
hinges,  and  that  he  had  taken  property  from 
the  house.  Another  policeman  testified  that 
finding  on  the  prisoner  when  he  arrested 
him  articles  supposed  to  have  been  stolen, 
he  promised  him  that  he  should  be  released  if 
he  would  tell  where  he  got  the  property,  and 
that  the  prisoner  agreeing  to  do  so,  was 
sent  to  the  prosecutor's  house,  for  that  pur- 
pose. The  court  excluded  the  prisoner's  con- 
fessions, but  admitted  proof  of  his  acts  in 
connection  therewith.  ^eM  proper.  Moun- 
tain V.  State,  40  Ala.  344. 

169.  Where  the  day  before  a  confession 
was  made  to  an  officer,  the  officer  told  the 
prisoner  that  he  could  make  him  no  prom- 
ises, but  if  he  made  any  disclosures  that 
would  be  of  any  benefit  to  the  government 
the  officer  would  use  his  influence  to  have  it 
go  in  his  favor,  the  confession  was  held  not 
admissible  in  evidence.  Com.  v.  Taylor,  5 
Gush,  505.  And  see  Barnes  v.  State,  38 
Texas,  356 ;  s.  c.  1  Green's  Crim.  Reps.  648. 

170.  Officers  told  a  person  who  was  ac- 
cused of  grand  larceny  that  all  they  wanted 
was  to  recover  the  goods,  and  if  he  would 
tell  them  where  they  were,  so  that  they 
could  get  them,  it  would  end  the  matter  and 
nothing  further  would  be  done.  The  de- 
fendant then  told  what  he  knew  about  the 
larceny,  and  where  the  stolen  articles  were. 
Held  that  his  confession  was  not  admissible 
in  evidence  against  him.  State  v.  Hagan, 
54  Mo.  192. 

171.  The  prosecutor  said  to  a  negro  boy 
eighteen  years  of  age,  who  was  arrested  on 
a  charge  of  burglary :  "  You  are  veiy  young 
to  be  in  such  a  difficulty  as  this;  there  must 
have  been  some  one  with  you  who  was  older, 
and  I,  if  in  your  place,  would  tell  who  it 
was;  it  is  not  right  for  you  to  suffer  the 
whole  penalty  aud  let  some  one  who  is 
guiltier  go  free;  it  may  go  lighter  with 
you."  And  the  man  with  whom  the  pris- 
oner previously  lived  said  to  him :  "  Tom, 
this  is  mighty  bad ;  they  have  got  the  dead 
wood  on  you,  and  you  will  be  convicted;" 
and  at  the  same  time  said  something  to  him 


144 


EVIDENCE. 


Confessions. 


about  "owning  up;"  also,  that  lie  could 
have  nothing  to  do  with  one  who  had  acted 
so  badly,  and  if  the  prisoner  luid  anything 
to  say  as  to  his  assisting  nim  in  the  difficulty, 
to  do  so.  Held  that  the  confessions  thus 
obtained  were  inadmissible.  Newman  v. 
State.  49  Ala.  9. 

172.  Promise  of  collateral  benefit.  It  is 
not  necessary  to  render  a  confession  admis- 
sible that  it  should  be  the  prisoner's  own 
spontaneous  act.     Where  no  hope  or  favor 

\  in  respect  to  the  criminal  charge  is  held  out, 
it  will  be  competent  though  obtained  by  a 
promise  of  some  collateral  benefit,  Staie  v. 
Wentworth,  37  New  Hanip.  196 ;  Rutherford 
V.  Com.  2  Mete.  Ky.  387. 

173.  Urged  to  make.  It  is  not  a  suffi- 
cient objection  to  a  confession  that  the 
prisoner  was  urged  to  make  a  statement 
with  no  promise  of  favor  or  intimidation. 
"Where  after  the  arrest  of  a  person  on  a 
charge  of  murder  he  was  asked  where  he 
was  the  day  before,  and  told  to  give  an  ac- 
count of  himself  through  the  day,  and  to 
tell  it  quick,  it  was  held  that  his  statement 
was  properly  admitted.  State  v.  Howard, 
17  New  Hamp.  171. 

174.  Justifiable  inducements.  Saying  to 
a  prisoner  that  it  would  be  better  for  him  to 
confess,  or  words  to  that  effect ;  or  that  if 
he  was  guilty  it  could  not  put  him  in  a 
worse  condition,  and  he  had  better  tell  the 
truth,  will  not  exclude  his  confession.  State 
V.  Nelson,  8  La.  An.  497;  Fouts  v.  State,  8 
Ohio,  N.  S.  98;  contra,  Phillips  v.  People, 
57  Barb.  353;  State  v.  York,  37  New 
Hamp.  175.  See  Hawkins  v.  State,  7  Mo. 
190. 

175.  The  officer  who  had  charge  of  the 
prisoner,  a  slave,  said  to  him,  "  If  you  did 
it,  you  had  better  confess  ;  it  would  be  best 
for  you  to  tell  the  truth ;  truth  is  always  the 
best  policy ;  but  if  you  did  not  kill  him,  we 
don't  want  you  to  say  so."  Held,  that  the 
prisoner's  confessions,  subsequently  made  to 
the  constable  in  the  same  conversation,  were 
admissible  in  evidence.  Aaron  v.  State,  87 
Ala.  106.  And  the  same  was  held  where  a 
friend  of  the  defendant  advised  him  to  con- 
fess that  he  was  guilty,  and  that  it  would  be 
better  for  him,  in  view  of  the  fact  that  the 


sheriff"  and  his  jjosse  then  held  him  in  their 
power  and  further  resistance  must  be  useless. 
Young  V.  Com.  8  Bush,  366;  s.  c.  1  Green's 
Cr.  Keps.  710. 

176.  On  the  trial  of  an  indictment  for 
stealing  three  twenty  dollar  gold  pieces,  the 
property  of  L.,  it  was  proved  that  an  officer 
in  company  with  L.  met  the  defendant,  and 
told  him  that  he  had  a  warrant  for  his  arrest 
for  stealing  L.'s  money;  that  the  defendant 
denied  it;  that  L.  then  said  to  him  there 
was  no  use  in  denying  it,  that  he  had  found 
where  the  defendant  had  passed  two  of  the 
twenty  dollar  gold  pieces,  and  could  prove 
it;  and  that  the  officer  then  told  the  defend-  I 
ant  that  jfhe  had  better  just  own  up  to  ^\ 
Held,  that  the  confession  was  admissible  in 
evidence.     State  v.  Freeman,  13  Ind,  100. 

177.  On  the  trial  of  the  treasurer  of  a  rail- 
road comjDany  for  embezzling  the  funds  of 
the  company,  one  R.,  who  was  a  surety  upon 
his  official  bond,  and  stockholder  in  the 
company,  testified  that  he  told  the  defend- 
ant "  he  had  better  go  to  the  directors  and 
make  a  clean  breast  of  it;"  "  that  it  would 

_^e  for  his  interest  to  go  and  confess  all." 
(witness  "  said  nothing  in  terms  of  a  prose^ 
cution ;"  that  he  told  the  defendant  "to 
commit  no  violence  on  himself,  nor  run 
away ;  that  the  disgrace  was  in  doing  wrong, 
not  in  suffering  punishment  for  it ;  he  had 
better  stay  and  meet  the  punishment."  And 
that  witness  "  advised  the  defendant  as  a 
friend  and  son."  Held,  that  the  confessions 
were  admissible.  Com.  v.  Tuckerman,  10 
Gray,   173. 

178.  When  the  prisoner  was  first  arrested 
on  a  charge  of  murder,  one  of  the  two  con- 
stables who  had  him  in  custody,  said  to  him, 
"  Come,  Jack,  you  might  as  well  out  with 
it."  The  magistrate  interposed,  and  warned 
him  not  to  confess.  Some  hours  afterward 
the  prisoner  confessed  to  B.,  who  had  no 
authority  over  him,  but  with  whom,  and  in 
whose  buggy,  he  was  riding  to  jail,  the  two 
constables  being  near,  but  not  within  hear- 
ing. Held,  that  the  confession  to  B.  was 
admissible.      State  v.  Vaigneur,  5  Rich.  391. 

179.  A  person  being  arrested  by  H.  and  S., 
who  were  officers,  in  the  evening  on  suspi- 
cion of  larceny,  H.  said  to  him   out  of  the 


EVIDENCE. 


145 


Confessions, 


hearing  of  S.,  that  it  would  be  better  for 
him  to  own  up  and  make  a  clean  breast  of 
it  to  S.  The  same  evening  S.  asked  the 
defendant  if  he  knew  anything  about  the 
stolen  property,  to  which  he  replied  that  he 
did  not ;  and  the  same  question  was  put  and 
the  same  answer  received  by  S.  the  next 
morning.  Later  in  the  day,  however,  S. 
found  the  property,  and  told  the  defendant 
so.  Held^  that  certain  statements  which  were 
then  made  to  S.  by  the  defendant,  respect- 
ing the  stolen  property,  tending  to  show  that 
the  defendant  stole  it,  were  admissible  in 
evidence.     Com.  v.  Crocker,  108  Mass.  464. 

180.  The  prisoners  being  in  custody  before 
the  coroner's  jury,  were  told  by  several  of 
the  jury  that  their  statements  were  contra- 
dictory, and  that  if  they  were  guilty  of  the 
homicide  they  had  better  tell  the  truth  and 
confess.  The  following  day  they  made  a 
confession  to  a  person  who  was  not  present 
at  the  inquest.  Held,  that  the  confessions 
were  admissible  in  evidence.  Lynes  v.  State. 
36  Miss.  617. 

181.  A  jDerson  in  jail  on  a  charge  of  larce- 
ny, was  visited  by  the  prosecutor,  who  told 
him  that  it  was  better  in  all  cases  for  the 
guilty  party  to  confess.  The  prisoner  then 
said  he  supposed  he  should  have  to  stay 
there,  whether  he  confessed  or  not.  The 
prosecutor  replied  that  he  supposed  he  would, 
that  in  his  opinion  it  would  make  no  diflEer- 
ence  as  to  legal  proceedings,  and  that  it  was 
considered  honorable  in  all  eases,  if  a  person 
was  guilty,  to  confess.  Held,  that  the  con- 
fession was  admissible.  Com.  v.  Morey,  1 
Gray,  4G1. 

182.  Improper  inducements.  The  owner 
of  a  hog  having  lost  it,  went  into  his  field, 
in  company  with  two  other  white  men,  where 
the  defendant,  a  colored  man  in  his  employ, 
was  at  work,  and  telling  him  that  the  hog 
had  been  stolen,  said  to  him,  "  I  believe 
you  are  guilty ;  if  you  are,  you  had  better 
say  so ;  if  you  are  not,  you  had  better  say 
that."  Thereupon  the  defendant  confessed 
the  larceny.  Held,  that  the  confession  was 
not  admissible  in  evidence  against  him. 
State  v.  Whitfield,  70  N.  C.  356. 

183.  A  person  having  been  committed  by 
a  magistrate  on  a  charge  of  larceny,  was 

10 


being  taken  to  jail  by  a  constable,  when  the 
latter  said  to  him,  "  You  had  as  well  tell  all 
about  it."  After  riding  about  a  mile  further, 
the  prisoner,  without  anything  more  being 
said  to  him  on  the  subject,  confessed.  Held^ 
that  the  confession  was  not  admissible  in 
evidence.     Vaughan  v.  Com.  17  Gratt.  576. 

184.  On  a  trial  for  grand  larceny  in  steal- 
ing a  horse,  the  prisoner  was  convicted 
mainly  on  his  confessions,  which  were  made 
by  him  after  being  told  in  the  presence  of 
the  officer  who  made  the  arrest,  and  while 
he  was  in  custody,  that  "  the  best  he  could 
do  was  to  own  up,"  and  that  the  "  com- 
plainant would  not  be  so  hard  upon  him  if 
he  could  get  his  horse  back."  It  was  held 
that  the  confessions  were  improperly  re- 
ceived in  evidence.  Peoj)le  v.  Phillips,  42 
N.  Y.  200. 

185.  A  confession  made  to  the  officer  who 
had  the  i^risoner  in  custody,  immediately 
after  he  had  been  told  by  the  officer  "  that 
he  did  not  wish  to  advise  him  one  way  or 
the  other,  for  fear  it  might  not  suit  him," 
but  that  "  as  a  general  thing  it  was  better 
for  a  man  who  was  guilty  to  plead  guilty,  for 
he  got  a  lighter  sentence,"  was  held  made 
under  an  improper  inducement  and  inadmis- 
sible.    Com.  V.  Curtis,  97  Mass.  574. 

186.  A  person  having  been  arrested  for 
burning  a  factory,  the  officer  who  had  him  in 
charge  told  him  that  if  he  knew  anything 
about  the  fire,  either  that  B.  had  anything 
to  do  with  it,  or  set  him  on,  the  best  thing 
he  could  do  was  to  own  up  before  his  trial, 
and  that  if  he  wanted  to  say  anything  to 
him  (the  officer),  and  would  tell,  he  would 
help  him  if  he  could.  A  few  days  after  he 
was  imprisoned,  the  owner  of  the  factory 
said  to  him  that  "he  wanted  him  to  tell  the 
truth,  just  as  it  was ;  that  it  would  be  better 
for  him  ;  that  they  had  got  B.,  and  probably 
they  would  both  be  tried  that  day,  and  that 
it  would  be  better  to  tell  the  truth,  just  as 
it  was,  for  if  B.  should  get  the  start  of  him 
it  might  go  hard  with  him;  that  he  was  a 
j^oung  man,  and  it  would  be  better  for  him 
to  tell  it  just  as  it  was."  Held,  that  the  con- 
fession was  not  admissible  in  evidence. 
State  v.  AValker,  34  Vt.  206. 

187.  The  prosecutor,  who   had  been  the 


140 


EVIDENCE. 


Confessions. 


former  master  of  the  defendant,  accused  him 
of  stealing,'  which  he  denied.  The  pros- 
ecutor said  he  knew  better — he  knew  all 
about  it,  and  the  defendant  had  better  own 
up.  The  defendant  asked  whether  if  he 
confessed  he  would  be  let  alone,  and  not  be 
prosecuted.  The  prosecutor  replied  that  he 
would  make  no  promises;  that  he  would  not 
say  whether  he  would  let  him  go  or  not, 
but  that  he  might  as  well  own  up,  and  that 
it  would  be  better  for  him.  The  defendant 
tiien  said  he  would  tell  all  about  it.  No 
other  persons  were  present.  The  prosecutor 
then  reduced  the  confession  to  writing,  no 
one  else  being  present.  The  next  morning 
the  defendant  denied  its  truth,  and  de- 
manded the  delivery  of  the  paper,  but  an 
officer  w'as  called,  and  he  was  arrested. 
Held,  that  the  confession  was  not  competent 
evidence.      State  v.  Brockman,  46  Mo.  566. 

188.  Made  through  fear.  A  j^erson  ac- 
cused of  robbery  was  taken  from  his  home 
at  midnight  by  a  body  of  armed  and  dis- 
guised men,  conveyed  to  a  neighboring 
wood,  and  there  hung  by  the  neck  to  a  tree ; 
and  when  taken  down,  almost  senseless,  he 
confessed  that  he,  with  others,  committed 
the  robbery.  •  Held,  that  his  confession  was 
not  admissible  in  evidence.  Miller  v.  People, 
39  111.  457. 

189.  Obtained  by  threats.  Where  a  per- 
son accused  of  murder  was  taken  before  a 
magistrate,  and  there  sworn  to  tell  the  truth, 
and  told,  "  If  you  do  not  tell  the  truth  I  will 
commit  you,"  it  was  held  that  a  confession 
tlien  made  was  inadmissible  on  the  trial 
against  the  prisoner.  Com.  v.  Harman,  4 
Barr,  269. 

190.  Where  a  slave  accused  of  crime,  and 
threatened  by  persons  armed  with  guns  that 
if  he  did  not  confess  he  would  be  hung, 
confessed  his  guilt,  and  shortly  afterward 
was  taken  before  a  magistrate  in  the  presence 
of  some  of  the  same  persons,  and  interro- 
gated as  to  his  guilt  without  being  pre- 
viously cautioned  by  the  magistrate  of  the 
effect  of  his  replies,  and  again  confessed,  it 
was  held  that  the  last  confession  of  the  ac- 
cused was  not  admissible  in  evidence  against 
him.     Peter  v.  State,  4  Sm.  &  Marsh.  31. 

191.  Threatening  circumstances.  Where 


no  promises  are  made,  or  threats  used  to  ob- 
tain confessions,  they  should  not  be  excluded 
because  the  circumstances  surrounding  the 
defendant  were  threatening.  But  such  cir- 
cumstances are  jiroper  to  be  considered  by 
the  jury  in  determining  the  credibility  of  the 
confessions,  and  what  force  and  effect  should 
be  given  to  them.  Rice  v.  State,  47  Ala.  38; 
s.  c.  1  Green's  Crim.  Reps.  708. 

192.  Where  a  magistrate,  on  the  examina- 
tion of  a  person  accused  of  robbing  another 
of  a  w^atch  the  previous  night,  and  on  whom 
the  watch  was  found,  told  him  that  unless 
he  could  account  for  the  manner  in  which 
he  came  by  the  watch,  he  should  be  obliged 
to  commit  him  to  be  tried  for  stealing  it,  it 
was  held  that  his  subsequent  confession  was 
admissible,  especially  as  the  magistrate  re- 
peatedly warned  him  not  to  commit  himself 
by  any  confession.  State  v.  Cowan,  7  Ired. 
239. 

193.  Where  the  employer  of  a  person 
charged  with  larceny  told  him  that  he  would 
be  dismissed  unless  he  settled  with  the 
owner  of  the  stolen  property,  but  that  if  he 
settled  he  should  be  retained,  and  the  em- 
ployer would  say  nothing  about  it  to  hurt 
him,  it  was  held  that  a  confession  afterward 
made  in  the  same  conversation  was  admis- 
sible.    Com.  V.  Howe,  2  Allen,  153. 

194.  A.,  pursuing  a  person  suspected  of 
theft,  overtook  him  in  the  road,  drew  his 
gun,  and  ordered  him  to  stop,  and  B.,  who 
was  also  armed  with  a  gun,  coming  up,  re- 
marked that  A.  ought  to  have  shot  the  ac- 
cused, when  A.  said  he  should  not  be 
harmed.  The  parties  then  proceeded  upon 
their  return,  and  had  gone  between  two  and 
three  miles,  when  the  prisoner  confsssed. 
Held,  that  his  confession  was  admissible  in 
evidence.  Wilson  v.  State,  3  Heisk.  333; 
s.  c.  1  Green's  Crim.  Reps.  583. 

195.  A  slave  being  accused  of  murder  was 
told  by  the  witness  that  "  he  might  as  well 
tell  all  about  it,"  for  he  was  satisfied,  and 
''  if  you  belonged  to  me  I  would  make  yo 
tell."  The  first  remark  was  repeated  several 
times,  and  the  second  made  angrily,  to  each 
of  which  the  accused  replied,  denying  the 
charge,  but  afterward  he  made  a  full  dis- 
closure of  his  own  accord.     Held,  that  the 


u    J 


EVIDENCE. 


147 


Confessions. 


confession  was  admissible  in  evidence.  State 
V.  Patrick,  3  Jones,  448. 

196.  Obtained  while  the  prisoner  is 
tied.  Confessions  of  guilt  voluntarily  made 
by  the  prisoner  after  he  was  arrested,  and 
whilst  his  hands  and  feet  were  tied,  may  be 
given  in  evidence  against  him.  Franklin  v. 
State,  28  Ala.  9. 

197.  On  a  trial  for  murder  it  appeared  that 
the  crime  was  committed  in  the  night;  that 
the  next  morning  the  accused,  being  arrested 
about  a  mile  from  the  place  of  the  homicide, 
was  told  that  some  one  had  shot  the  de- 
ceased, to  which  he  replied  that  "she  was 
not  shot,  but  knocked  on  the  head;"  that 
eight  or  ten  freedmen  then  tied  the  hands  of 
the  accused  and  took  him  to  where  the  body 
of    the    deceased    was;  that    a    large   and 

/  excited  crowd  gathered  around  him  and  in- 
sisted that  be  should  be  hung,  but  no  threats 
or  promises  were  made  to  induce  a  confes- 
sion ;  and  that  the  accused  then  stated  that 
he  and  the  deceased  had  quarreled,  and 
that  she  had  struck  him,  and  that  he  had 
returned  the  blow,  not  intending  to  kill  her. 
Held^  that  the  admission  of  the  confession 
in  evidence  was  proper.  Cady  v.  State,  44 
Miss.  332. 

198.  A  person  having  been  arrested  on  a 
charge  of  larceny  was  tied  by  the  officer  for 

I  the  purpose  of  securing  him.  Promising  to 
confess  if  he  were  untied,  the  officer  released 
him,  when  he  stated  that  he  broke  into  the 
prosecutor's  house,  and  committed  the  of- 
fense charged.  Held  that  the  confession 
was  admissible  in  evidence.  State  v.  Cruse, 
74  N.  C.  491. 

199.  Where  a  slave  was  arrested,  tied  and 
left  by  his  master  in  charge  of  a  third  per- 
son, to  whom  he  immediately  afterward 
made  a  confession,  it  was  held  that  evidence 
was  admissible  that  the  master  had  always 
been  in  the  habit  of  tying  his  slaves  when 
they  were  charged  with  an  otTense,  and 
whipping  them  until  they  confessed,  and 
that  he  had  often  treated  the  prisoner  in 
the  same  way,  on  the  question  whether  the 
confession  was  induced  by  improper  influ- 
ence.    Spencer  v.  State,  17  Ala.  192. 

200.  Admissible  notwithstanding  im- 
proper influence.     Where  a  promise  of  favor 


is  held  out  to  a  person  charged  with  crime, 
to  induce  him  to  confess,  which  he  does  not  i 
do,  a  confession  made  subsequently,  after 
the  promise  has  ceased  to  be  operative,  is 
admissible  in  evidence  against  him.  People 
V.  Jim  Ti,  33  Cal.  60.  And  although  a 
prisoner  has  previously  made  a  confession 
under  improper  influence,  yet  a  subsequent 
confession  which  is  free  from  such  influence 
will  be  admissible  in  evidence  against  him.  i 
Maples  V.  State,  3  Heisk.  408;  Peter  v. 
State,  4  Smed.  &  Marsh.  31 ;  State  v.  Hash, 
12  La.  An.  895 ;  State  v.  Gregory,  5  Jones, 
315;  State  v.  Scates,  lb.  420;  State  v. 
Fisher,  6  lb.  478;  Thompson  v.  Com.  20 
Gratt.  724.    See  Venable  v.  Com.  24  lb.  G39. 

201.  Where  a  person  after  being  arrested 
on  a  charge  of  murder,  was  induced  by 
hopes  of  benefit,  to  make  a  confession,  and 
five  hours  afterward  made  a  second  confes- 
sion to  the  State's  attorney,  after  being  told 
that  he  must  not  expect  any  favor  in  conse- 
quence of  making  it,  and  was  under  no  obli- 
gation to  do  so  unless  he  wished,  it  was 
held  that  the  second  confession  was  admis- 
sible in  evidence.     State  v.  Carr,  37  Vt.  191. 

202.  The  fact  that  a  negro  woman  slave 
on  trial  for  an  aHempt  to  poison,  had  been 
whipped  by  her  master  the  morning  before 
she  made  a  confession  to  compel  her  to  con- 
fess, held  not  to  make  her  voluntary  confes- 
sion subsequently  made  inadmissible.  Sarah 
V.  State,  28  Ga.  576.  But  where  a  confes- 
sion was  made  by  a  slave  on  the  same  day, 

a    few   hours    after    making    a   confession  * 
which  was  improperly  obtained,  in  the  pres- 
ence of  some  of  the  persons  to  whom  the 
first  confession  was  made,  it  was  held  not 
admissible.     Simon  v.  State,  37  Miss.  288. 

203.  In  Georgia,  it  was  held  on  the  trial 
of  a  white  person  that  the  prosecution  might 
prove  the  confession  of  a  negro,  even  when 
extorted  by  punishment,  not  as  independent 
testimony,  but  to  show  what  was  said  and 
done  by  the  accused,  he  being  present  and 
giving  his  consent  that  the  negro  should 
tell  all  he  knew.  Berry  v.  State,  10  Ga. 
511. 

204.  Proof  of  facts  obtained  through 
confession  which  is  inadmissible.  Where 
a  confession  in  itself  inadmissible,  leads  to 


148 


EVIDENCE. 


Confessions. 


the  discovery  of  a  fact,  so  much  of  such  con- 
fession as  rehites  to  the  fact  may  be  received 
in  evidence.  State  v.  Vaigneur,  5  Rich. 
391 ;  White  v.  State,  3  Heisk.  338.  Thus, 
it  is  competent  to  show  that  property  which 
was  the  subject  or  instrument  of  the  crime, 
was  discovered  through  the  confession  of 
the  prisoner,  although  such  confession  was 
improperly  obtained.  Jordan  v.  State,  32 
Miss.  383;  Belote  v.  State,  36  lb.  96;  Mc- 
Glotherlin  v.  State,  2  Cold.  Tenn.  223: 
Frederick  v.  State,  3  West  Va.  695 ;  People 
V.  Ah  Ki,  20  Cal.  177;  Done  v.  People,  5 
Parker,  364 ;  Duffy  v.  People,  lb.  321 ;  s.  c. 
26  N.  Y.  588 ;  Com.  v.  James,  99  Mass.  438. 

205.  Where  a  confession  was  improjDcrly 
obtained  from  a  female  slave  who  was  ac- 
cused of  the  murder  of  a  child,  and  she  im- 
mediately thereafter  conducted  persons  to  a 
pond  into  which  she  walked  and  brought 
out  the  body  of  the  deceased,  it  was  held 
that  the  fact  that  she  did  so  was  admissible 
in  evidence  against  her;  but  that  although 
it  showed  that  she  was  cognizant  of  the 
homicide,  it  did  not  prove  that  she  com- 
mitted it  or  was  an  accomplice  in  it.  Eliz- 
abeth v.  State,  27  Texas,  329. 

206.  On  the  trial  of  an  indictment  for 
murder  by  poisoning,  it  is  competent  to 
show  that  a  phial  containing  the  poison  was 
found  from  information  derived  from  the 
prisoner,  although  what  the  prisoner  said 
concerning  the  phial  was  inadmissible,  for 
tbe  reason  that  it  was  elicited  by  improper 
influence.     Jane  v.  Com.  2  Mete.  Ky.  30. 

207.  Confession  of  codefendant.  A  con- 
fession is  admissible  against  the  person 
making  it,  although  it  also  implicates  others 
who  are  jointly  tried  with  him.  Fife  v. 
Com.  29  Penn.  St.  429.  But  where  two 
persons  are  tried  together  for  the  same  of- 

.  f  ense,  unless  a  previous  combination,  bjelween 
them  is  proved,  the  confession  of  one  is  not 
admissible  in  evidence  against  the  other. 
State  V.  Hogan,  3  La.  An.  714  ;  State  v. 
Havelin,  6  lb.  167.. 

208.  On  the  trial  of  an  accessory,  the 
confessions  of  the  principal  are  admissible 
for  the  purpose  of  establishing  the  guilt  of 
the  latter.     Lynes  v.  State,  36  Miss.  617. 

209.  Where  on  the  trial  of  an  indictment 


for  larceny,  a  confession  of  the  defendant  is 
proved,  that  shortly  after  the  larceny  he  had 
part  of  the  stolen  property  and  gave  it  tO' 
his  mother,  she  is  a  competent  witness  for 
him  to  prove  that  she  never  received  th& 
property  from  her  son.  Com.  v.  Howe,  2 
Allen,  153. 

210.  Admissibility  of,  how  determined- 
It  is  the  province  of  the  court  to  decide  as 
to  the  admissibility  of  the  confession,  and  V 
of  the  jury  to  estimate  the  degree  of  credit 
due  to  it.  Young  v.  Com.  8  Bush,  366  ; 
State  V.  Andrew,  Phil.  K  C.  205 ;  State  v. 
Davis,  63  N.  C.  578;  State  v.  Fidment,  35 
Iowa,  541 ;  s.  c.  2  Green's  Crim.  Reps.  632. 

211.  Burden  of  proof .  Where  confessions 
have  been  obtained  by  improper  influences, 
the  law  presumes  that  subsequent  con- 
fessions were  made  and  influenced  by  the 
same  hopes  and  fears  as  the  first,  and  this 
pi'esumption  continues  until  it  is  affirma- 
tively established  by  the  prosecution  that  i 
the  influences  under  which  the  original  con- 
fession was  made,  had  ceased  to  operate  be- 
fore the  making  of  the  subsequent  con- 
fession. People  V.  Johnson,  41  Cal.  452 ; 
Nicholson  v.  State,  38  Md.  140 ;  Deathridge 
V.  State,  1  Sneed,  75;  Love  v.  State,  2^ 
Ark.  336. 

212.  How  proved.  The  prisoner  is  en- 
titled to  proof  of  the  whole  confession,  as 
well  that  which  makes  for,  as  that  which 
makes  against  him.  Chambers  v.  State,  26 
Ala.  59.  In  Alabama,  it  was  held  that  a 
slave's  confession  to  his  master,  though  vol- 
untary, could  not  be  given  in  evidence 
against  him,  upon  its  being  shown  that  the 
master  interrupted  him,  and  would  not  let 
him  finish  his  statement.  Williams  v.  State, 
29  Ala.  532.  But  the  defendant  cannot 
have  the  confession  stricken  out  on  the 
ground  that  the  witness  stated  that  he  did 
not  remain  to  hear  the  entire  conversation. 
Bob  V.  State,  33  Ala.  560. 

213.  The  jury  may  believe  part  of  the 
prisoner's  confession,  and  disbelieve  part. 
People  V.  Ruloff,  3  Parker,  401 ;  Brown's 
Case,  9  Leigh,  633;  State  v.  Wedemeyer,  11 
La.  An.  49.  But  if  the  part  of  the  con- 
fession which  goes  in  discharge  of  the  de- 
fendant is  not  disproved,  the  jury  cannot  be 


EVIDENCE. 


149 


Confessions. 


allowed  arbitrarily  to  reject  it,  and  to  go 
upon  the  part  only  which,  criminates  him. 
Crawford  v.  State,  4  Cold.  Tenn.  190.  The 
deductions  of  the  witness  from  the  conver- 
sation are  not  admissible.  Peterson  v.  State, 
47  Ga.  524. 

214.  A  witness  introduced  by  the  prose- 
cution to  prove  the  defendants'  confessions, 
and  who  states,  on  re-examination,  that  he 
has  testified  to  the  substance  of  all  that  each 
of  said  defendants  stated  on  that  occasion, 
but  that  they  might  have  stated  something 
which  he  does  not  recollect,  is  competent  to 
testify  to  the  confessions.  Brister  v.  State, 
26  Ala.  107. 

215.  It  will  be  presumed  that  a  confession 
made  before  a  magistrate  was  reduced  to 
writing;  but  it  must  be  proved  that  the  de- 
fendant signed  it,  or  admitted  it  to  be  cor- 
rect, in  order  to  exclude  parol  proof  of  the 
confession.  State  v.  Eaton,  3  Barring.  554. 
In  Maine,  the  confession  of  the  prisoner,  on 
his  examination  before  the  committing  mag- 
istrate, may  be  proved  either  by  the  rec- 
ord, or  by  oral  evidence.  State  v.  Bowe, 
61  Maine,  171. 

216.  The  confession  referre'd  to  in  the 
second  section  of  the  statute  of  New  York, 
on  which  a  magistrate  is  empowered  to  con- 
vict a  disorderly  person,  means  a  plea  of 
guilty,  or  some  equivalent  acknowledgment, 
not  an  admission  argumentatively  deduced 
by  the  magistrate.  Bennac  v.  People,  4 
Barb.  164. 

217.  Must  be  corroborated.  The  con- 
fessions of  a  party  not  made  in  open  court, 
or  on  an  examination  before  a  magistrate, 
uncorroborated,  and  without  proof  aliunde 
that  a  crime  has  been  committed,  will  not 
justify_a_jmniiction.  People  v.  Hennessey, 
15  Wend.  147;  Robinson  v.  State,  12  Mo. 
592 ;  State  v.  Scott,  39  lb.  424 ;  People  v. 
Thrall,  50  Cal.  415 ;  People  v.  Jones,  31  lb. 
565 ;  Pitts  v.  State,  43  Miss.  472 ;  Rice  v. 
State,  47  Ala.  38 ;  State  v.  Laliyer,  4  Minn. 
368 ;  Terr,  of  Mont.  v.  McClin,  1  Mont.  394 ; 
s.  c.  1  Green's  Crim.  Reps.  705 ;  contra^ 
People  V.  McFall,  1  Wheeler's  Crim.  Cas. 
107;  Stephen  v.  State,  11  Ga.  225;  State  v. 
Cowan,  7  Ired.  239;  Andersou  v.  State,  26 
Ind.  89.     This  rule  is  not  applicable  to  the 


lower  grades  of  crimes  and  misdemeanors. 
State  V.  Gilbert,  36  Vt.  145 ;  and  a  prisoner 
may  be  convicted  on  his  uncorroborated  con-f 
fession,  provided  the  corpus  delicti  be  proved. 
State  V.  Guild,  5  Halst.  163. 

218.  Under  a  statute  providing  that  "  a 
confession  alone,  uncorroborated  by  other 
evidence,  will  not  justify  a  conviction,"  it  is  . 
sufficient  if  the  confession  be  corroborated 
by  a  single  circumstance.  Hoisenbake  v. 
State,  45  Ga.  43. 

219.  Weight  of.  An  instruction  which 
states  that  confessions  are  the  highest  and 
most  satisfactory  proof,  and  draws  no  dis- 
tinction between  confessions  deliberately 
made  and  such  as  occur  in  a  casual  conver- 
sation, is  erroneous.  Brown  v.  State,  32 
Miss.  433. 

220.  The  following  instruction,  in  relation 
to  the  confession  of  the  prisoner,  was  held 
erroneous :  "  If  what  is  said  in  his  own  favor 
is  not  contradicted  by  evidence  offered  by 
the  prosecution,  nor  improbable  in  itself,  it 
will  naturally  be  believed  by  the  jury;  but 
you  are  not  bound  to  give  weight  t©  it,  on 
that  account."  Conover  v.  State,  34  Texas, 
659. 

221.  Waiver  of  objection.  It  is  the  right  > 
of  the  prisoner  to  object  to  confessions,  un-' 
less  the._jcircumstances  under  which  they 
were  made  be  also  proved.  But  if  he  does 
not  object,  and  the  confessions  go  to  the 
jury  without  any  special  inquiry  as  to  the 
circumstances,  he  is  not  entitled  to  a  new 
trial.     Eberhart  v.  State,  47  Ga.  598. 

222.  Reversal  of  decision.  The  decision 
of  the  judge  at  the  trial,  that  the  confession 
of  a  person  accused  of  crime  is  admissible  in 
evidence,  will  not  be  reversed,  excepting  in 
a  case  Of  clear  and  manifest  error.  It  is  not 
a  sufficient  ground  for  the  reversal  of  such  a 
decision,  that  S.  told  the  respondent  he 
wished  him  to  disclose  the  really  guilty  per- 
son, that  he  might  be  punished,  with  a  sug- 
gestion that  if  the  respondent  should  ever 
testify  in  the  case,  they  would  have  to  get 
him  pardoned  for  the  offijnse  for  which  he 
was  then  confined;!  but  that  he  could  not 
promise  him  he  should  receive  any  benefit 
from  his  confession,  j  State  v.  Squires,  48 
New  Hamp.  364. 


150 


EVIDENCE. 


Privileged  Communications. 


Character. 


9.    PRrVILEGED   COMMUNICATION^. 

223.  Attorney  and  client.  On  principles 
of  ])ublic  ])olicy,  communications  from  a 
client  to  liis  attorney  touching  the  subject- 
matter  under  investigation  are  privileged, 
and  will  not  be  allowed  to  be  disclosed  by 
the  attorney.  Where  it  appeared  that  the 
witness  was  unable  to  state  whether  the 
admissions  to  which  he  had  testified  were 
made  to  him  as  counsel  of  the  defendant,  or 
whilst  the  accused  was  under  examination 
as  a  witness  in  his  own  behalf,  it  was  held 
the  duty  of  the  court  to  exclude  the  testi- 
mony of  its  own  motion.  People  v.  Atkin- 
son, 40  Cal.  284.  But  a  communication 
between  attorney  and  client  to  be  privileged, 
must  relate  to  some  legal  right  or  obligation. 
Alderman  v.  People,  4  Mich.  414.  See  State 
V.  Hazelton,  15  La.  An.  72. 

224.  A.,  B.  and  C,  being  jointly  indicted 
for  a  conspiracy  to  defraud  D.,  and  sepa- 
rately indicted  for  forging  the  note  of  D., 
held  a  joint  conference  in  relation  to  their 
defense,  the  counsel  of  A.  and  B.  being  pres- 
ent. On  the  trial  of  C,  B.  testified  in  behalf 
of  the  prosecution  as  to  a  question  be  put 
to  C.  and  the  latter's  answer.  C.  then 
ealled  the  counsel  of  B.  as  a  witness,  and 
asked  him  to  state  what  answer  0.  made 
to  the  question.  Held  that  what  the  coun- 
sel heard  at  the  interview  between  the  par- 
ties was  privileged,  and  that  the  privilege 
extended  to  all  three  of  them.  Cahoon  v. 
Com.  21  Graft.  822. 

225.  A  written  admission  made  by  the 
accused,  solely  with  a  view  to  compromise 
the  matter  with  the  injured  party,  is  not 
admissible  in  evidence  against  him.  Austine 
V.  People,  51  111.  236. 

226.  A  communication  to  an  attorney  is 
not  privileged  when  the  party  in  making  it 
sought  professional  advice  to  enable  him  to 
commit  a  felony.  People  v.  Blakeley,  4 
Parker,  176. 

227.  The  rule  that  communications  be- 
tween client  and  attorney  are  confidential, 
does  not  apply  to  an  accomplice  who  turns 
State's  evidence  under  the  assurance  that 
his  disclosures  will  not  be  used  against  him. 
State  v.  Condry,  5  Jones,  418;  Alderman  v. 
People,  4  Mich.  414. 


228.  Physician.  At  common  law,  the 
information  derived  by  physicians,  in  their 
professional  relations  with  patients,  was 
not  privileged  from  disclosure.  Tlie  statute 
of  New  York  on  the  subject  is  not  confined 
to  communications  made  by  the  patient, 
but  extends  to  all  facts  which  necessarily 
come  to  the  knowledge  of  the  physician 
in  a  given  professional  case.  As  the 
statute  is  of  a  remedial  nature,  it  should 
be  construed  liberally.  Where  a  physician 
has  attended  upon  a  person  under  circum- 
stances calculated  to  induce  the  opinion  that 
his  visit  was  of  a  professional  nature,  and 
the  visit  has  been  so  regarded  and  acted 
upon  by  the  person,  the  relation  of  physician 
and  patient  contemplated  by  the  statute 
exists.     People  v.  Stout,  3  Parker,  670. 

229.  Clergyman.  Admissions  made  to  a 
clergyman  are  competent  evidence,  if  not 
made  to  him  in  his  professional  character  in 
the  course  of  discipline  enjoined  by  his 
church.     People  V.  Gates,  13  Wend.  311. 

230.  Husband  and  wife.  An  admission 
by  the  prisoner  of  her  guilt,  made  by  her  tO' 
her  husband,  and  overheard  by  a  person  in  an 
adjoining  room,  is  not  a  confidential  commu- 
nication entitling  the  prisoner  to  have  it 
excluded.     State  v.  Center,  35  Vt.  378. 

231.  Telegraph  operator.  A  telegraph 
operator  is  bound  to  testify  to  the  contents 
of  a  telegram.  State  v.  Litchfield,  58  Maine, 
267. 

10.  Character. 

232.  Proof  of,  how  regarded.  Evidence 
of  good  character  is  not  only  of  value  in 
doubtful  cases,  but  is  entitled  to  be  consid- 
ered when  the  testimony  tends  very  strongly 
to  establish  the  guilt  of  the  accused.  It  will 
sometimes  itself  create  a  doubt,  when  without 
it  none  would  exist.  Fields  v.  State,  47 
Ala.  603 ;  s.  c.  1  Green's  Crim.  Reps.  635 ; 
Lowenberg  v.  People,  5  Parker,  414 ;  People 
V.  Cole,  4  lb.  35  ;  Hall  v.  State,  40  Ala. 
698;  Jupitz  v.  People,  34111.  516;  People  v. 
Ashe,  44  Cal.  288  ;  People  v.  Feuwick,  45 
lb.  287 ;  People  v.  Kaiua,  lb.  292 ;  People 
V.  Lamb,  2  Keyes,  360 ;  afli'g  54  Barb.  342  ; 
Stover  V.  People,  56  N.  Y.  315  ;  State  v. 
Henry,  5  Jones,  65  ;  Felix  v.  State,  18  Ala. 


EVIDENCE. 


151 


Character. 


730  ;  State  v.  McMurphy,  52  Mo.  251  ;  s.  c. 
1  Green's  Crim.  Reps.  (340.  But  it  is  in  a  case 
of  doubt,  or  to  rebut  the  legal  presumption 
of  guilt,  arising  from  the  possession  of 
stolen  goods,  that  a  good  character  has  the 
most  weight.     State  v.  Ford,  3  Strobh.  517. 

233.  The  following  instructions  were  held 
erroneous:  That  good  character  was  a  fact 
to  be  considered  by  the  jury  like  every  other 
fact  in  the  case,  no  matter  what  the  other 
testimony  might  be;  but  that  when  the 
evidence  was  positive,  leading  to  a  convic- 
tion logically   and   fairly  derived,  of  guilt, 

t  the  simple  fact  that  a  person  possessed  pre- 
vious good  character,  would  be  of  no  avail ; 
that  it  was  only  in  cases  of  well  reasoned 
doubt  arising  out  of  all  the  testimony  that 
evidence  of  good  character  was  available, 
and  then  it  would  be  the  duty  of  the  juiy  to 
find  for  the  prisoner.     People  v.  Ashe,  supra. 

234.  The  weight  that  ought  to  be  given 
to  proof  of  good  character  does  not  depend 
upon  the  grade  of  crime  but  upon  the  force 
of  the  evidence  tending  to  prove  the  charge, 
and  the  motive  for  the  crime.  It  is  there- 
fore erroneous  to  charge  that  in  higher 
crimes  of  great  atrocity,  good  character 
would  not  be  of  the  same  avail  as  in  minor 
oflfenses.  Com.  v.  Webster,  5  Cush.  295 ; 
Harrington  v.  State,  19  Ohio,  N.  S.  284  ; 
or  to  charge  that  such  evidence  can  only  be 
used  in  a  doubtful  case.  Stewart  v.  State, 
22  lb.  477;  s.  c.  1  Green's  Crim.  Reps.  527. 

235.  Time.  Evidence  of  general  good 
character  must  have  reference  to  a  time 
before  and  not  after  the  commission  of  the 
oflense,  and  when  the  defendant  has  intro- 
duced evidence  of  bis  general  good  char- 
acter, the  State,  even  on  cross-examination, 
cannot    inquire    into   his  character   subse- 

j  quent  to   the   time   the   offense   was    com- 
i  raitted.     Brown  v.  State,  46  Ala.  175;  cordra, 
'^Com,  V.  Sackett,  22  Pick.  .394. 
^~236.  It  is  not  competent  for  the  defendant, 
on  a  trial  for  murder,  to  prove  that  other 
prisoners  broke  out  of  the  jail  in  which  he 
was  confined  after  he  was  indicted,  and  that 
certain  fellow  prisoners  tried  to  induce  him 
to  go  out,  which  he  declined  to  do.     Gard- 
iner V.  People,  G  Parker,  155. 
237.  Proof,  how  restricted.     Evidence  of 


character  is  restricted  to  the  trial  of  char- 
acter which  is  in  issue,  and  ought  to  bear 
some  analogy  and  reference  to  the  nature  of 
the  charge.     Young  v.  Com.  6  Bush,  312; 
McDaniel  v.    State,  8   Sm.   &  Marsh.  401  ; 
Com.  V.  Worcester,  3  Pick.  462.     The  prose- 
cution cannot  in  general  enter  into  an  exam- 
ination of  the  particular  acts  of  the  accused, 
even  when  the  latter  has  called  witnesses  in 
support  of  his  general  character.     Smith  v. 
State,  47  Ala.   540 ;  McCarty  v.  People,  51 
111.    231  ;  Gordon    v.    State,    3  Iowa,    410. 
Therefore,  on  the  trial  of  a  female  for  the 
murder  of  a  man,  it  was  held  error  to  per- 
mit the  prosecution  to  prove  that  the  char-^ 
acter  of  the  prisoner  for  chastity  was  bad.  \ 
People  V.  Fair,  43  Cal.  137 ;  s.  c.  1  Green's 
Crim.  Reps.  217.     But  where  a  witness  for    i 
the   defendant   stated   that   '"his  character  [ 
was  divided,"  and  the  attorney  for  the  State  ( 
then  asked  the  witness  what  particular  acts  1 
of  the  defendant's  life  he  had  heard  spoken  ; 
of,  and    the    witness    related   various   acts 
of  petit  larceny  he   had  heard   of,  it  was  ; 
held  that  the  court  did  not  err  in  refusing  i 
to  reject  the  testimony.     State  v.  Arnold,  12  ' 
Iowa,    479.     And   see   Com.    v.    Robinson, 
Thach.  Crim.  Cas.  230. 

238.  EflFect  of   failing    to   prove.     The 
I  failure   of  the  defendant  to  introduce  evi- 
dence  of    good   character  cannot    be   con- 
sidered by  the  jury  as  a  circumstance  against 
him.     Ormsby  v.  People,  53  N.  Y.  472  ;  State 
V.  Upham,  38  Maine,  261  ;  State  v.  O'Neal, 
7  Ired.  251 ;  People  v.  Bodine,  1  Denio,  282. 
But  where  on  a  trial  for  larceny  the  prosecu- 
tion was  allowed,  contrary  to  the  prisoner's 
objection,  to  argue  to  the  jury  that  the  de- 
fendant might    have   shown   former    good! 
character    if  it-  had  existed,    and  that  the( 
prosecution  was  not  permitted  to  introduce \ 
evidence  as  to  character  unless  the  prisoner  \ 
first  introduced  it,  and   the   court  charged  ( 
the  jury  to  the  same  effect,  it  was  held  not  a 
ground    of   exception.     State  v.  Tozier,  49 
Maine,  404. 

239.  No  credit  is  to  be  given  to  the  testi- 
mony of  a  witness  who  has  been  convicted 
of  felony  and  afterward  pardoned,  unless 
corroborated.  U.  S.  v.  Jones,  2  Wheeler's 
Crim.  Cus.  451. 


152 


EVIDENCE. 


Presumptive  Evidence. 


11.  Presumptive  evidence. 

240.  Capacity  for  crime.  Capacity  for 
crime  in  persons  above  the  age  of  seven 
years  is  a  question  of  fact.  The  law  as- 
sumes prima  facie  that  persons  above  four- 
teen years  of  age  are  capable  of  crime,  but 
subjects  that  assumption  to  the  effect  of 
proof.     Stale  v.  Learned,  41  Vt.  585. 

241.  General  presumption  as  to  guilt. 
After  iudietmont  found,  the  accused  is  pre- 
sumed to  be  guilty  for  most  purposes,  except 
tliat  of  a  fair  and  impartial  trial  before  a 
petit  juiy.  People  v.  Dixon,  4  Parker,  654 ; 
State  V.  Mills,  2  Dev.  421.. 

242.  Concealment.  The  fact  that  the 
accused  partially  concealed  himself  when  an 
attempt  was  made  to  identify  him,  is  proper 
for  the  consideration  of  the  jury  as  raising  a 
presumption  of  guilt.  Flanagin  v.  State,  25 
Ark.  92.  Concealment  may  be  evidence  of 
malice,  and  of  a  premeditated  design  to 
commit  the  deed.  Lauergan  v.  People,  6 
Parker,  209 ;  39  N.  Y.  39. 

243.  Giving  false  account.  False  state- 
ments, or  the  falsification  of  the  record  by 
the  defendant  in  relation  to  the  crime  with 
which  he  stands  charged,  afford  a  presump- 
tion of  his  guilt;  but  it  is  competent  for 
him  to  prove  that  he  had  good  reason  to 
believe  at  the  time  that  the  statements  were 
true.     U.  S.  V.  Randall,  Deady,  524. 

244.  Where  on  a  trial  for  arson  it  was 
proved  that  the  defendant  had  in  his  posses- 
sion bank  notes  similar  to  those  stolen  from 
the  house  where  the  arson  was  committed, 
and  that  he  gave  contradictory  accounts  of 
the  manner  in  which  he  came  by  them,  it 
was  held  not  error  to  charge  the  jury  that 
these  contradictions  were  evidence  to  show 
that  be  did  not  come  honestly  by  them. 
State  V.  Gillis,  4  Dev.  606. 

245.  After  the  prosecution  has  proved 
that  the  defendant  gave  a  false  account  to 
the  oflScer  who  arrested  him  as  to  where  he 
was  and  what  he  did  on  the  night  of  the  oc- 
currence, it  is  not  competent  for  the  defend- 
ant to  show  that  he  had  previously  given 
to  others  a  true  account.  Com.  v.  Goodwin, 
14  Gray,  55. 

246.  Trying  to  escape.  The  fact  that 
the  defendant,  after  being  informed  of  the 


cause  of  his  arrest,  escaped,  or  attempted  to 
escape,  is  a  circumstance  which  the  jury 
may  consider  in  determining  his  guilt  or. 
innocence.  People  v.  Strong,  46  Cal.  302;/ 
Fanning  v.  State,  14  Mo.  386 ;  State  v.  Wil- 
liams, 54  lb.  170;  Murrell  v.  State,  46  Ala. 
89.  But  the  presumption  arising  from 
this  circumstance  is  ordinarily  inconclusive. 
State  V.  Arthur,  23  Iowa,  430. 

247.  It  may  be  proved  that  the  accused 
advised  an  accomijlice  to  break  jail  and 
make  his  escape.  People  v.  Rathbun,  21 
Wend.  509.  So  likewise,  it  is  competent  to 
show  that  the  accused  refused  to  escape 
after  being  informed  of  the  charge  against  * 
him,  although  he  was  advised  to  do  so  and 
it  was  in  his  power  to  do  it.     lb. 

248.  The  offer  of  the  prisoner  to  bribe  the 
person  who  has  him  in  custody  to  allow  him 
to  escape,  and  his  attempts  to  escape,  may 
be  proved,  though  the  offer  and  the  attempts 
were  made  when  he  was  in  custody  on 
a  different  charge  from  that  for  which  he 
was  tried,  the  charges  for  both  offenses  de- 
pending on  the  same  state  of  facts.  Dean 
V.  Com.  4  Graft.  541. 

249.  Destruction  of  evidence.  The  sup- 
pression, destruction,  or  concealment  of  evi- 
dence by  the  accused,  is  a  circumstance  from  i-, 
which  the  jury  will  be  justified  in  drawing 
unfavorable  inferences  against  him.  Miller 
V.  People,  39  111.  457. 

250.  Promises  and  threats  made  by  a  third 
person  after  indictment,  to  a  witness  for  the 
prosecution  to  induce  him  to  leave  the  State, 
are  not  admissible  against  the  defendant, 
unless  his  connection  with  such  third  person 
is  otherwise  shown.  But  proof  that  the 
witness  at  the  time  appointed  for  his  de-  ^ 
parture  with  such  third  jjerson,  passed  by 
defendant's  house  and  saw  defendant  stand- 
ing in  his  door — that  defendant  waved  his 
hand  to  him  to  pass  along,  which  he  did  for 

a  short  distance — that  he  saw  the  defendant 
give  such  third  person  $25  for  the  witness, 
and  that  such  third  person  then  carried  the 
witness  away  with  the  defendant's  horse  and 
buggy,  is  competent  to  be  weighed  by  the 
jury.     ]Martin  v.  State,  28  Ala.  71. 

251.  Falsehood  or  silence  of  defendant. 
Falsehood,  evasion,   or  silence,  on  the  part 


EVIDENCE. 


153 


Presumptive  Evidence. 


of  one  suspected  of  crime,  is  evidence  for 
the  consideration  of  the  jury,  on  the  ques- 
tion of  guilt.  State  v.  Reed,  63  Maine,  129; 
s.  c.  3  Green's  Crim.  Reps.  468.  But  decla- 
rations made  in  the  presence  and  hearing  of 
the  defendant  are  not  admissible  in  evidence 
against  him,  unless  it  is  shown  that  he  was 
immediately  concerned,  so  that  his  silence 
may  be  fairly  construed  into  an  admission. 
State  V.  Hamilton,  55  Mo.  520. 

252.  Statements  made  by  a  person  in  the 
presence  of  another,  implicating  the  latter, 
to  which  he  makes  no  reply,  are  admissible 
in  evidence  against  him  on  his  trial  for  the 
crime.  Com.  v.  Galavan,  9  Alien,  271.  But 
one  who  is  in  confinement  on  a  charge  of 
crime,  is  not  bound  to  deny  or  reply  to 
statements  made  between  a  police  officer  and 
another  person  in  the  prisoner's  presence; 
and  the  silence  of  the  latter  will  warrant  no 
inference  against  him.  Com.  v.  Walker,  13 
Allen,  570.  See  Com.  v.  Kenney,  13  Mete. 
235. 

253.  Where  a  prisoner  is  charged  with  an 
offense,  or  declarations  are  made  in  his 
presence  and  hearing  touching  or  affecting 
his  guilt  or  innocence  of  an  alleged  crime, 
and  he  remains  silent  when  it  would  be 
proper  for  him  to  speak,  it  is  for  the  jury 
to  interpret  such  silence.  McGuire  v.  Peo- 
ple, 5  N.  Y.  Supm.  N.  S.  682.  On  a  trial 
of  two  jointly  indicted  for  grand  larceny, 
it  was  proved  that  the  complainant  went  to 
the  place  where  the  prisoners  were  confined 
and  charged  them  with  the  offense,  telling 
the  officers  what  each  had  done  and  describ- 
ing the  money  stolen,  to  which  the  prisoners 
said  nothing.  Upon  searching  one  of  the 
prisoners,  two  parcels  of  money  were  found 
on  him,  one  of  which  answered  the  descrip- 
tion given  by  the  complainant.  The  other 
parcel  the  prisoner  asked  to  have  kept  sepa- 
rate, saying  it  "  was  bar  money."  Ueld,  that 
the  evidence  was  properly  admitted  as  an 
implied  admission  by  the  accused  of  the 
oflfense  charged.  Kelley  v.  People,  55  N. 
Y.  565. 

254.  Silence  showing  unusual  seriousness 
on  the  part  of  one  charged  as  a  participant, 
at  or  about  the  time  of  the  crime,  is  a  cir- 
cumstance  from   which   guilty  knowledge 


may  be  inferred .    But  in  itself,  it  is  entitled  to 
little  weight.     Johnson  v.  State,  17  Ala.  618. 

255.  Failure  to  produce  evidence  in  ex- 
planation. Where  circumstantial  evidence 
strongly  tends  to  suiDport  the  charge,  and  it 
is  apparent  that  the  accused  is  so  situated 
that  he  could  explain  it  if  innocent,  and 
he  fails  to  do  so,  it  will  be  presumed  that 
the  proof  if  produced  by  him,  instead  of 
rebutting,  would  tend  to  sustain  the  charge. 
Com.  V.  Webster,  5  Cush.  395.  But  the  de- 
fendant is  not  required,  in  order  to  avoid  a 
l^resumption  against  him  arising  from  cir- 
cumstantial evidence,  to  produce  as  wit- 
nesses persons  who  may  possibly  know  some- 
thing of  the  matter,  but  only  to  produce 
those  who  are  proved  to  have  been  so  situ- 
ated that  they  must  have  knowledge  which, 
if  divulged,  would  throw  light  on  the  sub- 
ject.    People  V.  McWhorter,  4  Barb.  438. 

256.  On  the  trial  of  an  indictment  for  sell- 
ing spirituous  liquors  without  a  license,  the 
jury  are  justified  in  presuming  that  the 
defendant  had  no  license,  from  his  omis- 
sion to  produce  it.  State  v.  Simons,  17 
New  Hamp.  83. 

257.  When  a  person  accused  of  crime  is 
required  to  show  where  he  was  on  a  certain 
day,  or  to  show  how  hebecatae  possessed  of 
a  given  sum  of  money,  or  article  of  personal 
property,  his  omission  to  produce  such 
evidence  is  not  conclusive  against  him, 
though  it  creates  a  strong  presumption  of 
his  guilt.  It  is  a  question  for  the  jury.  It 
is  therefore  error  in  the  court  to  instruct 
them  that  it  is  conclusive.  Gordon  v.  Peo- 
ple, 33  N.  Y.  501. 

258.  It  is  not  improper  for  the  judge  in 
charging  the  jury  on  a  trial  for  murder  to 
remark  that  the  prisoner,  if  he  was  present 
at  the  homicide,  had  not  been  sworn,  and 
that  a  single  witness  had  related  the  inci- 
dents of  the  killing;  or  that  the  prisoner 
was  not  entitled  to  the  benefit  of  the  most 
innocent  and  merciful  construction  of  his 
motives.     RulofF  v.  People,  5  Lans.  361. 

259.  On  a  trial  for  arson,  the  only  direct 
evidence  of  the  prisoner's  guilt  was  given 
by  his  accomplice,  G.,  who  testified  that  on 
the  night  of  the  arson  he  and  his  confed- 
erates were  at  the  house  of  W.,that  they  went 


154 


EVIDENCE. 


Presumptive  Evidence. 


to  bed  there  at  an  early  hour,  that  they 
afterward  got  up,  committed  the  crime,  and 
then  returned  to  bed  in  the  same  house. 
Tlie  accused  produced  no  evidence  to  show 
that  he  was  not  at  tlie  house  of  W.  on  that 
night.  Tlie  judge  instructed  the  jury  that 
they  might  take  this  omission  into  consider- 
ation as  a  circumstance  which  corroborated 
the  evidence  of  G.  Held  not  error.  People 
V.  Doyle,  31  N.  Y.  578. 

260.  Where  the  son  of  the  defendant  was 
in  his  employ,  and  could  probably  have  ex- 
l)laiued  some  of  the  facts  bearing  against 
him,  if  susceptible  of  explanation,  it  was 
held  that  the  omission  of  the  defendant  to 
make  his  son  a  witness  was  a  proper  subject 
of  comment  by  counsel,  and  to  be  considered 
by  the  jury.     Com.  v.  Clark,  14  Gray,  367. 

261.  Neglect  to  make  special  defense. 
Where  the  court  refused  to  charge  that 
"the  fact  that  defendant  has  offered  no 
evidence  is  in  no  way  to  be  taken  as  an  ad- 
mission of  guilt,"  but  charged  them  that 
"  all  circumstances  against  the  prisoner  with- 
in his  power  to  explain,  which  he  refuses  to 
do,  are  to  be  taken  and  weighed  by  the  jury 
as  circumstances  against  the  prisoner,"  it 
was  held  error.  State  v.  Carr,  25  La.  An. 
407. 

262.  Where  the  court  charged  that  the 
fact  that  the  prisoner  had  neglected  or  failed 
to  introduce  evidence  as  to  his  previous 
good  character  was  an  element  in  the  case 
which  the  jury  had  the  right  to  take  into 
consideration  in  determining  his  guilt  or 
innocence,  it  was  held  error  for  which  he 
was  entitled  to  a  new  trial.  Donoghoe  v. 
People,  6  Parker,  130. 

263.  Where  the  judge  told  the  jury  that 
"  nothing  was  to  be  presumed  against  the 
defendant  herself  for  not  testifying  in  her 
own  behalf;  but  that  the  failure  of  a  de- 
fendant to  produce  evidence  which  it  was 
in  his  power  to  produce,  to  meet  the  evi- 
dence adduced  by  the  prosecution,  was  a 
competent  and  proper  matter  for  them  to 
weigh  in  considering  the  question  of  his 
guilt,''  it  was  held  error.  Com.  v.  Harlow, 
110  Mass.  411. 

264.  The  counsel  for  the  prosecution  com- 
mented to  the  jury  adversely  to  the  defend- 


ant upon  the  fact  that  the  defendant  did 
not  interpose  the  defense  of  an  aliM  before 
the  examining  magistrate,  to  which  the 
defendant's  counsel  objected.  The  court  in 
overruling  the  oVyection  remarked  that  "  it 
was  the  duty  of  a  defendant,  when  he  had  a 
good  defense  in  the  nature  of  an  alibi^  to  \ 
interpose  the  defense  at  the  earliest  moment 
possible,  and  that  a  defendant  should  offer 
his  defense  of' an  aliM  before  the  examining 
magistrate,  with  the  view  to  saving  himself 
anxiety  and  trouble,  and  the  people  the 
great  expense  of  a  trial."  Held  that  as  the 
foregoing  was  said  by  the  court  in  the 
presence  of  the  jury,  it  was  to  be  regarded 
as  addressed  to  them,  and  that  it  was  error. 
Sullivan  v.  People,  31  Mich.  1. 

265.  Defendant  not  testifying  in  his 
own  behalf.  No  inference  of  guilt  can  be 
drawn  against  the  prisoner  from  his  declin- 
ing to  avail  himself  of  the  privilege  confer- 
red upon  him  to  testify  in  his  own  behalf. 
People  V.  Tyler,  36  Cal.  522;  People  v. 
Anderson,  39  lb.  703 ;  contra,  State  v. 
Bartlett,  55  Maine,  200 ;  State  v.  Laurence, 
57  lb.  574;  State  v.  Cleaves,  59  lb.  298.  In 
Vermont,  where  the  court,  when  requested, 
did  not  prevent  the  prosecuting  counsel 
from  arguing  to  the  jury  that  the  omission 
of  the  prisoner  to  testify  was  evidence 
against  him,  it  was  held  that  it  was  such 
error  and  irregularity  as  to  require  a  new 
trial.  State  v.  Cameron,  40  Vt.  555.  In 
Michigan,  it  was  held  error  in  the  court  to 
permit  counsel  to  argue  to  the  jury  that  the 
omission  by  a  husband  to  call  his  wife  as  a 
witness,  the  statute  making  her  competent  to 
testify,  was  a  circumstance  tending  to  prove 
his  guilt.     Knowles  v.  People,  15  Mich.  408. 

266.  Where  the  prisoner,  when  testifying 
as  a  witness  in  his  own  favor,  fails  to  give 
any  explanation  of  a  material  fact  or  circum- 
stance, the  same  presumption  arises  from  his 
failure  that  would  arise  from  a  failure  to 
give  the  explanation  by  another  witness  if 
in  his  power  so  to  give  it.  Stover  v.  Peo- 
ple, 50  N.  Y.  315. 

267.  Conduct  of  defendant.  The  con- 
duct, demeanor,  and  expressions  of  the  ac- 
cused, at  or  about  the  time  of  the  offense 
with  which  he  is  charged,  are  for  the  con- 


EVIDENCE. 


15n 


Presumptive  Evidence. 


sideration  of  the  jury.     Blount  v.  State,  49 
Ala.  381 ;   Tyner  v.  State,  5  Humph.  383. 

268.  When  the  marriage  of  the  parties 
has  been  shown,  evidence  is  admissible  of 
the  ■v^'ife's  acts  in  the  usual  course  of  domes- 
tic affairs  at  the  place  where  they  cohabit,  to 
show  that  the  tenement  so  occupied  is  kept 
by  the  husband.  Com.  v.  Hurley,  14  Gray, 
411. 

269.  Condition  of  clothes.  Whenever 
evidence  of  the  condition  of  clothes  or 
other  personal  property  is  competent,  their 
condition  may  be  described  by  witnesses 
without  producing  the  articles.  The  corre- 
spondence between  boots  and  foot-prints  is 
a  matter  to  which  any  person  who  lias  seen 
both  may  testify.  Com.  v.  Pope,  103  Mass. 
440. 

270.  On  the  trial  of  an  indictment  for 
procuring  another  to  burn  a  meeting  house 
by  means  of  kerosene  oil,  which  was  fur- 
nished by  the  prisoner,  it  was  held  compe- 
tent to  prove  that  there  were  stains  of 
kerosene  oil  on  the  shirt  of  the  accomplice 
when  he  set  the  fire.  State  v.  Kingsbury, 
58  Maine,  338. 

271.  Motive.  Where  it  is  proved  that  a 
crime  has  been  committed,  and  the  circura- 

l  stances  point  to  the  accused,  facts  tending 
to  show  a  motive,  though  remote,  are  admis- 
sible.    Baalam  v.  State,  17  Ala.  451. 

272.  Proof   of  a  previous   personal  difB- 
1-    culty   between   the   accused   and  the  com- 
plainant is  proper  for  the  consideration  of 
the  jury  on  the  question  of  motive.     Breen 
V.  People,  4  Parker,  380. 

273.  On  a  trial  for  an  attempt  to  murder 
by  poison,  evidence  was  given  that  a  crim- 
inal intimacy  had  for  some  time  prior  to  the 
attempt  existed  between  the  prisoner  and 
the  wife  of  the  subject  of  the  alleged 
attempt,  and  that  she  was  sought  to  be  used 
by  the  prisoner  as  an  instrument  in  the 
attempt.  Held  competent  as  bearing  upon 
the  means  and  opportunity  to  commit  the 
offense  and  upon  the  question  of  motive. 
Templeton  v.  People,  27  Mich.  501. 

274.  On  a  trial  for  murder  it  is  not  com- 
petent to  prove  in  order  to  show  that  the 
act  was  committed  under  tlie  influence  of 
an  "insane  frenzy,"  that  tlie   prisoner  was 


informed  of  the  infidelity  of  his  wife  some 
time  previous  to  the  alleged  murder.  San- 
chez V.  People,  4  Parker,  535  ;  23  N.  Y.  147. 

275.  Guilty  knowledge  and  intent. 
Where  the  ch-iracter  of  an  act  depends 
upon  the  intention  with  which  it  was  done, 
the  ignorance  of  the  person  doing  it  may 
be  considered  on  the  question  of  his  guilt. 
State  V.  Sparks,  27  Texas,  705. 

276.  An  unanswered  letter  found  in  the 
pocket  of  the  accused  when  he  was  arrested 
is  not  admissible  in  evidence  against  him. 
People  V.  Green,  1  Parker,  11. 

277.  The  conversion  of  property  is  a  cir- 
cumstance which,  in  connection  with  other 
facts,  the  jury  may  consider  to  determine 
the  intent  with  which  the  possession  was 
obtained.     Long  v.  State,  1  Swan,  287. 

278.  Evidence  that  some  of  the  property 
which  the  defendant  was  accused  of  having 
obtained  by  means  of  threats,  from  A.,  was 
afterward  found  concealed  in  the  house  of 
the  defendant,  was  held  to  be  admissible  as 
tending  to  show  guilty  knowledge  and  in- 
tent.    State  V.  Bruce,  30  Maine,  72. 

279.  Proof  that  a  grocer  sold  liquor,  and 
that  it  was  drunk  on  the  premises,  is  pre- 
sumptive evidence  that  it  was  with  his 
consent.     Casey  v.  State,  6  Miss.  646. 

?80.  On  a  trial  for  stealing  a  slave,  it  was 
held  that  the  prosecution  might  give  in 
evidence  a  memorandum  of  the  names  of 
the  owners  of  slaves,  with  whopi  the  de- 
fendant was  proved  to  have  been  in  com- 
munication, written  in  pencil  and  found  in 
the  pocket  book  of  the  defendant,  and 
taken  from  him,  although  it  was  not  shown 
to  be  in  his  handwriting.  Whaley  v.  State, 
11  Ga.  133. 

281.  Where  a  shot  discharged  at  one 
injuries  another,  who  is  at  the  time  known 
to  be  in  such  a  position  that  his  injury  may 
be  reasonably  apprehended  as  a  probable 
consequence  of  the  act,  the  law  holds  the/ 
intent  to  have  embraced  the  victim ;  and 
the  principle  is  the  same  where  one  is  pur- 
posely shot,  under  the  mistaken  belief  that 
he  is  a  different  person.  Callahan  v.  State, 
31  Ohio,  N.  S.  306. 

282.  Malice.  Malice  in  law,  is  the  doing 
of  an   act   wrongful   in   itself  without  just 


156 


EVIDENCE. 


Presumptive  Evidence. 


cause  or  excuse.  It  is  presumed  from  an 
assault  with  an  instrument  likely  to  produce 
death,  in  the  absence  of  proof  to  the  con- 
trary.    State  v.  Declvlotts,  19  Iowa,  447. 

283.  Malice  aforethought  may  be  implied 
from  circumstances.  Intent  to  maim  or  dis- 
figure, may  likewise  be  presumed  from  cir- 
cumstances; and  it  is  not  necessary  to  prove 
antecedent  grudges,  threatenings,  or  an 
express  design.  State  v.  Irwin,  1  Hayw. 
130. 

284.  Marriage.  Evidence  that  parties 
cohabited  together  as  husband  and  wife,  is 
competent  to  i:)rove  their  marriage,  excepting 
in  indictments  for  bigamy  and  the  like, 
where  the  marriage  is  the  foundation  of  the 
crime  to  be  punished.  People  v.  Anderson, 
26  Cal.  129. 

285.  Prima  facie,  the  fact  of  a  marriage 
celebrated  according  to  the  forms  of  a 
religious  denomination,  embraces  the  assent 
of  the  married  parties  to  take  each  other  as 
husband  and  wife ;  and  it  is  incumbent  on 
the  party  disputing  the  marriage  to  negative 
such  assent.  Fleming  v.  People,  27  N.  Y. 
329. 

286.  Coercion  of  wife.  A  wife  will  be 
presumed  to  have  acted  under  the  coercion 
of  her  husband  in  committing  an  offense, 
when  he  was  at  the  time  near  enough  for 
her  to  be  under  his  immediate  influence  and 
control,  though  not  in  the  same  room.  C9m. 
V.  Munsey,  112  Mass.  287.  But  if  she  formed 
the  intent  to  commit  the  crime,  and  actually 
commenced  it  in  his  absence  and  without 
his  knowledge,  the  fact  that  he  afterward 
arrived  and  aided  in  completing  it,  would 
not  create  the  presumption  that  she  acted 
under  his  compulsion.  The  question  of 
compuhion  is  to  be  determined  by  the  jury. 
Quinlan  v.  People,  6  Parker,  9. 

287.  Independent  facts.  When  indejiend- 
ent  facts  and  circumstances  are  relied  upon 
to  identify  the  accused,  and  taken  together, 
are  regarded  as  a  sufficient  basis  for  a  pre- 
sumption of  his  guilt  beyond  a  reasonable 
doubt,  each  essential  independent  fact  in 
the  chain  or  series  of  facts  relied  upon  to 
establish  the  main  fact,  must  also  be  estab- 
lished beyond  a  reasonable  doubt.  People 
v.  Phipps,  39  Cal.  326. 


288-  General  presumptions.  Where  the 
defendant's  neighbors  testified,  that  for  a 
considerable  period  a  large  number  of  per- 
sons had  been  in  the  habit  of  going  to  his 
house,  many  more  than  went  to  the  houses 
of  other  persons  in  the  same  neighborhood, 
and  many  more  than  the  business  in  which 
he  was  ostensibly  engaged  required,  that 
many  of  those  persons  came  from  other 
towns,  and  many  called  there  at  unusual 
hours  and  under  suspicious  circumstances, 
it  was  held  that  there  was  presumptive 
evidence  that  the  defendant's  house  was  a 
place  of  public  resort.  State  v.  Pratt,  84 
Vt.  323. 

289.  On  a  trial  for  depositing  scurrilous 
postal  cards  in  the  mail,  the  cards  given  in 
evidence,  showed  mistakes  in  spelling.  Held 
proper  to  prove  other  writings  of  the  de- 
fendant which  contained  similar  errors,  in 
order  to  connect  him  with  the  cards;  and 
that  an  expert  might  point  out  to  the  jury, 
peculiarities  in  such  writings  corresponding 
with  those  in  the  cards.  U.  S.  v.  Chamber- 
lain, 12  Blatch.  390. 

290.  Where  the  prisoner  voluntarily  wrote, 
swore  to,  and  delivered  to  the  district 
attorney  a  letter,  with  the  intention  of  clear- 
ing himself  by  charging  the  murder  it  was 
alleged  he  had  perpetrated  upon  one  M., 
it  was  held  that  the  letter  was  admissible 
in  evidence  against  the  prisoner  on  his  trial, 
whether  he  composed  it,  or  only  adopted  it 
after  it  was  composed  and  written  by  a 
fellow  prisoner.  Gardiner  v.  People,  6 
Parker,  155. 

291.  On  the  trial  of  an  information  for 
uttering  a  forged  power  of  attorney,  two 
letters  were  given  in  evidence,  proved  to  be 
in  the  handwriting  of  the  defendant;  one 
addressed  to  a  witness  in  the  case,  seeking 
to  impress  him  with  the  defendant's  version 
of  the  facts,  urging  him  to  help  the  defend- 
ant, and  to  speak  to  the  jurymen ;  the  second 
letter  was  addressed  to  another  person, 
asking  him  to  labor  with  the  jurymen,  and 
to  promise  them  that  they  should  be  well 
paid.  Held  competent.  People  v.  Marion, 
29  Mich.  31. 

292.  When  the  prosecution  seeks  to  draw 
a  certain  inference   from  a  sriven  state  of 


EVIDENCE. 


157 


Presumptive  Evidence. 


Proof  of  Other  Offense. 


facts,  it  is  incumbent  on  them  t©  show  that 
such  inference  is  necessary  and  unavoidable 
from  the  facts  proved.  U.  S.  v.  Furlong, 
2  Bis.  97;  s.  c.  1  Green's  Crim.  Reps.  440. 
Proof  that  a  person  had  in  his  ijossession 
and  owned  a  memorandum  book  does  not 
authorize  the  inference  that  he  can  write 
and  did  write  what  was  contained  in  the 
book,  as  a  basis  for  comparison  of  handwrit- 
ing to  prove  the  forgery  by  him  of  another 
instrument.  Van  Sickle  v.  People,  29  Mich. 
61. 

293.  On  a  trial  for  murder,  photographs  of 
alleged  accomplices,  taken  after  their  death 
by  drowning,  may  be  shown  to  witnesses  in 
corroboration  of  other  evidence  identifying 
their  bodies.  Ruloff  v.  People,  45  N.  Y. 
213. 

294.  Where  an  inquiry  into  the  conditi6n 
of  a  person's  health  is  material,  any  account 
given  by  such  person  relative  to  health  is 
evidence  of  complaints  and  symptoms,  but 
not  to  charge  any  other  person  as  to  the 
cause  of  those  sufferings;  nor  is  such  an 
account  evidence  of  the  truth  of  what  has 
been  declared.  People  v.  Williams,  3  Parker, 
84,  per  Clarke,  J. 

295.  The  power  of  a  street  lamp  to  emit 
rays  of  light  and  diffuse  them,  four  months 
after  a  homicide,  is  not  competent  evidence 
of  its  power  in  that  respect  at  the  time  of 
the  killing,  without  showing  that  all  the 
conditions  affecting  its  power  were  the  same 
on  both  occasions.  Yates  v.  People,  33  N. 
Y.  500. 

296.  On  the  trial  of  an  indictment  against 
an  overseer  of  highways,  the  fact  that  he 
accepted  his  appointment  may  be  proved  by 
parol  evidence  that  he  acted  as  such  over- 
seer.    State  V.  Stroope,  20  Ark.  202. 

297.  Presumption  of  bias  from  relation- 
ship. The  mother  of  the  prisoner  having 
been  called  to  prove  an  alibi,  the  court 
charged  the  jury  that  the  law  regarded  with 
suspicion  the  testimony  of  near  relations 
when  testifying  for  each  other.  Held  not 
erroneous.     State  v.  Nash,  8  Ired.  35. 

298.  Non-existence  of  facts  on  the  rec- 
ord. As  the  proceedings  of  a  court  are  only 
known  by  its  records,  if  the  facts  insisted 
on  by  the  defendant  for  arresting  the  judg- 


ment do  not  appear  on  the  records  of  the 
court,  the  presumption  is  that  they  do  not 
exist,  especially  after  the  lapse  of  three 
years.     Davis  v.  McDonald,  42  Ga.  205. 

299.  Rebuttal.  Where  in  commencing  a 
criminal  prosecution,  the  circumstances  are 
calculated  to  excite  doubts  as  to  the  truth 
of  the  charge,  and  to  create  an  impression 
unfavorable  to  the  principal  witness,  the 
prosecutor  may  show  any  circumstance 
which  will  have  a  tendency  to  rebut  these 
presumptions.  People  v.  Lohman,  2  Barb. 
216 ;  1  K  Y.  379. 

12.  Proop  op  other  offense. 

300.  Not  in  general  admissible.  Evi- 
dence of  the  prisoner's  guilty  participation 
in  the  commission  of  a  crime  wholly  dis- 
connected from  that  for  which  he  is  put 
upon  his  trial,  is  not  as  a  general  rule  ad- 
missible. Shaffner  v.  Com.  72  Penn.  St.  60; 
s.  c.  2  Green's  Crim.  Reps.  504  ;  Dunn  agst. 
State,  2  Ark.  229 ;  State  v.  Shuford,  69  N. 
C.  486;  s.  c.  1  Green's  Crim.  Reps.  247; 
People  V.  Jones,  31  Cal.  565;  32  lb.  80; 
Watts  V.  State,  5  West  Va.  532;  s.  c.  2 
Green's  Crim.  Reps.  676.  Whether  a  person 
on  a  trial  for  felony  can  consent  to  the  ad- 
mission of  evidence  of  a  distinct  felony 
committed  by  him  at  another  time — query. 
People  V.  King,  1  Wheeler's  Crim.  Cas.  33. 

301.  On  the  trial  of  an  indictment  for  the 
larceny  of  bank  bills,  alleged  to  have  been 
committed  on  the  16th  of  December,  the 
prosecution  after  proving  the  commission  of 
the  offense  on  that  day,  Avere  allowed  to 
prove  that  the  parties  being  together  on  the 
following  day,  the  defendant  enticed  the 
prosecuting  witness  into  an  alley,  and  there 
knocked  him  down,  beat  and  roljlied  him  of 
additional  money.  Held  error.  Bonsall  v. 
State,  35  Ind.  460. 

302.  On  a  trial  for  murder,  the  prosecution 
gave  in  evidence  the  minutes  of  the  grand 
jury  showing  that  an  indictment  had  been 
ordered  by  that  body  against  the  accused 
upon  the  complaint  of  the  deceased  for 
blackmailing,  without  proof  tending  to 
show  that  the  prisoner  had  any  knowledge 
of  such  action  by  the  grand  jury.  Held 
error,  the  evidence  having  no  tendency  to 


158 


EVIDENCE. 


Proof  of  Other  Offense. 


Testimony  of  Accomplice. 


show  a  motive,  and  its  only  effect  being  to 
prove  that  the  accused  had  committed  an- 
other crime.  Stokes  v.  People,  53  N,  Y. 
164. 

303.  An  accomplice  cannot  be  permitted 
to  testify  that  the  prisoner  proposed  to  him 
to  join  him  in  committing  other  crimes,  or 
that  the  prisoner  in  the  same  conversation 
said  that  he  was  going  to  commit  other 
crimes.     Kinchelow  v.  State,  5  Humph.  9. 

304.  May  be  received  when  it  tends  to 
prove  the  crime  charged.  If  the  evidence 
has  a  direct  tendency  to  prove  the  particular 
crime  charged,  it  is  admissible,  although  it 
also  tends  to  prove  the  commission  of  an- 
other separate  and  distinct  offense.  State 
V.  Harrold,  38  Mo.  496;  State  v.  Braun- 
schweig, lb.  587;  State  v.  Daubert,  43  lb. 
243. 

305.  The  plaintiff  in  error  was  indicted 
and  tried  for  forging  a  check  upon  a  bank, 
purporting  to  be  drawn  by  C.  &  Co.  The 
teller  was  asked  on  the  trial,  whether  the 
said  firm  kept  an  account  at  that  bank,  to 
which  he  replied  that  it  did  not.  The  check 
was  shown  to  the  witness,  and  he  was  then 
asked  if  he  ever  saw  the  check  before,  and 
if  it  was  presented  to  him  at  the  bank.  The 
witness  said  it  was  his  impression  that  it  was 
presented  to  him.  He  was  then  inquired  of 
whether  C.  &  S.,  the  payees  of  the  check, 
had  an  account  at  the  said  bank  at  the  date 
of  the  check,  and  the  witness  replied  in  the 
negative.  It  was  urged  in  the  argument 
that  the  evidence  of  the  teller  had  a  tendency 
to  prove  a  different  offense  from  that  charged, 
viz. :  obtaining  goods  by  false  pretenses. 
Held.,  that  the  attempt  to  obtain  the  prop- 
erty of  C.  &  S.,  by  this  forged  check,  was, 
in  a  minor  sense,  the  crime  of  false  pretenses ; 
that  if  the  evidence  tended  to  prove  the 
minor  offense,  it  was  because  the  greater 
crime  included  the  lesser;  and  that  the  fact 
that  neither  the  persons  purporting  to  be  the 
drawers,  nor  the  indorsers  of  the  check  had 

'  any  account  with  the  bank,  was  a  part  of  the 
history  of  the  check,  and  so  became  con- 
nected with  the  alleged  crime.  Watson  v. 
People,  64  Barb.  130. 

306.  Is  admissible  on  the  question  of 
motive  and  intent.     Separate  and  distinct 


felonies  may  be  proved  for  the  purpose  of 
establishing  the  existence  of  a  motive  to 
commit  the  crime  in  question,  even  though 
an  indictment  is  then  pending  against  the 
prisoner  for  such  other  felonies.  People  v. 
Wood,  3  Parker,  681 ;  People  v.  Stout,  4  lb. 
71  ;  lb.  133  ;  Baker  v.  State,  4  Ark.  56  :  Yar- 
borough  V.  State,  41  Ala.  405 ;  Defrese  v. 
State,  3  Heisk.  53;  s.  c.  1  Green's  Crim. 
Reps.  356.  Therefore,  on  the  trial  of  an  in- 
dictment for  stabbing  with  intent  to  mur- 
der, it  is  competent  to  show  that  the  de- 
fendant attempted  to  poison  the  person 
stabbed.     State  v.  Patza,  3  La.  An.  513. 

307.  Offense  different  from  that  before 
grand  jury.  It  is  competent  to  show  that 
the  offense  of  which  the  defendant  was  con- 
victed is  a  different  offense  from  that  which 
was  proved  before  the  grand  jury  who  found 
the  indictment.     Spratt  v.  State,  8  Mo.  347. 

13.  Testimony  of  accomplice. 

308.  When  admissible.  The  acts  of  an 
accomplice  are  not  evidence  against  the  ac- 
cused, unless  they  constitute  a  part  of  the 
res  gestce,  and  occur  during  the  pendency  of 
the  criminal  enterprise,  and  in  furtherance 
of  its  objects.  Although  the  fiiglit  of  a  per- 
son suspected  of  crime  is  a  circumstance  to 
be  weighed  by  the  jury,  as  tending  to  prove 
a  consciousness  of  guilt,  yet  the  flight  of  one 
of  several  conspirators  is  not  admissible  in 
evidence  as  a  circumstance  tending  to  prove 
the  guilt  of  all.  People  v.  Stanley,  47  Cal. 
118.     See  People  v.  Collins,  48  lb.  377. 

309.  Need  not  be  corroborated.  A  con-  • 
viction  may  be  had  upon  the  uncorroborated 
testimony  of  an  accomplice.  People  v.  Cos- 
tello,  1  Denio,  85;  Wixson  v.  People,  5 
Parker,  119;  People  v.  Cook,  lb.  351; 
People  V.  Haynes,  55  Barb.  450;  People  v. 
Lawton,  56  lb.  136 ;  People  v.  Dyle,  31 
N.  Y.  578;  People  v.  Jenness,  5  Mich.  305; 
Gray  v.  People,  36  111.  344 ;  State  v.  Wal- 
cott,  31  Conn.  373 ;  Dawley  v.  State,  4  Ind. 
128 ;  Stocking  v.  State,  7  lb.  336  ;  contra, 
People  v.  Reeder,  1  Wheeler's  Crim.  Cas. 
418;  Upton  V.  State,  5  Iowa,  465  ;  State  v. 
Pepper,  11  lb.  347;  People  v.  Ames,  39  Cal. 
403;  People  y.  Melvane,  lb.  614;  Lopez  v. 
State,    34  Texas,  133.     But  evidence  from 


EVIDENCE. 


159 


Testimony  of  Accomplice. 


such  a  source  should  be  received  with  great 
caution.  Coats  v.  People,  4  Parker,  662 ; 
State  V.  Walcott,  21  Conn.  272  ;  State  v. 
Stebbins,  29  lb.  463.  In  Louisiana,  although 
the  testimony  of  an  accomplice  requires 
some  confirmation  (State  v.  Cook,  20  La.  An. 
145),  yet  the  jury  may  convict  on  his  testi- 
mony alone.  State  v.  Prudhomrae,  25  lb. 
522.  In  Georgia,  the  rule  that  the  defend- 
ant cannot  be  convicted  upon  the  testimony 
of  an  accomplice  alone,  does  not  hold  in  the 
case  of  a  misdemeanor.  Parsons  v.  State, 
43  Ga.  197  ;  Crisson  v.  State,  51  lb.  597.  In 
Alabama  and  Kansas,  to  convict  on  the  tes- 
timony of  an  accomplice,  it  need  not  be  cor- 
roborated in  every  material  part.  Mont- 
gomery V.  State,  40  Ala.  684 ;  Craft  v.  State, 
3  Kansas,  450. 

310.  Ought  in  general  to  be  corrobo- 
rated. As  a  general  rule,  in  felonies,  the 
jury  ought  not  to  convict  on  the  uncorrobo- 
rated evidence  of  an  accomplice ;  and  even 
in  misdemeanors,  unless  the  accomplice  is 
corroborated,  or  there  are  such  circum- 
stances in  the  case  as  to  relieve  him  from  sus- 
picion, it  is  safer  to  reject  his  testimony. 
U.  S.  V.  Harries,  2  Bond,  311  ;  U.  S.  v. 
Smith,  lb.  333  ;  People  v.  Haynes,  55  Barb. 
450.  It  is  the  duty  of  the  court  so  to  ad- 
vise the  jury.  Flanagin  v.  State,  25  Ark. 
92 ;  Ray  v.  State,  1  Iowa  (Greene),  316 ;  Al- 
len v.  State,  10  Ohio,  N.  S.  287.  In  Iowa, 
under  the  statute  (Revision,  §  4102),  a  con- 
viction cannot  be  had  upon  the  testimony  of 
an  accomplice,  unless  he  be  corroborated  by 
such  other  evidence  as  shall  tend  to  connect 
the  defendant  with  the  commission  of  the  of- 
fense. State  v.  Moran,  34  Iowa,  453 ;  s.  c.  1 
Green's  Crim.  Reps.  749. 

311.  The  following  instruction  was  held 
correct:  That  it  was  competent  for  the  jury 
to  convict  on  the  testimony  of  an  accom- 
plice alone  ;  but  that  it  was  unsafe  to  rely 
on  such  evidence  without  confirmation.  That 
the  corroborating  evidence  must  relate  to 
some  portion  of  the  testimony  material  to 
the  issue,  and  connect  the  defendant  with 
the  offense  charged.  Com.  v.  Brooks,  9 
Gray,  299 ;  Com.  v.  Price,  10  lb.  472. 

312.  In  California  an  accomplice  must  be 
corroborated   by  evidence,  which  of  itself. 


and  without  the  aid  of  the  testimony  of  the 
accomplice,  tends  in  some  degree  to  connect 
the  defendant  with  the  commission  of  the 
ofl'ense.  People  v.  Thompson,  50  Cal.  480. 
It  is  otherwise  as  to  a  feigned  accomplice. 
People  V.  Farrell,  30  lb.  316. 

313.  Where  counsel  for  the  prosecution 
assume,  and  claim,  that  a  witness  is  an  ac- 
complice, an  instruction  of  the  court  that  if 
the  jury  believe  that  the  witness  was  not  an 
accomplice,  his  testimony  need  not  be  cor- 
roborated, is  erroneous.  Com.  v.  Desmond, 
5  Gray,  80. 

314.  Where  an  accomplice  and  his  wife 
are  witnesses  against  the  accused,  it  is  not 
error  in  the  judge  to  instruct  the  jury  that 
in  determining  the  credibility  of  the  testi- 
mony of  the  husband,  they  may  take  into 
consideration  that  of  the  wife.  Haskins  v. 
People,  16  N.  Y.  344. 

315.  What  deemed  a  corroboration.  The 
statement  of  the  prisoner  to  the  officer  who 
arrested  him  on  a  charge  of  robbeiy,  that 
the  accomplice  had  nothing  to  do  with  the 
robbery,  is  a  sufHcient  corroboration  of  the 
testimony  of  the  accomplice ;  since  it  war- 
rants the  inference  that  the  prisoner  knew 
who  were  engaged  in  committing  the  offense, 
and  that  this  knowledge  was  derived  from 
his  own  participation  in  it.  Com.  v. O'Brien, 
12  Allen,  183.  See  Com.  v.  Elliott,  110 
Mass.  104;  s.  c.  2  Green's  Crim.  Reps.  261. 

316.  Where  part  is  false.  The  defend- 
ant was  convicted  of  larceny  on  the  testimo- 
ny of  M.,  who  swore  that  he  and  the  defend- 
ant committed  the  crime.  It  being  shown 
that  M.  had  made  contradictory  statements, 
the  defendant  asked  the  court  to  charge  the 
jury  that  if  tiie  witness  had,  in  anything  ma- 
terial, sworn  willfully  and  knowingly  to 
anything  false,  his  whole  testimony  must  be 
disregarded.  The  court  refused  to  so  charge, 
but  charged  in  substance  that  any  such  false- 
hood would  seriously  affect  all  of  the  wit- 
ness's testimony,  and  that  no  credit  should 
be  given  to  any  fact  dependent  upon  his 
statements  alone ;  but  that  where  corrobo- 
rated it  might  receive  such  credit  as  the  jury 
thought  it  deserved.  Held,  that  there  was 
no  error.    Knowles  v.  People,  15  Mich.  408. 

317.  Who  not  an  accomplice.     A  detect- 


160 


EYIDEKCE. 


Testimony  of  Accomplice. 


Testimony  of  Experts. 


ive  who  acts  without  any  felonious  intent, 
but  solely  with  the  view  of  discovering  the 
perpetrators  of  crime,  is  not  an  accomplice. 
State  V.  McKean,  36  Iowa,  343;  s.  c.  2 
Green's  Crim.  Reps.  635.  So,likewise,  a  per- 
son who  has  no  knowledge  of  a  larceny  until 
after  its  commission,  and  who  buys  the  stolen 
goods  by  direction  of  an  officer,  with  funds 
supplied  by  the  officer,  in  order  to  detect 
the  thief,  is  not  an  accomplice  whose  testi- 
mony needs  corroboration.  People  v.  Bar- 
ric,  49  Cal.  342. 

318.  Where  a  witness  swore  that  he  was 
present  while  the  defendants  played  a  num- 
ber of  games  with  cards;  that  at  the  request 
of  one  of  them,  who  did  not  know  much 
about  the  game,  he  sat  behind  him,  and 
from  time  to  time  told  him  how  to  play ; 
that  he  took  a  card  once  or  twice  from  the 
hand  of  said  player  and  threw  it  down  on 
the  table  for  him,  and  once,  during  the  mo- 
mentary absence  of  said  player,  played  one 
of  his  cards  for  him ;  and  that  he  was  also 
engaged  in  reading  a  part  of  the  time— it 
was  held  proper  for  the  court  to  refuse  to 
instruct  the  jury  that  the  witness  was  an  ac- 
complice, and  that  a  conviction  could  not 
be  had  on  his  uncorroborated  testimony. 
Smith  V.  State,  37  Ala.  472. 

14.  Testimony  of  experts.   K 

319.  In  general.  Professional  witnesses 
can  only  give  their  opinion  on  questions  of 
skill  or  science.  People  v.  Bodine,  1  Denio, 
282 ;  Woodin  v.  People,  1  Parker,  464 ;  Cook 
V.  State,  4  Zabr.  843.  But  their  opinions  as 
experts  not  derived  from  their  own  observa- 

j  tion  and  experience,  but  from  books,  are 
admissible  in  evidence.  State  v.  Terrell, 
12  Rich.  321;  State  v.  Wood,  53  New 
Hamp.  484.  Their  opinion  is  not  conclu- 
sive, but  is  to  be  weighed  by  the  jury  as 
other  evidence.  State  v.  Bailey,  4  La.  An. 
376. 

320.  A  medical  or  other  professional  wit- 
ness cannot  be  allowed  to  give  opinions  out- 
side of  his  art  or  profession.  Where,  there- 
fore, a  physician  on  the  trial  of  an  indict- 
ment against  a  father  for  having  carnal 
knowledge  of  his  daughter,  was  permitted 
to  express  to  the  jury  his  opinion  that  the 


child  had  gonorrhcea,  based  upon  the  fact 
that  he  found  that  disease  upon  the  father, 
it  was  held  error.  Moore  v.  State,  17  Ohio, 
K  S.  515. 

321.  Must  be  based  on  facts.  An  expert 
cannot  be  permitted  to  give  a  mere  023inion 
not  based  on  facts.  The  facts  on  which 
the  opinion  is  l)ased,  must  either  be  stated 
by  other  witnesses  or  by  the  expert  him- 
self, if  they  passed  under  his  own  obser- 
vation. And  the  opinion  must  be  found- 
ed upon  a  knowledge  of  causes  and  their 
effects  so  uniform  in  their  connection  as  to 
amount  to  the  establishment  of  a  new  fact, 
relation,  or  connection  which  would  other- 
wise remain  unproved.  Cooper  v.  State,  23 
Texas,  331,  per  Bell,  J. 

322.  An  expert  who  has  heard  the  whole 
evidence,  cannot  give  his  opinion  as  to  the 
effect  of  such  evidence.  Luniug  v.  State,  1 
Wis.  178.  If  the  expert  has  been  present  in 
court,  and  has  heard  all  the  evidence,  and 
there  is  no  dispute  about  the  facts,  he  may 
be  asked  his  opinion. Cjut  when  the  facts 
are  disputed,  the  question  should  be  stated 
hypothetical! jC^  State  v.  Klinger,  46  Mo. 
224.  An  expei-t  who  has  heard  only  a 
portion  of  the  evidence,  cannot  testify  to  an 
opinion  based  on  such  portion.  State  v. 
Medlicott,  9  Kansas,  257;  s.  c.  1  Green's 
Crim.  Reps.  227. 

323.  As  to  cause  of  death.  An  expert 
after  having  made  a  post  mortem  examina- 
tion of  the  body  of  a  female,  may  give  his 
opinion  that  she  had  been  pregnant,  and 
as  to  the  cause  of  her  death.  State  v. 
Smith,  32  Maine,  369. 

324.  On  a  trial  for  murder,  it  appeared 
that  the  body  of  the  deceased  was  found  in 
the  sink  or  bin  of  his  mill  with  six  wounds 
on  his  head.  Held  that  a  medical  expert, 
who  had  heard  a  medical  witness  describe 
the  wounds,  and  had  also  heard  several 
witnesses  describe  the  construction  and 
condition  of  the  sink,  was  competent  to 
give  his  opinion  as  to  whether  such  wounds 
were  likely  to  have  been  occasioned  by 
accidentally  fiilliug  into  the  sink,  although 
he  did  not  hear  the  whole  cross-examination 
of  the  physician  who  described  the  wounds. 
Davis  V,  State,  38  Md.  15. 


EVIDEXCE. 


101 


Testimony  of  Experts. 


325.  As  to  instrument.  The  form  and 
appearance  of  the  wounds  upon  the  deceased 
having  been  ascertained  by  an  expert,  it  is 
proper  to  ask  him  whether,  in  his  opinion, 
an  instnimeut  shown  him  could  have  pro- 
duced the  wounds ;  also,  whether  a  wound 
in  the  neck  of  the  deceased  could  have  been 
inflicted  by  her  own  right  hand.  State  v. 
Knight,  43  Maine,  1 1 ;  State  v.  Porter,  34 
Iowa,  131 ;  s.  c.  1  Green's  Crim.  Keps.  241. 

326.  On  a  trial  for  murder,  the  following 
question  to  a  medical  witness  who  had  ex- 
amined the  wounds  on  the  head  of  the  de- 
ceased, and  the  sink  or  bin  in  which  the 
body  was  found,  and  also  a  crowbar  and 
adze,  which  were  found  at  the  same  place, 
was  held  proper:  "State  to  the  jury  what 
kind  of  an  instrument  could  in  your  opinion, 
have  inflicted  the  wounds  found  on  the 
head  of  the  deceased."  Davis  v.  State,  38 
Md.  l.j. 

327.'V)u  a  trial  for  murder,  the  form, 
nature,  extent,  depth,  length,  width,  and 
direction  of  the  fotal  wound  having  been 
proved/ and  its  precise  location  on  the  head, 
with  a  general  statement  of  the  amount  of 
force  requisite,  and  the  probable  shape  of 
the  instrument,  a  surgeon  is  no  more  com- 
petent to  give  an  opinion  as  to  the  position 
of  the  body  when  struck,  than  any  other 
person.  But  where  the  only  question  of 
fact  was  as  to  wlio  was  the  perpetrator,  it 
was  held  tiiat  the  admission  of  such  an 
opinion  furnished  no  ground  for  a  new  trial. 
Kennedy  v.  People,  39  N.  Y.  245. 

328.  On  the  trial  of  an  indictment  for 
burning  certain  buildings,  witnesses  who 
were  skilled  in  woodwork  were  called,  who 
had  examined  a  block  contained  in  a  box 
alleged  to  have  been  used  for  incendiary 
purposes,  and  liad  compared  it  with  a  stick 
found  in  the  defendant's  shop,  and  were 
allowed  to  state  their  opinion,  that  these 
pieces  were  originally  parts  of  the  same 
stick.  Held  proper.  Com.  v.  Choate,  105 
Mass.  451. 

329.  On  the  question  of  insanity.  Facts 
or  opinions  on  the  subject  of  insanity, 
whether  stated  in  the  language  of  the  court 
or  counsel  in  a  former  case,  or  cited  from 
the  works  of  legal  or  medical  writers,  can- 

11 


not  be  laid  before  the  jui-y  except  by  the 
testimony  under  oath  of  persons  skilled  in 
such  matters.  Com.  v.  Wilson,  1  Gray, 
337. 

330.  Although  medical  men  are  permitted 
to  give  their  opinion  in  cases  of  alleged 
insanity,  yet  they  should  not  be  allowed  to 
express  such  opinion,  except  on  all  the  testi- 
mony. Where  medical  witnesses  who  had 
heard  only  a  portion  of  the  evidence,  and 
had  had  no  previous  acquaintance  with  the 
prisoner,  were  permitted  not  only  to  give 
opinions  in  relation  to  the  condition  of  his 
mind,  but  also  to  testify  to  their  belief  that 
he  was  sane,  it  was  held  error.  People  agst. 
Lake,  12  N.  Y.  358 ;  s.  c.  1  Parker,  495. 

331.  If  a  physician  visits  a  person,  and 
from  examination  or  observation  becomes 
acquainted  with  his  mental  condition,  he 
may  state  to  the  jury  his  opinion  sis  to  the 
sanity  or  insanity  of  the  person  when  he 
thus  observed  or  examined  him ;  and  it  may  \ 
be  shown  by  the  witness  that  the  faiher  of 
such  person  was  insane.  State  v.  Felter, 
25  Iowa,  67. 

332.  A  medical  witness  conversant  with 
insanity,  who  never  saw  the  prisoner  before 
the  trial,  but  who  was  present  during  the 
whole  trial,  and  heard  the  evidence,  may  be  S 
asked  his  opinion  as  to  the  state  of  the 
prisoner's  mind  at  the  time  of  the  commis- 
sion of  the  alleged  crime.    State  v.  Windsor, 

5  Harring.  512.  Held  otherwise  in  New 
York,  but  that  the  witness  might  be  asked 
whether  such  and  such  appearances,  were 
symptoms  of  insanity,  and  whether  such  a 
fact,  if  it  exist  (and  which  has  been  sworn 
to),  is,  or  is  not,  an  indication  of  insanity. 
People  agst.  Lake,  12  iS".  Y.  358;  s.  c.  1 
Parker,  495. 

333.  A  medical  witness  examined  as  an\ 
expert,  was  asked  the  following  question:    | 
"Would  not  the  manner  in  which  the  act  / 
was  done,  tiie  circumstances  of  the  case,  the    . 
absence  or  presence  of  apparent  motive,  and 
the  wliole  details  of  the  transaction,  be  con- ' 
sidered  by  scientific  men  in  determining  the] 
question    of    sanity    or    insanity  ? "      Held 
proper.     State  v.  Reddick,  7  Kansas,  143. 

334.  On  a  question  of  insanity,  an  expert 
may  be  asked  his  opinion  as  to  a  hypothe- 


162 


EVIDENCE. 


Testimony  of  Experts. 


tical  statement  of  facts,  and  also  as  to  what 
are  the  symptoms  of  insanity.  But  the  jury 
are  to  determine  whether  such  facts  exist,  or 
such  symptoms  are  proved.  Lake  v.  People, 
1  Parker,  495 ;  People  v.  Thurston,  2  lb. 
'$97"  The  following  question  to  a  medical 
witness  was  held  incompetent,  for  the  reason 
that  it  practically  put  the  witness  in  the 
place  of  the  jury :  "  From  the  facts  and  cir 
cumstances  stated  by  previous  witnesses, 
relating  to  the  homicide,  and  from  the  de- 
fendant's conduct  on  the  trial,  is  it  your 
opinion  that  the  prisoner  was  sane  or  insane 
.  when  he  committed  the  act?"  State  v. 
Felter,  25  Iowa,  67. 

335.  On  a  trial  for  murder,  there  was  evi- 
dence tending  to  show  that  the  piisoner 
before  and  at  the  time  of  the  act  was 
laboring  under  an  insane  delusion.  C  ,  a 
physician,  tcstitied  that  the  facts  relied 
upon  by  the  defense  indicated  that  the  pris- 
oner was  of  unsound  mind.  The  judge,  in 
his  charge,  told  the  jury  that  he  placed  no 
reliance  whatever  upon  Doctor  C.'s  testi- 
mony except  what  was  due  to  the  testimony 
of  a  sensible  and  honest  gentleman,  and 
that  he  had  equal  respect  for  the  opinions 
of  the  jury,  who  were  quite  as  competent, 
perhaps,  to  pass  upon  the  testimony  as  ex- 
perts as  was  Doctor  C.  Exception  being 
taken  to  these  remarks,  the  judge  responded 
thus :  "  There  is  no  more  reliance  to  be 
placed  upon  it  than  upon  the  testimony  of 
^  any  other  person  in  this  case.  1 1  regard  you, 
gentlemen  of  the  jury,  as  equally  skilled  and 
and  as  able  to  decide  from  the  evidence 
whether  or  not  the  prisoner  was  insane  as 
Doctor  C.J  Held  error.  Templeton  v.  Peo- 
ple, 6  N.  Y.  Supm.  N.  S.  81. 

336.  On  a  trial  for  murder,  a  witness 
testified  that  he  had  examined  the  prisoner 
two  days  after  the  homicide,  and  that  in  his 
opinion  he  was  then  deranged,  and  that  he 
thought  delirmra  tremens  was  the  cause. 
Held  that  the  defendant  had  a  right  to 
pursue  the  inquiry,  and  to  have  the  opinion 
of  the  witness  whether  the  state  of  mind  in 
which  he  found  the  prisoner  had  existed  at 
the  date  of  the  homicide,  but  that  as  the 
court  had  merely  excluded  the  question  in 
the  form  in  which  it  was  put,  and  allowed 


the  witness  to  state  how  long  in  his  opinion 
the  prisoner  had  been  in  a  state  of  delirium 
tremens,  there  was  no  error.  People  v.  Mc- 
Cann,  3  Parker,  273;  s.  c.  1(5  N.  Y.  58. 

337.  The  counsel  for  the  defendant  asked 
the  same  witness  what,  in  his  opinion,  the 
facts  stated  on  the  trial,  supposing  themi  to 
be  true,  showed  as  to  the  defendant's  mind 
on  the  night  of  the  homicide.  The  question 
being  objected  to,  was  excluded.  But  the 
court  decided  that  the  witness  inight  be 
asked  his  opinion  upon  a  hypothetical 
case  corresponding  to  the  testimony,  or  by 
reading  him  the  testimony  and  asking  for 
his  opinion,  on  the  supposition  that  those 
facts  were  true.  Held  that  as  the  question 
excluded  by  the  court  and  those  allowed 
were  in  substance  the  same,  there  was  no 
error.     H).  per  Harris,  J. ^ 

338.  The  proper  mode  of  examining  such 
a  witness  is,  first  to  inquire  of  him  as  to  the 
particular  symptoms  of  insanity,  asking 
whether  all  or  any  and  which  of  the  circum- 
stances spoken  of  by  the  witnesses  upon  the 
trial  are  to  be  regarded  as  such  symptoms, 
and  then  to  inquire  of  him  whether  any  and 
what  combination  of  these  circumstances 
would,  in  his  opinion,  amount  to  proof  of 
insanity.     lb.  ' 

339.  May  be  interrogated  to  test  their 
skill.  After  melical  witnesses  have  given 
their  opinions  on  the  direct  examination, 
the  counsel  for  the  prisoner  may  put  in- 
quiries to  them  tending  to  test  their  skill 
and  capacity  and  the  correctness  of  their 
conclusions,  and  they  may  be  asked  hypo- 
thetical questions  predicable  of  the  facts 
proved  or  that  may  be  fairly  claimed  to  have 
been  proved.  People  agst.  Lake,  13  N.  Y. 
358. 

340.  Interpreter.  A  person  who  is  deaf 
and  dumb  may  testify  by  signs  through  an 
interpreter,  though,  it  appear  that  such  per- 
son can  read  and  communicate  ideas  imper- 
fectly by  writing.  State  v.  De  Wolf,  8  Conn. 
93. 

341.  Where  an  interpreter  is  employed, 
and  there  is  a  dispute  as  to  the  meaning  of 
a  word  in  the  fort igu  language,  the  court 
should  require  the  interpreter  to  give  the 
primary  meaning  of  all  words  used  in  con- 


EVIDENCE. 


163 


Opinions  of  Witnesses  who  are  not  Experts. 


nection  with  the  word  in  dispute ;  and  the 
a,ccused  is  entitled  to  introduce  evidence  as  to 
the  meaning  of  the  word.  Schnier  v.  People, 
23  111.  17. 

15.  Opinions  op  witnesses  who  are   not 

EXPERTS. 

342.  Indistinct  recollection.  Where  the 
impression  of  a  witness,  as  to  a  past  fact, 
means  a  remembrance  so  faint  that  it  cannot 
be  characterized  as  an  undoubting  recollec- 
tion, it  is  evidence,  however  indistinct  the 
recollection  may  be.  State  v.  Flanders,  38 
New  Hamp.  324. 

343.  As  to  defendant's  guilt.  A  witness 
cannot  be  permitted  to  express  his  opinion 
of  the  defendant's  guilt.  Cameron  v.  State, 
14  Ala.  546.  And  after  a  witness  has  testi- 
fied to  facts  tending  to  prove  the  guilt  of 
the  defendant,  it  is  not  competent  for  the 
latter  to  show  what  opinion  the  witness  ex- 
pressed upon  the  merits  of  the  case.  Com. 
v.  Mooney,  110  Mass.  99. 

344.  On  questions  of  common  knowledge. 
It  is  competent  for  a  witness  to  give  his 
opinion  as  a  conclusion  of  fact  to  which  his 
judgment,  observation  and  common  knowl- 
edge has  led  him  in  regard  to  a  subject- 
matter  which  requires  no  special  learning  or 
experiment,  but  which  is  within  the  knowl- 
edge of  men  in  general.  It  was,  therefore, 
held  that  a  witness  who  was  familiar  with 
blood,  and  had  examined  with  a  lens  a 
blood  stain  upon  a  coat  when  it  was  fresh, 
might  testify  that  the  appearance  then  indi- 
cated the  direction  from  which  it  came,  al- 
though he  had  never  experimented  with 
blood  or  other  fluid  in  this  respect ;  the 
witness  having  previously  testified  to  its  ap- 
pearance at  the  time  he  examined  it,  and  to 
the  fact  that,  at  the  time  of  the  trial,  it  was 
not  in  the  same  condition.  Also  held  in 
relation  to  shoes  which  were  taken  from 
the  defendant's  house  soon  after  the  homi- 
cide, and  which,  it  was  claimed,  fitted  tracks 
supposed  to  have  been  made  by  the  murderer, 
that  a  witness  might  testify  that  the  shoes 
appeared  as  if  they  had  been  recently 
washed.     Com.  v.  Sturtivant,  117  Mass.  122. 

345.  Where  a  witness  has  testified  that  he 
heard  the  sound  of  a  carriage,  he  may  be 


asked  from  what  direction  the  sound  seemed 
to  come,  or  frpm  what  point  the  carriage 
seemed  to  start.  State  v.  Shinborn,  46  New 
Hamp.  497. 

346.  A  witness  may  give  his  opinion  as  to 
the  time  of  day  when  an  event  occurred,  and 
as  to  the  length  of  time  which  elapsed  be- 
tween the  occurring  of  two  events.  Camp- 
bell V.  State,  23  Ala.  44. 

347.  One  who  has  been  a  money  broker  in 
the  city  of  B.  for  twelve  years,  buying  and 
selling  bank  bills,  is  competent  to  show  that 
the  bills  purporting  to  be  issued  by  a  cer- 
tain bank  are  not  current,  and  have  no 
market  value  in  B.  But  his  opinion  is  not 
admissible  in  evidence  to  prove  that  there  is 
no  such  bank,  or  if  there  is,  that  its  bills  are 
worthless  eveiywhere.  People  v.  Chandler, 
4  Parker,  231. 

348.  As  to  age  of  person.  The  mere 
opinion  of  a  witness  as  to  the  age  of  a  per- 
son from  his  appearance,  unaccompanied  by  \ 
the  facts  on  which  the  opinion  is  based,  is 
not  competent  evidence.  Morse  v.  State,  6 
Conn,  9. 

349.  On  the  question  of  health.  The 
difiierence  between  health  and  any  sickness 
whatever  in  a  neighborhood  is  not  to  be  re- 
garded as  open  only  to  medical  knowledge, 
and  the  contradiction  of  medical  testimony 
on  the  subject,  is  a  contradiction  of  common 
facts  and  not  of  science,  not  requiring  the 
testimony  of  an  expert.  Evans  v.  People, 
12  Mich.  27. 

350.  But  a  witness  who  is  not  an  expert 
is  not  competent  to  express  an  opinion  as  to 
the  particular  kind  of  fits  with  which  a  per- 
son is  afflicted.  McLean  v.  State,  16  Ala. 
672. 

351.  As  to  declarations  of  the  defend- 
ant. It  is  erroneous  to  permit  a  witness  to 
give  his  ''  understanding  "  of  the  meaning 
of  declarations  made  to  him  by  the  prisoner, 
unless  the  witness  is  an  interpreter  or  ex- 
pert. Dixon  V.  State,  13  Fla.  636.  Evi- 
dence on  a  trial  for  murder  that  the  prisoner 
made  threats  of  violence  against  a  person 
without  naming  him,  but  that,  in  the  opin- 
ion of  the  witness,  tlic  prisoner  alluded  to 
the  defendant,  is  not  competent.  Johnson 
V.  Com.  9  Bush,  224. 


164 


EVIDENCE. 


Opinions  of  Witnesses  who  are  not  Experts. 


352.  On  a  trial  for  murder,  the  prosecu- 
tion proved  by  a  witness  tbat  he  heard  cries 
at  the  house  where  the  prisoner  and  bis  wife 
(the  deceased)  lived,  on  the  Saturday  night 
2)recediug  her  death.    The  witness  was  then 

I  asked  what  those  cries  indicated  ;  to  which 
he  answered  (uucTer  objection),  tbat  it 
seemed  to  him  she  cried  for  belp.  Held  er- 
ror; it  being  for  the  witness  to  describe  the 
cries,  and  the  jury  to  draw  their  own  infer- 
ences. Messner  v.  People,  45  N.Y.  1 ;  Peck- 
ham,  J.,  dissenting. 

353.  As  to  defendant's  intention.  On 
the  trial  of  an  indictment  for  an  assault  with 
intent  to  do  great  bodily  harm,  the  prosecu- 
tor was  asked,  on  cross-examination,  whether 

j  he  believed  at  the  time  the  shot  was  fired, 
that  the  defendant  intended  to  shoot  him. 
Held  that  the  answer  to  this  question  was 
properly  excluded,  it  not  appearing  that  the 
pwitness  had  any  better  means  of  judging  as 
to  the  defendant's  intention  than  the  jury7 
State  V.  Garvey,  11  Minn.  154. 

354.  Speculation  or  conjecture.  On  the 
trial  of  an  indictment  for  seduction  under 
promise  of  marriage,  the  district  attorney 
asked  the  prosecutrix,  "Were  you  induced 

g  to  have  the  connection  on  the  second  of  July 
*  by  the  promise  of  marriage ;  and  would  you 
have  consented  to  it,  in  the  absence  of  a 
promise  ? "  Held  that  the  latter  part  of  the 
question  was  improper,  as  it  called  for  a 
mere  speculation,  and  substituted  the  prose- 
cutrix in  the  place  of  the  jury.  Cook  v.  Peo- 
ple, 2  N.  Y.  Supm.  K  S.  404. 

355.  On  a  trial  for  an  assault  with  an  in- 
tent to  kill,  the  evidence  on  the  part  of  the 
prisoner  tended  to  show  repeated  acts  of  vio- 
lence against  him  by  the  complainant,  and 
threats  against  his  life.  The  prisoner,  in  tes- 
tifying, described  a  motion  of  the  complain- 
ant's hand   during    the    collision   between 

)  them,  from  which  he  thought  the  latter  de- 
sig-ned  to  take  a  pistol  from  his  pocket,  and 
in  reference  to  that  circumstance,  the  judge 
asked :  "  Can  you  explain  to  me  this  thing  ? 
While  C,  who  was  able  to  whip  you,  kept 
picking  at  you  for  amusement,  why  should 
he  have  put  his  band  in  liis  pocket  after  giv- 
ing you  three  terrific  blows  in  the  face  ? 
What  was  the  occasion  of  drawing  a  pistol  ? 


I  don't  see  why  a  man  whipping  you  every- 
day, you  should  suspect  he  would  draw  a 
pistol."     Held  that  as  the  question  called 
upon  the  prisoner  to  furnish  the  reason  or  ! 
motive  for  the  complainant's  act,  its  admis-  'i 
sion  was  error.     Evers  v.  People,  6  N.  Y.   \ 
Supm.  N.  S.  81. 

356.  On  the  question  of  sanity.  The 
opinion  of  non-professional  witnesses  as  to 
the  mental  condition  of  the  prisoner  at  the 
time  of  the  occurrence,  is  not  admissible. 
State  V.  Pike,  49  New  Hamp.  399;  State  v. 
Archer,  54  lb.  465.  And  it  is  not  competent 
to  ask  the  witness  whether  he  had  discov- 
ered, while  the  prisoner  was  in  jail,  that  he 
was  a  man  of  very  weak  mind.  Gardiner  v. 
People,  6  Parker,  155.  But  delirium  tre-' 
mens  may  be  proved  by  a  non  professional 
witness.     Real  v.  People,  55  Barb.  551. 

357.  In  Massachusetts,  witnesses  who  are 
not  experts  are  not  permitted  to  state  their  i 
opinion  as  so  a  person's  sanity,  even  if  they 
first  state  the  facts  and  circumstances  on 
which  it  is  founded.  Com.  v.  Wilson,  1  Gray, 
337;  Com.  v.  Fairbanks,  3  Allen,  511.  It  is 
otherwise,  in  Georgia  and  Tennessee.  Choice 
V.  State,  31  Ga.  424 ;  Dove  v.  State,  3  Heisk. 
348 ;  s.  c.  1  Green's  Crim.  Reps.  760.  In  Mis- 
souri, witnesses  who  are  not  experts,  may 
state  whether  they  deem  the  prisoner  to  be 
insane,  accompanied  with  the  facts  existing 
within  their  own  knowledge  and  observa;^ 
tion.  But  it  can  only  be  done  in  connection 
with  their  statements  of  the  particular  con- 
duct and  expressions  which  form  the  basis 
of  their  judgment.  State  v.  Klinger,  46  Mo. 
224.     And  see  Powell  v.  State,  24  Ala.  21. 

358.  In  New  York,  a  layman  when  exam- 
ined as  to  facts  within  his  own  knowledge, 
bearing  on  the  question  of  sanity,  may  be 
permitted  to  characterize  the  acts  to  which 
he  testifies  as  rational  or  irrational,  and  may 
testify  to  the  impression  produced  by  what 
he  witnessed.  But  he  is  not  competent  to 
express  an  opinion  on  the  general  question 
whether  the  mind  of  the  individual  be  sound 
or  unsound.  O'Brien  v.  People,  36  N.  Y. 
276 ;  affi'g  48  Barb.  274. 

359.  As  to  intoxication  of  defendant,  i 
A  witness  may  be  asked  whether  from  the  ^ 
prisoner's  conduct  and  deportment,  and  other 


EVIDENCE. 


165 


Proof  of  Alibi. 


/: 


facts  connected  with  them,  he  was  (in  the 
judgment  of  the  witness),  to  any  considera- 
ble extent  under  the  influence  of  intoxicat- 
ing liquor.  People  agst.  Eastwood,  14  N.  Y. 
5C2. 

16.    Proof  op  alibi. 

360.  Nature  of.  A  charge  that  the  law 
regards  evidence  to  prove  an  alil:>i  among 
the  weakest  and  most  unsatisfactory  of  all 
kinds  of  evidence,  is  erroneous.  An  alibi  is 
ii  fact,  and  its  existence  is  established  by  the 
same  evidence  as  any  other  fact.  Williams 
v.  State,  47  Ala.  659. 

381.  Burden  of  proof.  On  the  trial  of 
an  indictment  for  burning  certain  buildings, 
the  jury  were  instructed  that  if  the  defend- 
ant sought  to  establish  an  alibi,  the  burden 
of  proof  was  on  him ;  but  that  the  burden 
was  upon,  the  prosecution  to  establish  the 
alleged  fact  that  the  defendant  was  present 
at  the  fire,  and  if  on  the  entire  evidence  the 
juiy  had  a  reasonable  doubt  on  that  point, 
they  should  acquit  him.  Held  not  a  ground 
of  exception.  Com.  v.  Choate,  105  Mass. 
451. 

362.  "What  required  to  establish.  An 
alibi  need  not  be  proved  beyond  a  reasona- 
ble doubt.  Chappel  v.  State,  7  Cold.  Tenn. 
92.  Therefore  the  terms  "possible"  and 
"  impossible  "  in  the  instruction  of  the  court 
with  reference  to  the  proof  of  it,  are  too 
strong.  Snell  v.  State,  50  Ind.  516.  Where 
on  a  trial  for  larceny,  the  defense  being  an 
alibi,  the  judge  charged  the  jury  in  sub- 
stance that  "it  must  have  been  impossible  for 
the  defendant  to  have  been  at  L.  at  the 
times  indicated  by  the  evidence  offered  by 
him  and  also  to  have  been  present  at  the 
time  and  place  of  the  larceny  in  order  to 
make  the  defense  available."  Held  error; 
the  term  "  impossible''''  being  too  strong,  and 
an  improbability  being  all  that  was  required. 
Adams  v.  State,  42  Ind.  373.  Same  held 
on  a  trial  for  murder.  West  v.  State,  48  lb. 
483. 

363.  It  is  erroneous  to  charge  the  juiy 
that  if  the  defendant  seeks  to  prove  an  alibi, 
he  must  do  it  by  evidence  which  outweighs 
that  given  for  tlie  State  tending  to  fix  his 
presence  at  the  time  and  place  of  the  crime; 


for  the  reason  that  if  the  defendant  produces 
evidence  which  raises  a  reasonable  doubt  of 
the  truth  of  the  charge  against  him  he  must 
be  acquitted;  and  the  rule  is  the  same, 
where  the  defense  set  up  is  an  alibi.  French 
V.  State,  12  Ind.  670 ;  Miller  v.  People,  39 
111.  457 ;  Adam?  v.  State,  42  Ind.  373 ;  8.  c. 
3  Green's  Crim.  Reps.  686.  But  see  Briceland 
V.  Com.  74  Penn.  St.  463 ;  s.  c.  2  Green's 
Crim.  Reps.  523. 

364.  It  is  erroneous  to  charge  the  jury  on 
a  trial  for  murder  that  "  the  defense  of  alibi 
does  not  belong  to  the  doctrine  of  doubts 
which  entitles  the  defendant  to  be  acquitted ; 
but  when  it  is  successfully  established  by  the 
evidence,  it  entitles  the  defendant  to  an  ac- 
quittal upon  the  higher  ground  of  innocence 
established."  If  the  jury  have  a  reasonable 
doubt  as  to  whether  the  defendant  was  at 
the  scene  of  the  homicide  when  it  took  place 
they  should  acquit  him.  Binns  v.  State,  46 
Ind.  311. 

365.  On  a  trial  for  robbery,  the  defense  to 
which  was  an  alibi,  the  evidence  tended  to 
show  that  when  the  crime  was  committed, 
the  prisoner,  who  was  a  lad,  was  at  his 
mother's  house  in  bed.  The  judge  charged 
the  jury  that  it  was  for  them  to  determine 
whether  they  believed  the  witnesses  who 
had  testified  to  the  alibi;  that  it  was  singu- 
lar that  a  boy  like  the  prisoner  should  be  in 
bed  in  July,  from  seven  to  half  past  eleven 
in  the  morning,  unless  he  was  sick  or  there 
was  some  other  special  reason,  and  that  the 
circumstance  that  neither  his  mother  nor 
any  of  his  family  had  been  called  to  show 
that  he  was  sick  or  to  explain  the  fact  of 
his  thus  being  in  bed  might  or  "  would  prob- 
ably turn  the  scales."  Held,  that  the  fore- 
going language  of  the  judge  afforded  no 
ground  for  a  new  trial.  MoGrory  v.  People, 
48  Barb.  466. 

366.  Proof  need  not  be  exact  as  to  time. 
Where  the  court,  after  informing  the  jury 
that  to  sustain  the  alibi  identity  of  the  time  of 
theoifense  with  the  presence  of  the  defendant 
at  another  place  was  essential,  told  them,  in 
eflect,  that  to  give  the  defense  it)  highest 
character,  the  required  identity  must  be 
made  to  appear  by  some  definite  and  certain 
standard  of  time  or  time-piece,  and  that  uu- 


166 


EVIDENCE. 


Proof  of  Alibi. 


Evidence  to  Discredit  or  Sustain  Witness. 


less  it  was  so  ascertained,  the  defense  would 
be  greatly  weakened,  it  was  held  error; 
such  a  discrimination  between  artificial 
means  of  keeping  time,  and  other  modes  of 
])roving  the  fact  relied  on,  being  calculated 
to  mislead.  Young  v.  Com.  8  Bush,  366 ; 
s.  c.  1  Green's  Crim.  Reps.  306. 

367.  It  is  proper  to  instruct  the  jury  that 
where  the  exact  time  of  the  commission  of 
the  offense  is  not  shown,  but  it  is  shown  to 
liave  been  committed  during  a  night,  or 
])art  of  a  night,  the  evidence  of  the  alibi 
ought  to  cover  the  whole  of  such  time. 
West  V.  State,  48  Ind.  ,483.  If,  however, 
the  evidence  touching  an  alibi  is  sufficient 
to  raise  a  reasonable  doubt  of  the  defend- 
ant's guilt  in  the  minds  of  the  jury,  it  should 
be  considered,  although  the  alibi  does  not 
cover  the  whole  time  during  w'hich  the 
crime  was  committed.  Kaufman  v.  State, 
49  lb.  248. 

368.  Evidence  to  disprove.  "Where  the 
■|)risoner  has  undertaken  to  prove  an  alibi,  it 
is  competent  for  the  prosecution  in  reply  to 
disprove  it,  even  by  evidence  of  the  same 
character  as  that  which  had  been  put  in  at 
an  earlier  stage  of  the  trial.  Com.  v.  Moul- 
ton,  4  Gray,  39. 

369.  Where  the  defendant  stated  that  he 
was  at  the  residence  of  a  certain  person,  and 
transacted  business  with  him  there  on  the 
evening  the  offense  was  committed,  it  was 
held  competent  to  prove  that  unsuccessful 
efforts  were  made  the  next  day  to  get  any 
information  as  to  the  existence  of  such  per- 
son by  inquiring  at  the  place  named.  State 
V.  Wentworth,  37  New  Hamp.  19G. 

370.  Effect  of  failure  to  prove.  Al- 
though the  fact  that  an  alibi  was  fabricated, 
would  be  a  strong  circumstance  against  the 
defendant,  yet  the  mere  unsuccessful  attempt 
to  establish  an  alibi,  is  entitled  to  no  greater 
weight  against  the  prisoner  than  the  failure 
to  prove  any  other  important  item  of  de- 
fense. State  V.  Collins,  20  Iowa,  85  ;  Miller 
V.  People,  39  111.457;  Toler  v.  State,  16 
Ohio,  N.  S.  583 ;  White  v.  State,  31  Ind. 
262. 

371.  On  a  trial  for  larceny  the  court 
charged  the  jury  that  when  the  State  had 
made  out  a  pi'ima  facie  case,  and  the  pris- 


oner attempted  to  set  up  an  alibi,  the  bur- 
den of  proof  was  shifted,  and  if  the  de- 
fense failed  to  establish  the  aliJ)i  to  the 
satisfaction  of  the  jury,  they  must  find  the 
prisoner  guilty.  Held,  erroneous;  the  de- 
fendant being  entitled  to  have  the  whole 
case  left  to  the  jury  on  both  sides.  State  v. 
Josey,  64  K  C.  56. 

17.   Evidence    to   discredit   or   sxjstaik 

WITNESS. 

372.  Improper  conduct  of  witness.  Im- 
proper conduct  of  a  witness  in  the  suppres- 
sion or  alteration  of  his  testimony,  cannot 
take  his  testimony  from  the  jury.  Such 
conduct  goes  to  his  credit,  and  that  rests 
with  the  jury.     State  v.  Roe,  12  Vt.  93. 

373.  Facts  collateral  to  issue.  When 
facts  elicited  on  cross-examination  are  collat- 
eral to  the  issue,  they  cannot  be  contra- 
dicted by  the  party  calling  them  out.  State 
V.  Hofiinan,  46  Vt.  176 ;  People  v.  McGinnis, 
1  Parker,  387. 

374.  Vv'here  on  a  trial  for  producing  am 
abortion  the  prisoner  on  his  cross-examina- 
tion, testified  that  he  did  not  know  N.  W.^ 
a  young  woman  present  in  court  then  pointed 
out  to  him,  that  hs  had  never  seen  her,  and 
never  procured  an  abortion  upon  her,  and 
N.  W.  afterwards  testified  against  an  objec- 
tion of  the  prisoner,  that  he  did  procure  an 
abortion  upon  her  two  years  previous,  it 
was  held  error.  Rosenzweig  v.  People,  6 
6  Lans.  462  ;  s.  c.  63  Barb.  634. 

375.  This  rule  does  not  exclude  testimony 
contradicting  the  witness  as  to  facts  imme- 
diately connected  with  the  subject  of  the 
inquiry.  The  feelings  of  the  witness  and 
the  motives  and  temper  governing  or  influ- 
encing him  in  the  particular  transaction  are 
proper  subjects  of  inquiry  and  not  collateral. 
Where,  on  a  trial  for  grand  larceny,  the  com- 
plainant on  cross-examination  denied  that 
he  had  offered  to  withhold  evidence,  if  the 
prisoner  would  refund  to  him  a  part  of  the 
money  he  had  lost,  it  was  held  that  he  could 
not  be  contradicted  by  another  witness,  it 
having  no  tetxdency  to  prove  or  disprove  the 
issue,  or  to  shoV  the  feeling  entertained  by 
the  complainant  toward  the  prisoner.  Na- 
tion V.  People,  6  Picker,  258. 


EVIDENCE. 


1G7 


Evidence  to  Discredit  or  Sustain  Witness. 


376.  Tlie  rule  under  consideration,  is  ap- 
plicable to  the  examiuation  of  a  prisoner 
when  he  avails  himself  of  his  privilege  to 
become  a  vpitness.  On  the  cross-examina- 
tion of  the  accused,  who  was  a  witness  in 
his  own  behalf,  he  testified  that  he  had  not 
been  convicted  of  burglary  before  the  al- 
leged oflfense  was  committed.  This  question 
was  then  put  to  him:  "I  ask  you  again, 
specifically,  were  you  not,  on  April  35th, 
1850,  arraigned  at  the  bar  of  this  court, 
charged  with  the  crime  of  burglary  ?  Did 
you  not  confess  your  guilt,  and  were  you  not 
sentenced  to  three  years  in  the  State  prison 
for  that  offense  ? "  To  which  a  negative 
answer  was  given.  The  prosecution  after- 
ward proved  by  the  record  of  the  court  that 
a  person  by  the  name  of  the  defendant  was 
convicted  of  felony  at  the  time  specified. 
Held^  that  this  evidence  was  inadmissible, 
even  in  connection  with  testimony  aliunde 
that  the  prisoner  was  the  person  named  in 
the  record.  It  was  impossible  to  say  that 
the  prisoner  was  not  prejudiced  by  it;  or 
that  the  rejection  of  the  evidence  offered  to 
show  the  identity  of  the  prisoner  as  the  per- 
son named  in  the  record  cured  the  error. 
Marx  V.  People,  63  Barb.  618. 

377.  It  is  not  collateral  to  the  issue  to  in- 
quire into  the  motives  of  a  witness  in  giving 
his  testimony;  and  a  party  who  examines 
him  in  regard  to  them  is  not  bound  by  his 
answers,  but  may  contradict  him.  People 
V.  Austin,  1  Parker,  154. 

378.  Party  contradicting  his  own  wit- 
ness. Although  a  party  is  not  permitted  to 
assert  or  present  evidence  showing  one  state 
of  facts  to  be  proved,  and  afterward  to  as- 
sert or  prove  to  the  court  that  his  prior 
evidence  is  untrue,  or  not  to  be  relied  on ; 
yet  where  a  witness  has  given  evidence 
against  the  side  calling  him,  and  tlie  court 

fhas  good  reason  to  apprehend  that  the  wit- 
ness is  mistaken,  or  has  willfully  falsified, 
the  party  producing  him  will  be  allowed  to 
give  evidence  explaining  or  even  contradict- 

__ing  him.     People  v.  Skeelian,  49  Barb.  217. 

379.  In  Kentucky,  under  the  statute,  where 
a  witness  testifies  to  a  fact  prejudicial  to  the 
party  calling  him,  the  latter  may  be  allowed 
to  show  that  such  fact  does  not  exist,  by 


proving  that  the  witness  had  made  state- 
ments to  others  inconsistent  with  his  present 
testimony ;  but  not  when  tlie  witness  fails  to 
prove  facts  supposed  to  be  beneficial  to  the 
party.     Champ  v.  Com.  2  Mete.  Ky.  17. 

380.  Although  a  party  is  not  bound  by  the 
facts  testified  to  by  his  own  witness,  but 
may  prove  them  to  be  otherwise,  yet  he 
canuot  go  into  proof  merely  to  discredit  his 
witness.  Where,  on  a  trial  for  perjury,  the 
accused  called  a  daughter  of  the  prosecutor 
to  prove  a  material  fact,  but  she  swore  to  the 
contrary,  it  was  held  that  he  could  not  prove 
by  a  witness  that,  shortly  -before  the  trial, 
the  daughter  asserted  the  alleged  fact  to  the 
witness.  Com.  v.  Starkweather,  10  Cush. 
59. 

381.  Failure  to  testify  before  magis- 
trate. No  iufereuce  prejudicial  to  the 
veracity  of  witnesses  can  be  drawn  from  the 
fact  that  they  did  not  testify  before  the 
committing  magistrate.  Brock  v.  State,  26 
Ala.  104. 

382.  Discrediting  written  statement. 
The  testimony  of  a  witness  taken  in  writing 
by  a  magistrate  may  be  used  to  show  con- 
tradictory statements  made  by  him.  State 
V.  McLeod,  1  Hawks,  344.  But  not  for  any 
other  purpose.  Oliver  v.  State,  5  How.  14; 
Com.  V.  Harmon,  4  Barr,  269. 

383.  Where  a  witness's  attention  has  been 
called  to  his  testimony  before  the  coroner, 
which  was  reduced  to  writing,  read  to  and 
subscribed  by  the  witness,  it  is  admissible 
for  the  purpose  of  discrediting  his  testimony 
on  the  trial.  Stephens  v.  People,  19  N.  Y. 
549 ;  affi'g  s.  c.  4  Parker,  396. 

384.  In  discrediting  a  witness  by  reading 
his  deposition  taken  before  the  examining 
magistrate,  his  attention  need  not  be  called 
to  the  deposition,  unless  he  is  cross-exam- 
ined in  relation  to  it.  In  the  latter  case,  the 
entire  deposition  must  be  read  to  the  jury  in 
his  hearing.  If  asked  if  he  has  made  a  cer- 
tain statement  in  a  written  instrument,  the 
writing  must  be  produced.  Lightfoot  v. 
People,  16  Mich.  507;  Gaffney  v.  People,  50 
N.  y.  410. 

385.  A  slight  difference  in  the  proof  as  to 
the  time  between  the  affidavit  before  the 
magistrate  and  the  testimony  on  the  trial. 


168 


EVIDENCE. 


Evidence  to  Discredit  or  Sustain  Witness. 


the  witness  bcin<,'  an  ignorant  person,  is  not 
sufficient  to  impeach  her  evidence.  State  v. 
McElmurray,  3  Strobli.  33. 

386.  Where  the  testimony  of  a  witaess  on 
a  former  trial  was  mainly  founded  on  a 
written  memorandiira,  since  lost,  which  he 
swore  he  made  in  his  own  handwriting,  it 
was  held,  on  a  subsequent  trial  of  the  same 
case,  that  the  defendant  might  show  that  the 
memorandum  was  not  in  the  handwriting  of 
the  witness.     Com.  v.  Hunt,  4  Gray,  421. 

387.  A  diagram  drawn  in  accordance  with 
the  testimony  of  the  witness  may  be  submit- 
ted to  the  jury,  without  having  been  first 
shown  to  the  witness  whose  testimony  it  con- 
tradicts.    Bishop  V.  State,  9  Ga.  121. 

388.  "Where  the  prosecuting  attorney  made 
a  statement  material  to  the  issue,  in  an  aflS- 
davit,  upon  the  authority  of  A.,  a  witness, 
who  was  present,  and  A.  afterward  testified 
diflerently,  it  was  held  that  the  contradiction 
might  be  shown  for  the  purpose  of  discred- 
iting A.     State  V.  McQueen,  1  Jones,  177. 

389.  Contradictory  acts  and  declara- 
tions. Where  a  witness  has  testified  to 
material  facts,  any  acts  or  declarations  of 
his  which  appear  to  be  inconsistent  with 
such  testimony,  are  competent  by  way  of 
contradiction.  On  the  trial  of  an  indict- 
ment for  an  assault  and  battery  on  8.,  he 
was  a  witness,  and  denied  that  he  had  com- 
mitted a  prior  assault,  on  the  same  day,  on 
the  defendant.  Held  that  a  record  of  convic- 
tion of  S.  for  an  assault  ujDon  the  defendant 
was  admissible  to  impeach  the  credibility  of 
S.     Com.  V.  Lincoln,  110  Mass.  410. 

390.  On  a  trial  for  procuring  K.  to  burn  a 
meeting-house,  the  wife  of  the  prisoner  liav- 
ing  testified  that  nothing  was  said  or  done 
by  her  husband  to  induce  K.  to  commit  the 
act,  it  was  held  that  it  was  proper  to  prove 
that  when  she  was  told  that  K.  had  made  a 
confession,  and  stated  that  her  husband 
hired  him  to  burn  the  house,  she  replied : 
"  Well,  he  would  never  have  done  it  if  it 
had  not  been  for  others ;  others  are  more  to 
blame  than  he  is."  State  v.  Kingsbury, 
58  Maine,  238. 

391.  The  credit  of  r.  witness  may  be  im- 
peached by  proof  tliat  he  has  made  state- 
ments material  to  tlie  issue  out  of  court  ©n 


the  same  subject,  contrary  to  what  he  swears 
at  the  trial,  provided  the  witness  has  l>een 
previously  cross-examined  as  to  such  state- 
ments, and  his  attention  not  only  called  to 
the  particulars  of  the  conversation,  but  asked 
as  to  the  time,  place,  and  person  involved  in 
the  supposed  contradiction.  Brown  v.  State, 
24  Ark.  620;  State  v.  Hamilton,  32  Iowa, 
572;  State  v.  Foye,  53  Mo.  336. 

392.  On  the  trial  of  an  indictment  for  rape, 
the  defense  oflered  to  prove  that  two  of  the 
witnesses  for  the  prosecution  had  made 
statements  contradicting  their  testimony. 
This  evidence  was  objected  to,  as  "  improper, 
immaterial,  and  hearsay."  But  it  was  not 
objected  that  the  attention  of  the  witnesses 
had  not  been  first  called  to  these  statements. 
The  evidence  being  ruled  out,  it  was  held 
error.     Haight  v.  People,  50  K  Y.  392. 

393.  Where  on  a  trial  for  larceny  the  pros- 
ecutor testified  on  cross-examination  that 
he  might  have  said  to  E.  that  he  did  not 
think  that  the  accused  would  do  anything 
wrong  but  wanted  to  climb  too  high,  but 
that  he  did  not  recollect  it,  and  did  not 
know  that  he  said  so,  and  the  prisoner's 
counsel  having  called  E.  as  a  witness  asked 
him  if  the  prosecutor  had  ever  said  so  to 
him,  which  question  was  excluded,  it  was 
held  that  as  it  was  not  objected  to  on  the 
ground  that  it  was  not  suflaciently  precise 
as  to  time  and  place,  it  was  proper  and  its 
exclusion  error.  People  v.  Jackson,  3  Parker, 
590. 

394.  Where  a  witness  swears  that  another 
witness  testified  differently  on  a  previous 
trial  of  the  same  case,  it  is  not  competent  to 
introduce  the  bill  of  exceptions  taken  in  the 
former  trial,  to  prove  that  the  witness  had 
contradicted  himself.  State  v.  Birney,  35 
Maine,  105. 

395.  A  witness  cannot  be  discredited  by 
proof  of  particular  acts  not  directly  involved 
in  the  issue  on  trial ;  much  less  by  an  opinion 
as  to  their  general  character  or  tendency. 
Stephens  v.  The  People,  19  N.  Y.  549;  afii'g 
s.  c.  4  Parker,  396 ;  Hamilton  v.  People,  29 
Mich.  173. 

396.  Impeacliment  of  character.  In  Cal- 
ifornia, the  inquiry  into  the  character  of  a 
witness  for  the  purpose  of  impeaching  his 


EVIDENCE. 


109 


Evidence  to  Discredit  or  Sustain  Witness. 


testimonVj^  is  confined  to  bis  reputation  for 
triiW'llud  veracity,  and  does  not  extend  to 
the  moral  standing  of  the  witness  in  the 
estimation  of  society.  People  v.  Yslas,  27 
Cal.  630,  Currey,  J.,  dissenting.  In  North 
Carolina  and  Missouri,  the  inquiry  may  ex- 
tend to  the  general  moral  character  of  the 
witness.  State  v.  Dove,  10  Ired.  469;  State 
V.  Hamilton,  55  Mo.  530 ;  State  v.  Breeden, 
58  lb.  507. 

397.  Testimony  to  impeach  the  character 
of  a  witness  for  truth,  is  not  confined  to  the 
character  of  the  witness  prior  to  the  prose- 
cution, but  extends  to  the  time  of  the 
examination  of  the  witness.  State  v.  How- 
ard, 9  New  Hamp.  485. 

398.  Proof  of  the  reputation  of  a  witness 
for  truth  and  veracity,  a  year  and  a  half 
previous  to  the  trial,  is  not  too  remote  in 
point  of  time.  Com.  v.  Billings,  97  Mass. 
405.  And  evidence  of  the  bad  reputation 
of  a  witness  for  veracity  four  years  pre- 
viously, the  impeaching  witness  having  been 
absent  from  the  State  during  the  inter- 
vening time,  is  admissible.  Keator  v.  People, 
32  Mich.  484. 

399.  "Where  a  record  of  conviction  for 
petit  larceny  is  ofi"ered  in  evidence,  for  the 
pui-pose  of  discrediting  a  witness,  it  is  not 
good  ground  for  rejecting  such  evidence 
that  the  transaction  occurred  more  than 
twenty-five  years  before,  though  in  itself 
entitled  to  but  little  weight.  Lake  v.  People, 
1  Parker,  495 ;  affiYl  12  N.  Y.  358. 

400.  In  Connecticut,  the  record  of  con- 
viction of  a  witness  as  a  common  prostitute 
is  not  admissible  in  evidence  to  impeach  the 
witness.  State  v.  Randolph,  24  Conn.  363. 
In  Maine,  under  the  statute  (R.  S.  ch.  82, 
§  94),  the  record  of  a  previous  conviction  of 
a  criminal  offense  is  admissible  to  affect  the 
credibility  of  the  prisoner,  although  his 
conviction  may  not  have  been  for  an  in- 
famous crime.  State  v.  Watson,  63  Maine, 
128. 

401.  It  cannot  1)e  affirmed  as  a  legal  prop- 
osition, that  a  witness  is  not  successfully 
impeached  unless  the  impeaching  witnesses 
testify  that  from  the  general  reputation  of 
such  witness,  they  would  not  believe  him 
under  oath.     People  v.  Tyler,  35  Cal.  563. 


402.  It  is  erroneous  to  charge  the  jury 
that  "if  the  general  character  of  a  Avitness 
for  truth  is  impeached,  they  are  bound  to 
disregard  the  whole  of  his  testimony." 
Shar|)  V.  The  State,  IG  Ohio,  N.  S.  218. 

403.  Prejudice  of  witness  against  pris- 
oner. Although  it  is  improper  to  ask  a 
witness  if  he  is  not  prejudiced  agaitst  the 
prisoner,  yet  he  may  be  interrogated  as  to 
any  particular  acts  or  expressions  in  refer- 
ence to  the  prisonei"  from  which  the  jury 
may  infer  unfriendly  feeling  or  prejudice. 
Cornelius  v.  State,  7  Eng.  782. 

404.  Where  the  defense  was  perruitted, 
without  objection,  to  ask  a  witness  if  he  was 
not  prejudiced  against  the  prisoner,  and  he 
answered  that  he  was,  it  was  held  error  for 
the  court,  against  the  objection  of  the  de- 
fense, to  draw  from  the  witness  a  statement 
of  the  reasons  why  he  was  so  prejudiced; 
and  the  witness  having  given  reasons  which 
were  injurious  to  the  prisoner,  it  was  held 
that  the  error  was  not  cured  by  the  court 
telling  the  jury  to  disregard  them.     lb. 

405.  It  is  competent  for  the  prisoner,  in 
order  to  show  the  bias  of  S.,  a  witness  for 
the  prosecution,  to  prove  that  before  the 
indictment  or  any  comjolaint  made,  he  had 
instituted  an  action  against  S.,  that  S.  was 
instrumental  in  obtaining  the  indictment 
after  the  commencement  of  the  action  ;  and 
that  subsequent  to  the  finding  of  the  indict- 
ment, S.  proposed  to  the  prisoner  to  do  all 
she  could  to  stop  the  proceedings  if  he 
would  withdraw  his  action.  Com.  v.  Byron, 
14  Gray,  31. 

406.  On  the  trial  of  an  indictment  for  a 
nuisance  in  maintaining  a  dam,  it  was  held 
that  the  court  erred  in  not  permitting  the 
defendant  to  ask  a  witness  for  the  people, 
on  cross-examination,  whether  there  was  not 
an  agreement  between  him  and  others  who 
had  sued  the  defendant  for  flowing  their 
land,  to  get  the  defendant  indicted,  and  in 
that  way  procure  a  removal  of  the  dam  ;  the 
proposed  evidence  tending  to  show  the- in- 
terest of  the  witness  in  the  public  prosecu- 
tion.    C'rippcu  V.  People,  8  Mich.  117. 

407.  Testimony  to  sustain  witness.  A 
corroboration,  to  be  of  any  avail,  should  be 


170 


EVIDENCE. 


Evidence  to  Discredit  or  Sustain  Witness. 


as  to  some  matter  material  to  the  issue.  To 
prove  that  a  witness  has  told  the  truth  as  to 
immaterial  matters,  has  no  tendency  to  con- 
firm his  testimony  involving  the  guilt  of  tlie 
party  on  trial.  Frazer  v.  People,  54  Barb. 
306.* 

408.  Conversations  of  third  persons  with 
the  witness,  not  to  prove  the  truth  of  the 
facts  stated  to  the  witness,  but  merely  to 
show  what  it  was  that  called  the  attention 
of  the  witness  to  a  fact  stated  by  her,  or 
that  fixed  tlie  fact  in  her  recollection,  are 
competent  evidence.  State  v.  Fox,  1  Dutch. 
56G. 

409.  As  a  general  rule,  it  is  not  compe- 
tent, in  support  of  the  testimony  of  a  wit- 
ness, for  the  party  calling  him  to  prove  that 
he  has  made  declarations  out  of  court  cor- 
responding with  his  testimony.  The  excep- 
tions to  this  rule  stated.  People  v.  Finne- 
gan,  1  Parker,  147.  And  see  State  v.  Dove, 
10  Ired.  419. 

410.  Where  the  defendant  ijroves  that  a 
witness  for  the  prosecution,  at  a  previous 
time,  gave  under  oath  a  different  account 
of  the  same  transaction,  it  is  not  competent 
for  the  prosecution  to  show  that  the  witness 
made  earlier  statements,  not  under  oath,  in 
the  absence  of  the  prisoner,  in  corroboration 
of  his  present  testimony.  Com.  v.  Jenkins, 
10  Gray,  485, 

411.  If  the  witness  be  charged  with  the 
design  to  misrepresent  on  account  of  his 
changed  relation  to  the  parties  or  the  cause, 
evidence  of  like  statements  before  such 
change  of  relation  may  be  admitted.  So  if 
it  is  attempted  to  be  shown  that  the  evidence 
is  a  recent  fabrication,  or  when  long  silence 
concerning  an  injury  is  construed  against 
the  ir  jured  party,  it  is  proper  to  show  that 
the  witness  made  similar  statements  soon 
after  the  transaction  in  question.  State  v. 
Vincent,  24  Iowa,  570. 

412.  Proof  of  good  character  of  witness. 
Any  inquiries  by  one  party  as  to  the  general 
reputation  for  truth  and  veracity  of  a  wit- 
ness introduced  by  the  other  party,  are  to 
be  considered  as  an  impeachment  of  the 
general  character  of  the  witness,  so  far  as  to 
open  that  subject  to  the  introduction  of  evi- 


dence to  sustain  his  good  character.  Com. 
V.  Ingraham,  7  Gray,  46 ;  Burrill  v.  State, 
18  Texas,  713. 

413.  In  California,  under  the  Code  (§§ 
2051,  2053),  when  it  has  been  proved  that 
a  witness  called  by  the  prosecution  has  been 
convicted  of  felony,  the  prosecution  may 
introduce  evidence  to  show  that  the  reputa- 
tion of  the  witness  for  truth  and  integrity  is 
good  in  the  community  where  he  lives. 
People  V.  Amanacus,  50  Cal.  233. 

414.  In  Connecticut,  where  on  a  trial  for 
an  attempt  to  commit  rape,  the  prosecutrix 
was  deaf  and  dumb,  and  she  offered  evi- 
dence to  show  that  her  general  character  for 
truth  was  good,  it  was  held  that  such  evi- 
dence was  proper,  although  no  impeachment 
of  her  character  had  been  attempted.  State 
V.  De  Wolf,  8  Conn.  93. 

415.  Where  a  material  witness  for  the 
prisoner,  on  cross-examination,  acknowl- 
edged that  he  had  been  complained  of,  and 
bound  over  upon  a  charge  of  passing  count- 
erfeit money,  it  was  held  that  the  prisoner 
was  called  on  to  give  evidence  of  the  wit- 
ness's good  character  for  truth.  Carter  v. 
People,  2  Hill,  817. 

416.  A  person  called  to  sustain  the  char- 
acter of  a  witness,  who  testifies  that  he  has 
known  the  witness  for  a  number  of  years, 
and  that  he  is  acquainted  with  his  associ- 
ates, but  not  with  his  general  character  for 
truth  and  veracity,  may  testify  that  he 
would  believe  him  on  oath.  People  v. 
Davis,  21  Wend.  309.  And  it  is  competent^ 
for  him  to  testify  that  he  has  never  heard  / 
the  character  of  the  witness  called  in  ques-/ 
tion.  Lemons  v.  State,  4  West  Va.  755 ; 
s.  c.  1  Green's  Crim.  Reps.  667.  But  a  per- 
son is  not  competent  to  testify  as  to  the 
general  character  of  a  witness  simply  be- 
cause he  has  known  him  several  years. 
State  V.  Speight,  69  N.  C.  72 ;  s.  c.  1  Green's 
Crim.  Eeps.  363.  The  credibility  of  a 
witness  sought  to  be  impeached,  is  exclu- 
sively a  question  for  the  jury.  Whitten  v. 
State,  47  Ga.  297;  s.  c.  1  Green's  Crim. 
Reps.  579. 

For  evidence  in  special  cases,  see  the  titles 
of  the  different  offenses. 


EXAMINATION  OF  PARTY  ARRESTED.— EXTORTION.  171 


Proceedings  on. 


What  Constitutes. 


toaminaticn  of  Partij 

Proceedings  on.  A  person  cannot  be 
removed  from  one  district  to  another  for 
examination.  He  is  first  to  be  taken  before 
the  proper  officer  in  the  district  where  he  is 
arrested,  who  is  to  examine  as  to  the  crime 
alleged.  If  thjre  is  not  probable  cause  of 
his  guilt,  he  is  to  be  discharged.  If  there 
be  found  reasonable  cause  for  holding  the 
accused  to  answer,  he  is  entitled,  upon  ten- 
dering sufficient  bail,  to  his  discharge  from 
arrest.  Only  on  a  failure  to  give  bail  in  a 
bailable  case,  can  he  be  committed  ;  and  an 
order  may  then  be  made  to  remove  him  to 
the  district  in  which  the  trial  is  to  be  had. 
U.  S.  V.  Shepard,  1  Abb.  431. 


<6iTcptiou0. 


See  Bill  of  exceptions. 


(Bjepcrts. 


See  Evidence. 


ifijctortion. 

1.  What  constitutes. 

2.  Indictment. 

3.  Evidence. 

1.  What  constitutes. 

1.  Meaning  of.  Extortion  at  common 
law  is  the  taking,  by  color  of  office,  money 
or  other  thing  of  value  that  is  not  due,  be- 
fore it  is  due,  or  more  than  is  due.  Com. 
V.  Wheatley,  6  Cow.  G61 ;  Williams  v. 
State,  2  Sneed,  160;  Com.  v.  Mitchell.  3 
Bush,  25;  Com.  v.  Bagley,  7  Pick.  246; 
Ming  V.  Truett,  1  Mont.  322. 

2.  When  committed.  Where  a  defend- 
ant appeared  before  a  justice  on  a  summons 
returnable  at  10  A.  M.,  and  waited  till  about 
12  o'clock,  when  the  justice  told  him  that 
he  (the  justice)  must  tax   the  plaintiff  with 


the  costs,  whereupon  the  defendant  went 
away;  but  the  justice  afterward  adjourned 
the  cause  to  another  day,  and  gave  judgment 
with  three  or  four  dollars  costs;  and  the 
defendant  afterward  paid  to  the  justice  the 
amount  for  which  the  suit  was  brought; 
and  the  justice  exacted  the  cpsts,  which  the 
defendant  refused  to  pay  in  full,  but  paid 
the  justice  12i  cents;  it  was  held  that  this 
was  extortion  in  the  justice,  for  which  he 
might  be  indicted  and  punished.  People  v. 
Wheatley,  6  Cow.  681. 

3.  In  Indiana,  where  a  county  treasurer 
exacted  and  received  from  a  taxpayer  a  fee 
as  for  a  distress  and  sale  of  his  goods  for 
taxes,  when  none  had  actually  been  made, 
it  was  held  that  he  was  guilty  of  extortion. 
State  v.  Burton,  3  lud.  93. 

4.  In  Massachusetts,  the  receiving  of  a  ne- 
gotiable promissory  note  by  an  officer  for 
fees  not  due,  will  not  sustain  an  indictment 
for  extortion  under  the  statute.  Com.  v. 
Carey,  2  Mass.  523;  Com.  v.  Pease,  16  lb. 
91 ;  Com.  v.  Dennie,  Thach.  Crim.  Cas. 
165. 

5.  Must  be  a  corrupt  intent.  In  Penn- 
sylvania, a  justice  of  the  peace  who  took 
larger  fees  than  the  law  allow'ed,  was  held 
not  guilty  of  extortion,  unless  he  did  it  with 
the  intention  of  oppressing.  Resp.  v.  Ham- 
mond, 1  Yeates,  71. 

6.  In  Alabama,  an  officer  cannot  be  con- 
victed of  extortion  (Code,  §  3225),  unless  he 
designedly  made  charges  for  services  which 
he  knew  had  not  been  rendered,  or  for  which 
he  knew  that  no  fees,  or  fees  other  than 
those  charged  were  allowed ;  and  the  fact 
that,  in  making  out  a  bill  of  costs,  the  whole 
amount  of  costs  charged  is  less  than  the  full 
amount  which  he  was  entitled  to  charge, 
although  some  illegal  items  are  included,  is 
a  strong  circumstance  to  show  the  absence 
of  the  corrupt  intent  w'hich  the  law  was  de- 
signed to  punish.  Cleaveland  v.  State,  34 
Ala.  254. 

7.  Voluntary  payment.  Vv'here  on  a 
trial  for  extortion,  it  appeared  that  the 
property  of  the  debtor,  sold  on  execution, 
was  sufficient  to  pay  the  officer's  fees,  but 
that  they  were  paid  by  the  creditor;  it  was 

!  held  that  as  such  fees   were  a  charge  to  the 


172 


EXTOETION.— FALSE   IMPEISONMENT. 


What  Constitutes. 


Indictment. 


Evidence. 


What  is. 


delitor,  and  the  payment  by  the  creditor  was 
therefore  volnntary,the  officer  was  not  guilty 
of  the  offense  charged.  Com.  v.  Dunnie, 
Tharli.  Ciim.  Cas.  1(15. 

8.  Unconstitutionality  of  statutes.  The 
exaction  from  a  broker,  of  fees  or  duties  on 
sales  of  imported  merchandise,  by  the  acts 

.of  New  York  of  1846  and  1866,  is  repugnant 
to  that  provision  of  the  Constitution  of  the 
United  States,  which  authorizes  Congress 
'"to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  and  with  the 
Indian  tribes."'  People  v.  Mo  ring,  3  N.  Y. 
Ct.  of  Appeals  Decis.  539 ;.  affi'g  47  Barb. 
M2 ;  s.  c.  3  Keyes,   374. 

2.  Indictjcent. 

9.  What  to  contain.  An  indictment  for 
extortion  should  state  what  was  clone,  and 
"what  was  received  beyond  the  lawful  fees. 
Halsey  v.  State,  1  South.  323.  Where  an  in- 
dictment charged  that  the  defendant,  as 
constable,  traveled  four  miles  to  serve  an 
execution,  for  which  travel  he  was  entitled 
as  mileage  to  sixteen  cents,  that  corruptly, 
&c.,  he  extorted  thirty-two  cents  for  such 
mileage,  w^hereas,  but  sixteen  cents  were  due, 
it  was  held  sufficient.  Emory  v.  State,  6 
Blackf.  107.  But  see  State  v.  Stotts,  5  lb. 
460,  where  it  was  held  that  the  indictment 
need  not  allege  what  the  defendant  ex- 
torted. 

10.  Where  the  indictment  charges  a  con- 
stable with  having  collected  more  than  was 
due  on  an  execution,  it  must  set  out  the  re- 
cital in  the  execution  showing  the  judgment 
on  which  the  execution  issued,  and  state 
the  names  of  both  parties  to  the  execution. 
Leary  v.  State,  6  Blackf.  403. 

11.  An  indictment  for  extortion,  may 
charge  that  the  money  was  extorted  from  the 
county.     State  v.  Moore,  1  Smith,  316. 

3.   EviDE>fCE. 

12.  Existence  and  delivery  of  writ. 
Where  an  officer  is  on  trial  for  extortion 
in  receiving  fees  in  the  service  of  a  writ, 
evidence  must  first  be  given  of  the  existence 
of  the  writ  and  its  delivery  to  the  officer. 
Leary  v.  State,  6  Blackf.  403. 

13.  Time.     Where    upon   the  trial   of  a 


deputy  sheriflf  for  extortion  in  receiving  fees 
in  the  service  of  a  writ  and  execution,  the 
indictment  charged  that  the  writ  bore  date 
the  20tli  day  of  a  certain  month,  and  it  was 
proved  that  the  wait  was  dated  the  10th  day 
of  the  same  month,  it  was  held  that  the  vari- 
ance was  fatal.  Com.  v.  Devine,  Tiiach. 
Crim.  Cas.  165. 

14.  Amount.  Where  an  indictment  for 
extortion  charged  a  constable  with  having 
collected  more  than  was  due  on  an  execu- 
tion for  $69,  and  the  execution  proved 
was  for  $110.43,  it  was  held  that  the  vari- 
ance was  material.  Leary  v.  State,  6  Blackf. 
403. 

15.  Officer's  return.  The  rule  that  the 
return  of  an  officer  cannot  be  impe&ched  in 
a  collateral  proceeding,  and  that  no  aver- 
ment can  be  made  against  it,  has  no  applica- 
tion to  the  trial  of  an  indictment  against 
an  officer  for  extortion;  but  in  such  case  the 
return  may  be  shown  to  be  false.  Williams 
V.  State,  2  Sneed,  160. 

See  Threatening  to  accuse  of  crime. 


CMtrabitiou. 


See  Fugitives  from  justice. 


fa\5C  3mpn0onmcnt 

1.  What  is.  To  stop  and  prevent  a  per- 
son, by  threats,  from  proceeding  on  a  public 
highway,  is  false  imprisonment  and  an  as- 
sault.    Bloomer  v.  State,  3  Sneed,  66. 

2.  Where  a  father,  without  a  pretense  of 
reasonable  cause,  confined  his  blind  and 
helpless  son  in  a  cold  and  damp  cellar  in 
midwinter,  without  fire,  during  several  days, 
assigning  as  a  reason  therefor,  that  the  boy 
was  covered  with  vermin,  it  was  held  that 
the  father  was  rightly  convicted  of  false  im- 
prisonment. Fletclier  v.  People,  52  111,  395. 
But  it  has  been  held  that  to  fasten  a  seaman 
to  the  deck  with  an  iron  chain,  who  has  been 
away  from  the  ship  for  two  nights  without 
leave,  in  order  to  prevent  his  escape,  is  not 
unlawful.  U.  S.  v.  Turner,  3  Wheeler's 
Crim.  Cas.  615. 


FALSE   IMPRISONMENT.— FALSE   PRETENSES. 


17;$ 


Indictment. 


What  Constitutes. 


3.  Indictment.  An  indictment  for  false 
imprisonment  must  cliarge  tliat  the  deten- 
tion was  without  lawful  authority;  and  the 
omission  of  such  an  averment  is  not  cured 
by  the  conclusion  "  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided." 
Redfield  v.  State,  24  Texas,  133.  See  Barber 
V.  State,  13  Fla.  675;  s.  c.  1  Green's  Crim. 
Reps.  733. 


fabc  |3vctcu5C0. 

1.  What  constitutes. 

2.  Affidavit  for  arrest. 

3.  Indictment. 

4.  Evidence. 


1.  What  constitutes. 

1.  Must  be  calculated  to   deceive.    A 

cheat  to  be  indictable  at  common  law,  must 
affect  the  public,  be  calculated  to  defraud 
individuals,  and  which  ordinary  care  and 
caution  cannot  guard  against ;  as  the  use  of 
false  weights  and  measures,  and  defrauding 
another  by  false  tokens.  People  v.  Stone,  9 
Wend.  182 ;  People  v.  Gates,  13  lb.  811 ;  Peo- 
ple v.  Herrick,  lb.  87;  People  v.  Johnson,  12 
Johns.  291.  To  constitute  a  false  pretense,  the 
false  representation  must  be  by  words  writ- 
ten or  spoken ;  and  they  must  be  such  that 
if  true,  they  would  naturally  and  according 
to  the  usual  operation  of  motives  upon  the 
human  mind,  guided  by  prudence,  produce 
the  alleged  results.  People  v.  Conger,  1 
Whedcr's  Crim.  Cas.  448;  Stats  v.  Delyon, 
1  Bay,  353;  People  v.  Williams,  4  Hill,  1; 
State  V.  Simpson,  3  Hawks,  G20;  State  v. 
Evers,  49  Mo.  542.  Therefore,  it  was  held 
on  demurrer,  that  an  indictment  for  obtain- 
ing a  watch  from  a  person  upon  the  false  rep- 
resentation that  the  defendant  was  a  con- 
stable, and  had  a  warrant  against  such  per- 
son for  rape,  and  that  he  would  settle  the 
same  if  the  j^erson  would  give  the  defendant 
the  watch,  could  not  be  maintained.  Peo- 
ple V.  Stetson,  4  Barb.  151. 

2.  Defendants  bought  goods  from  the 
prosecutor's  clerk,  and  gave  in  payment  an 
instrument  purporting  to  be  a  five  dollar 
bill,  of  the  Bank  of  Tallahassee,  the  blanks 


of  which  were  filled  up,  except  those  oppo- 
site the  words  cashier  and  president,  where 
there  was  an  illegible  scrawl,  which,  on 
casual  inspection,  might  have  been  mistaken 
for  the  names  of  the  officers.  Defendants 
knew  before  they  passed  the  instrument  that 
it  was  counterfeit.  Held,  cheating  by  a  false 
token  at  common  law.  State  v.  Stroll,  1 
Rich.  244.  In  another  case,  where  it  was 
proved  that  A.  owed  B.,  and  that  the  de- 
fendant, who  had  once  been  B.'s  agent  for 
collecting  bills,  but  whose  authority  had 
then  been  revoked,  though  without  notice 
to  A.,  presented  a  bill  of  B.'s  to  A.,  and  on 
receiving  payment  from  him  gave  a  valid 
discharge  on  behalf  of  B.,  and  then  fraud- 
ulently misapplied  the  money  to  his  own 
use,  it  was  held  sufficient  to  sustain  the  in- 
dictment.    Com.  V.  Call,  21  Pick.  509. 

3.  On  a  trial  for  obtaining  money  by  false 
pretenses  it  was  proved  that  R.  was  about 
eighteen  years  of  age,  and  unable  to  obtain 
his  bounty  money  without  having  a  guard- 
ian appointed ;  that  the  prisoner  had  falsely 
represented  himself  to  be  a  captain  in  the 
Sixth  New  York  Cavalry,  in  which  R.  en- 
listed ;  that  the  prisoner  showed  R.  a  roll  of 
money,  and  said  that  it  was  the  latter's 
bounty  money ;  that  the  prisoner  paid  him 
$50,  and  asked  him  to  let  the  prisoner  keep 
the  rest  of  it  for  him  for  a  few  days,  when 
he  would  pay  it  to  him ;  that  R.  at  this  time 
executed  an  assignment  of  his  $300  bounty 
to  tbe  prisoner;  that  the  prisoner  did  not  in 
fact  receive  the  bounty  money  until  the  next 
day,  and  that  he  then  obtained  it  through 
the  aid  of  the  said  assignment.  He^d,  that 
the  statement  that  the  prisoner  was  a  captain 
in  the  Sixth  New  York  Cavalry  was  a 
material  fact  which  would  be  likely  to  in- 
fluence a  person  of  ordinary  prudence.  Held, 
further,  that  it  was  not  erroneous  for  the 
court  to  charge  the  jury  that  if  at  the  time 
R.  executed  the  assignment  the  prisoner  had 
in  his  possession  the  amount  of  money 
mentioned  in  the  indictment,  and  it  was 
considered  by  both  parties  to  belong  to  R., 
and  the  defendant  would  have  paid  it  over 
to  R.  except  for  the  consent  of  R.  that  he 
might  retain  it,  that  v/as  just  as  much  an 
obtaining  of  the  $250  as  if  he  had  paid  it 


174 


FALSE  PRETENSES. 


What  Constitutes. 


over  to  R.  and  received  it  back.      People  v. 
Cooke,  6  Parker.  31. 

4.  Where  party  defrauded  has  means 
of  information.  A  false  affirmation  made 
to  a  party  who  has  the  same  means  of  knowl- 
edo^e  as  the  person  who  makes  it  as  to 
whether  the  affirmation  is  true  or  false  can- 
not be  the  basis  of  an  indictment  for  obtain- 
ing money  under  false  pretenses.  Com.  v. 
Norton,  11  Allen,  366.  Where  a  person  who 
had  from  time  to  time  deposited  money  in 
and  drawn  checks  upon  a  bank  in  a  fictitious 
name,  and  had  finally,  with  a  fraudulent  in- 
tent, drawn  a  check  when  he  had  no  funds 
on  deposit,  and  presented  it  himself,  and 
the  bank  paid  it,  though  without  regard  to 
the  credit  of  the  name,  it  was  held  not  false 
pretenses.     Com.  v.  Drew,  19  Pick.  179. 

5.  Mere  falsehood  is  not.  At  common 
law  an  indictment  cannot  be  maintained  for 
"a  naked  lie,"  or  simple  false  affirmation; 
State  V.  Mills,  17  Maine,  211 ;  nor  for  an  in- 
tention to  cheat.  Com.  v.  Morse,  8  Mass. 
138 ;  Com.  v.  Warren,  6  lb.  73. 

6.  Where  an  indictment  alleged  that  A., 
who  held  a  promissory  note  against  B., 
which  was  due,  called  for  payment,  and 
with  intent  to  defraud  B.  falsely  represented 
that  the  note  had  been  lost  or  burned,  where- 
by the  latter  was  induced  to  pay  it,  it  was 
held  not  a  false  pretense,  and  that  it  would 
not  have  been  if  A.,  after  obtaining  payment 
of  the  note,  negotiated  it  for  value  without 
notice  of  its  having  been  paid,  provided 
there  was  no  averment  that  A.  intended 
negotiating  it  when  he  made  the  representa- 
tion.    People  V.  Thomas,  3  Hill,  169. 

7.  A.  having  a  judgment  against  B.,  the 
latter  went  to  A.  and  said  he  would  settle  it 
by  paying  money  in  part,  and  giving  a  note 
for  the  residue,  upon  which  A.  drew  a 
receipt  in  full  in  discharge  of  the  judgment, 
and  B.  obtained  possession  of  the  receipt 
without  paying  the  money  or  giving  the 
note.  Held,  only  a  false  assertion,  and  that 
an  indictment  could  not  be  maintained. 
People  V.  Babcock,  7  Johns.  200. 

8.  Where  an  indictment  alleged  that  the 
defendant  obtained  A.'s  signature  to  a  deed 
of  land  by  falsely  representing  that  B.,  who 
held  a  bond  and  mortgage  against  A.,  was 


about  to  foreclose  the  mortgage,  and  that 
B.  had  so  told  the  defendant,  it  was  held 
that  the  pretenses  set  forth  were  not  suf- 
ficient to  warrant  a  conviction.  People  v. 
Williams,  4  Hill,  1. 

9.  A  deed  by  a  wife  conveying  real  estate 
belonging  to  her  in  her  own  right  was  ex- 
ecuted by  her  with  her  husband,  at  the 
solicitation  of  the  latter,  under  the  pretense 
that  it  was  a  deed  of  land  belonging  to  him, 
but  not  acknowledged  by  the  wife.  Held, 
not  such  an  instrument  as  was  intended  in 
the  statute.  People  v.  Galloway,  17  Wend. 
540. 

10.  An  indictment  charged  that  J.  held  a 
note  against  the  defendant,  on  which  there 
was  an  unpaid  balance  of  $32.64;  that  the 
defendant  falsely  represented  that  he  owned 
certain  tobacco  of  a  particular  description 
and  quality,  and  that  J.,  believing  these 
false  pretenses  and  representations,  was 
thereby  induced  to  give  the  defendant  credit 
on  said  note  for  said  sum  of  money,  and  to 
surrender  the  note  to  him,  when,  in  truth, 
the  tobacco  was  not  of  the  quality  and  de- 
scription represented,  but  was  of  no  value, 
which  the  defendant  knew.  Held,  not  false 
pretenses  within  the  meaning  of  the  statute. 
Com.  V.  Haughey,  3  Mete.  Ky.  323. 

11.  Must  have  been  part  of  inducement. 
To  sustain  an  indictment  for  false  pretenses, 
the  pretense  alleged  to  be  false  must  have 
formed  some  part  of  the  inducement  to  the 
doing  of  the  act,  and  been  made  for  the  pur- 
pose of  prevailing  upon  the  party  injured  to 
part  with  his  property,  or  to  do  the  act.  Both 
the  inducement  and  the  fraudulent  purpose 
are  facts  to  be  proved,  and  are  not  to  be  pre- 
sumed. Where  a  person  procures  the  aid  of 
an  agent,  or  broker,  to  assist  him  in  making 
sale  of  his  property,  real  or  personal,  and  is 
willing  and  proposes  to  such  agent  to  sell 
at  a  given  price,  but  at  the  suggestion  of  the 
agent  consents  to  ask  a  higher  price,  and  to 
give  the  difference  between  the  two  prices  to 
the  agent,  in  case  the  higher  price  can  be 
obtained,  neither  the  principal  nor  the  agent 
can  be  convicted  of  obtaining  money,  or  the 
signature  of  the  purchaser  to  obligations, 
by  false  pretenses  in  regard  to  the  price,  even 
though  they  had  pretended  that  the  higher 


FALSE   PRETENSES. 


175 


What  Constitutes. 


price  was  the  true  and  only  price,  and  that 
they  would  refuse  to  sell  for  auj'thing  less. 
Scott  V.  People,  62  Barb.  63,  Mullin,  P.  J., 
dismnting. 

12.  But  if  the  jury  believe,  from  the  evi- 
dence, that  the  pretenses  pioved  to  have 
been  false  and  fraudulent  were  a  part  of  the 
moving  causes  which  induced  the  owner  to 
part  with  his  property,  and  that  the  defend- 
ant would  not  have  got  the  goods  had  not 
the  false  pretenses  been  superadded  to  state- 
ments which  may  have  been  true,  or  to 
other  circumstances  having  a  partial  in- 
fluence upon  the  mind  of  the  owner,  they 
will  be  justified  in  finding  the  defendant 
guilty.  People  v.  Haynes,  14  Wend.  546 ; 
State  V.  Thacher,  35  N.  J.  445;  s.  c.  1 
Green's  Crim.  Re2)s.  563. 

13.  Must  relate  to  past  event.  The  es- 
sence of  the  ofl'ense  of  oljtaining  money  or 
property  by  false  pretenses,  is  that  the  false 
pretense  should  be  of  a  past  event,  or  of  a 
fact  having  a  present  existence,  and  not  of 
something  to  happen  in  the  future.  State 
V.  Evers,  49  Mo.  543  ;  Dillingham  v.  State, 
5  Ohio,  N.  S.  380;  Johnson  v.  State,  41 
Texas,  65.  The  following  instruction  was 
therefore  held  bad:  That  the  defendant, 
with  intent  to  cheat  and  defraud,  falsely 
represented  to  A.  that  B.  was  indebted  to 
defendant,  and  if  A.  would  lend  defendant 
five  dollars,  B.  would,  on  demand,  repay  it ; 
and  A.,  believing  from  such  representations 
that  B.  was  so  indebted,  and  would  repay 
him,  loaned  to  the  defendant  five  dollars; 
and  that  in  truth  and  in  fact  the  representa- 
tions so  made  were  false  and  fraudulent. 
State  v.  Magee,  11  Ind.  154. 

14.  The  ofiense  charged  consisted  in  a 
false  representation  made  by  the  prisoner  to 
one  H.,  that  he  could  give  him  employment, 
and  pay  him  fifty  dollars  a  month  for  his 
services,  H.  depositing  $100  as  security  for 
the  faithful  performance  of  the  contract. 
Held  not  indictable  at  common  law,  or  un- 
der the  statute  of  New  York.  Ranney  v. 
People,  33  N.  Y.  413. 

15.  But  in  Massachusetts,  where  the  pro- 
prietor of  an  intelligence  office  agreed  to 
procure  a  place  for  an  applicant  in  considera- 
tion of   two   dollars  paid  in  advance,  and 


falsely  stated  that  he  had  a  situation  in 
view,  and  the  money  was  accordingly  paid, 
he  was  held  guilty  of  obtaining  money  by 
false  pretenses.  Com.  v.  Parker,  Thach. 
Crim.  Cas.  124. 

16.  The  defendant  represented  to  the 
prosecutor  that  if  he  would  let  him  have 
$30,  he  would  go  and  work  it  out  with  him. 
The  prosecutor  let  him  have  the  money,  and 
the  prisoner  refused  to  comply  with  his  con- 
tract. Held,  that  an  indictment  for  being  a 
common  cheat  and  swindler  could  not  be 
sustained.     Ryan  v.  State,  45  Ga.  138. 

17.  Where  it  was  charged  that  the  defend- 
ant promised  that  he  would  assign  to  A.  a 
certain  note  which  he  had  before  that  time, 
for  a  valuable  consideration,  passed  to  him, 
and  that  by  means  of  this  false  pretense  he 
obtained  the  note  with  intent  to  cheat  and 
defraud  A.,  and  then  failed  to  assign  or  re- 
turn tlie  note  to  him,  it  was  held  not  a  false 
pretense  within  the  meaning  of  the  statute 
of  Arkansas  (Dig.  345,  art.  8),  because  the 
promise  was  an  agreement  to  do  a  future 
act.     McKenzie  v.  State,  6  Eng.  594. 

18.  Where  the  false  ])retenses  charged  re- 
lated to  the  payment  of  the  proceeds  of  a 
cow  and  calf  when  sold,  the  procurance  of 
another  house  for  the  party  injured,  and  her 
removal  thereto,  free  of  expense,  it  was  held 
that  the  indictment  was  insufficient,  Glackan 
V.  Com.  3  Mete.  Ky.  333. 

19.  Property  must  have  passed.  To  con- 
stitute the  obtaining  of  money  or  goods  un- 
der false  pretenses,  the  owner  must  have  in- 
tended to  part  with  the  right  of  property. 
If  the  legal  possession  remains  in  the  owner, 
it  will  be  larceny;  but  if  a  right  of  property 
passes,  the  offense  is  the  obtaining  of  goods 
under  false  pretenses.  State  v.  Vickery,  10 
Texas,  336. 

20.  Where  a  jierson  obtained  possession 
of  a  promissory  note  by  pretending  that  he 
wished  to  look  at  it,  and  then  carried  it 
away,  and  refused  to  give  it  back  to  the 
holder,  it  was  held  that  this  was  merely  a 
private  fraud,  and  not  indictable.  People 
V.  Miller,  14  Johns.  370. 

21.  A  false  representation  inducing  a  per- 
son to  pay  a  debt  previously  due  from  him  is 


17G 


FALSE  PEETENSES. 


What  Constitutes. 


not  an  obtaining  of  property  by  false  pre- 
tenses.    People  V.  Thomas,  3  Hill,  169. 

22.  An  indictment  cannot  be  maintained 
for  obtaining  money  by  false  pretenses  where 
the  money  is  parted  with  as  a  charitable 
gift.     People  V.  Clough,  17  Wend.  351. 

23.  It  is  not  a  cheating  by  false  pretenses 
to  obtain  from  a  minor  his  note,  which  at 
the  time  of  the  prosecution  is  not  due  or 
paid.  Com.  v.  Lancaster,  Thach.  Crim.  Cas. 
428. 

24.  Where  the  defendants  conspired  to 
cheat  and  defraud  P.,  by  obtaining  from  him 
valuable  papers  by  means  of  an  altered  deed, 
which  alteration  was  not  material,  though 
they  at  the  time  supposed  it  was,  it  was  held 
that  they  were  not  entitled  to  acquittal  on 
the  ground  that  they  failed  to  accomplish 
their  object.  State  v.Mayberry,  48  Maine,  218. 

25.  But  where  after  delivei'y,  the  seller  on 
receiving  information  making  hiih  suspi- 
cious of  the  solvency  of  the  buyer,  said  that 
he  would  reclaim  tlie  goods,  and  the  buyer 
then  made  false  representations  as  to  his 
ability  to  pay  for  the  goods,  by  means  of 
which  the  seller  abandoned  his  intention  to 
reclaim  them,  it  was  held  that  the  sale  being 
complete  before  the  representations  were 
made,  the  accused  could  not  be  convicted. 
People  v.  Haynes,  14  Wend.  546. 

26.  The  property  must  have  been  parted 
with  for  an  honest  purpose.  If  the  person 
injured,  in  parting  with  his  property  was 
himself  guilty  of  a  crime,  he  will  not  be 
protected.  People  v.  Stetson,  4  Barb.  151. 
The  design  of  the  law  against  obtaining 
money  under  false  pi'etenses  is  to  protect 
those  who  for  some  honest  purpose  are  in- 
duced upon  false  and  fraudulent  representa- 
tions to  give  credit  or  part  with  their  prop- 
erty to  another,  and  not  to  protect  those 
who  for  unworthy  or, illegal  purposes  part 
with  their  goods.  Where,  therefore,  the 
indictment  alleged  that  the  prisoner,  intend- 
ing to  cheat  and  defraud  one  M.,  mduced 
him,  by  falsely  and  fraudulently  pretending 
that  he  had  a  warrant  against  him,  to  de- 
liver to  the  prisoner  a  gold  watch  and 
diamond  ring,  it  was  held  that  a  conviction 
could  not  be  sustained.  McCord  v.  People, 
46  N.  Y.  470. 


27.  But  it  is  no  defense  to  an  indictment 
for  obtaining  goods  by  false  pretenses  that 
the  party  defrauded  made  false  representa- 
tions to  tlie  defendant  as  to  the  goods,  or 
that  the  goods  were  of  less  value  than 
charged  in  the  indictment.  Com.  v.  Mer- 
rill, 8  Cush.  571. 

28.  Intention  to  restore  property.  Where 
money  is  obtained  from  another  by  false  pre- 
tenses, neither  the  intention  or  ability  to 
repay  it  will  deprive  the  false  and  fraudu- 
lent act  of  its  criminality.  Com.  v.  Coe,  115 
Mass.  481 ;  s.  r.  2  Green's  Crim.  Reps.  292 ; 
State  V.  Thacher,  35  N.  J.  445 ;  s.  c.  1  Green's 
Crim.  Reps.  562. 

29.  To  take  from  their  place  of  deposit 
the  bonds  of  a  depositor,  and  send  them  out 
of  the  State  to  be  used  as  collateral  security 
for  the  defendant's  own  debt  is  a  fraudulent 
conversion,  and  the  intention  to  restore  the 
bonds,  and  the  agreement  of  the  party  who 
received  them  not  to  sell  or  dispose  of  them, 
does  not  do  away  with  the  criminal  nature 
of  the  transaction.  Com.  v.  Tenney,  97 
Mass.  50. 

30.  False  statement  as  to  ownership  of 
property.  An  indictment  may  be  main- 
tained for  obtaining  goods  by  false  pretenses 
when  a  party  represents  that  he  is  the 
owner  of  property  which  does  not  belong  to 
him,  and  thus  fraudulently  induces  the 
owner  to  sell  the  goods  to  him  on  credit. 
People  V.  Kendall,  25  Wend.  399.  Proof 
that  the  defendant  obtained  from  another 
three  tubs  of  butter,  by  falsely  pretending 
that  he  was  a  grocer  and  resided  at  a  partic- 
ular place,  was  held  sufficient  to  sustain  an 
indictment  for  obtaining  property  by  false 
pretenses.  People  v.  Dalton,  2  Wlieeler's 
Crim.  Cas.  181. 

31.  Where,  upon  an  exchange  of  goods, 
one  of  the  parties  falsely  and  fraudulently 
pretends  that  the  property  which  he  is  part- 
ing with  belongs  to  him,  and  is  unencum- 
bered, and  also  warrants  it  against  encum- 
brances, an  indictment  may  be  sustained 
against  him  where  the  false  pretenses  and 
not  the  warranty  were  the  inducement  in 
making  the  exchange.  State  v.  Dorr,  33 
Maine  (3  Red.)  498. 

32.  False  statement  as  to  situation  or 


FALSE   PRETENSES. 


177 


What  Constitutes. 


occurrence.  It  is  a  false  pretense  where  a 
party  has  obtained  goods  by  falsely  repre- 
senting himself  to  be  in  a  situation  in  ■which 
he  was  not,  or  by  falsely  representing  any 
occurrence  that  had  not  happened,  to  which 
persons  of  ordinary  caution  might  give 
credit,  McCorkle  v.  State,  1  Cold.  Tenn. 
333. 

33.  Swearing  falsely  to  the  loss  by  fire  of 
goods  which  have  been  insured,  and  thereby 
getting  the  value  of  them  from  the  insurance 
company,  is  obtaining  money  by  false  pre- 
tenses. People  V.  Byrd,  1  Wheeler's  Crim. 
Cas.  242. 

34.  In  purchase  or  sale  of  goods.  A 
conspiracy  to  cheat  and  defraud  another  of 
goods,  by  obtaining  the  same  on  credit  by 
falsely  pretending  that  the  party  intended  to 
take  them  to  his  store  and  sell  them  in  the 
ordinary  course  of  retail  trade,  is  indictable 
as  a  conspiracy  to  obtain  the  goods  by  false 
pretenses  under  the  statute  of  Massachu- 
setts (Gen,  Stats,  ch.  IGl,  §  64,  and  Stat,  of 
1863,  ch.  248,  §  2),  Com,  v.  Walker,  108 
Mass.  309. 

35.  An  indictment  was  sustained  against 
a  baker  employed  by  the  army  of  the  United 
States  for  a  cheat  in  baking  219  barrels  of 
bread  and  marking  them  as  weighing  88  lbs. 
each,  whereas  they  only  weighed  68  lbs. 
Resp.  v.  Powell,  1  Dall.  47. 

36.  An  indictment  charged  that  the  de- 
fendant, in  an  exchange  of  horses  with  one 
S.,  knowingly,  designedly  and  falsely  pre- 
tended that  his  (defendant's)  horse  was 
sound,  when  in  fact  it  was  not;  that  S.  be- 
lieved said  false  pretense,  and  was  thereby 
deceived  and  induced  to  exchange  and  de- 
liver his  horse  to  the  defendant,  and  was 
thus  defrauded.  Held  a  false  pretense  with- 
in the  statute  of  Maine  (R.  S.  ch.  126,  §  1). 
State  V.  Stanley,  64  Maine,  157. 

37.  A  person  sold  to  another  several  bar- 
rels of  turpentine,  representing  that  "  they 
were  all  right,  just  as  good  at  the  bottom 
as  they  were  at  the  top."  The  barrels  were 
afterward  found  to  contain  only  a  small 
quantity  of  turpentine  on  the  top  of  each, 
the  remainder  being  chips  and  dirt.  Held 
a  cheating  by  false  tokens.  State  v.  Jones, 
70  N.  C.  75. ' 

12 


38.  In  payment  of  money.  The  defend- 
ant, knowing  that  it  was  not  genuine,  passed 
a  bill  or  paper  having  the  appearance  of 
having  been  long  used,  and  printed  in  the 
ordinary  form  of  a  bank  bill,  but  not  signed 
by  any  one  as  president  or  cashier.  The 
jury  found  him  guilty  of  swindling,  and  the 
verdict  was  sustained.  State  v.  Grooms,  5 
Strobh,  158, 

39.  Where  spurious  coin  is  not  a  repre- 
sentation of  genuine  coin,  but  an  imitation 
of  it  only  on  one  side,  it  is  not  a  counterfeit, 
but  a  false  pretense  to  obtain  money  or 
property  fraudulently,  Roberts  v.  State,  2 
Head,  501, 

40.  Obtaining  note.  Inducing  an  illiter- 
ate jjerson,  by  false  representations,  to  sign 
a  note  for  a  different  amount  from  that 
agreed  on,  is  indictable  as  a  cheat.  Hill  v. 
State,  1  Yerg,  76, 

41.  An  indictment  will  lie  for  obtaining  a 
note  or  contract  of  suretyship  by  false  pre- 
tenses. State  V.  Thatcher,  6  Vroom  (35  N, 
J,)  445 ;  s,  c,  1  Green's  Crim.  Reps,  562. 

42.  Between  creditor  and  debtor.  Where, 
by  means  of  false  representations,  a  creditor 
makes  his  debtor  believe  that  the  debtor 
will  receive  a  new  and  valuable  considera- 
tion, and  induces  the  debtor  to  part  with 
money  therefor  (the  creditor,  at  the  time  he 
takes  the  money,  intending  not  to  give  the 
new  consideration,  and  accordingly  never 
giving  it,  but  ajiplying  the  money  to  the 
payment  of  the  old  debt),  he  is  guilty  of 
obtaining  property  by  false  pretenses.  Peo- 
ple V,  Smith,  5  Parker,  490,  Sutherland,  J., 
dissenting. 

43.  A  false  representation  made  by  a 
debtor  to  his  creditor,  that  the  debtor  is 
insolvent,  whereby  the  creditor  is  induced 
to  part  with  his  claim  at  a  sacriiice,  is  ob- 
taining property  by  false  pretenses,  and  in- 
dictable.    State  V.  Tomlin,  5  Dutch.  13, 

44.  On  the  trial  of  an  indictment,  under 
the  statute  of  New  HamiDshire,  for  fraudu- 
lently mortgaging  personal  property  to  pre- 
vent it  from  being  taken  on  mesne  process, 
the  defendant  may  be  convicted  if  heftilsely 
described  the  debt  or  obligation  in  the 
mortgage,  and  made  the  mortgage  for  the 
purpose  of  preventing  the  mortgaged  prop- 


178 


FALSE  PEETENSES. 


What  Constitutes. 


city  from  being  taken  for  his  debts,  although, 
in  so  doing,  he  acted  under  the  advice  of 
legal  counsel.  State  v.  Marsh,  36  New  Hamp. 
196. 

45.  Under  the  statute  of  New  York.  In 
New  York,  to  constitute  the  obtaining  of 
goods  by  folse  pretenses,  it  is  not  necessary 
that  there  should  be  any  false  token,  or  that 
the  false  pretenses  should  be  such  as  that 
ordinary  care  and  common  prudence  were 
insufficient  to  guard  against.  The  offense 
may  be  committed  by  intentionally  and 
fraudulently  prevailing  upon  the  owner  to 
part  with  his  goods,  or  other  things  of 
value,  either  by  falsehood  or  by  the  offend- 
er's assuming  a  false  character,  or  by  repre- 
senting himself  to  be  in  a  situation  which 
he  knows  he  does  not  occupy.  People  v. 
Haynes,  14  Wend.  546;  11  lb.  557. 

46.  In  New  York,  to  constitute  obtaining 
property  by  false  pretenses,  two  things  are 
necessary,  viz. :  a  false  representation  as  to 
an  existing  fact,  and  a  reliance  upon  the 
representation  as  true.  A.  agreed  to  sell 
to  B.  one  hundred  shares  of  stock,  to  be 
delivered  and  paid  for,  the  next  day;  be- 
fore transferring  the  stock,  A.  sent  for  B.'s 
check,  and  received  for  answer  that  B.  had 
sent  his  check  to  be  certified,  and  would 
send  it  to  A.  in  ten  or  fifteen  minutes ;  and 
A.  thereupon  transferred  the  stock  to  B. 
Held  that,  as  A.'s  reliance  was  on  the  promise 
and  not  upon  the  representation  that  the 
check  had  been  sent  to  be  certified,  the  case 
was  not  within  the  statute.  People  v.Tomp- 
kins,  1  Parker,  324. 

47.  The  offense  of  obtaining  property  by 
false  pretenses  is  complete  within  the  stat- 
ute of  New  York,  when  one  is  induced  to 
put  his  signature  to  a  written  instrument, 
or  to  part  with  his  property  by  a  false  pre- 
tense or  representation  as  to  an  existing  fact, 
willfully  and  designedly  made  for  the  pur- 
pose of  obtaining  such  signature  or  prop- 
erty with  the  intent  to  cheat  or  defraud 
him ;  and  it  is  not  necessary  that  the  pre- 
tense should  be  such  that  ordinary  care  and 
circumspection  could  not  have  prevented 
it,  or  that  it  should  be  accompanied  by 
any  "artful  contrivance."  It  is  sufiicient 
if  it  be  such  that,  if  true,  it  would  naturally 


and  according  to  the  motives  which  influ- 
ence the  honest  mind,  lead  to  the  result.  It 
is  not  essential  to  the  offense  under  the  stat- 
ute, that  actual  loss  or  injury  should  be  sus- 
tained. Neither  is  it  material  where  the 
pretenses  were  made.  The  obtaining  the 
signature  or  property  by  means  of  them, 
with  intent  to  cheat  or  defraud,  completes 
the  crime  and  determines  the  place  of  trial. 
People  V.  Sully,  5  Parker,  142 ;  People  v. 
Stone,  9  Wend.  182. 

48.  In  New  York,  to  constitute  the  ob- 
taining of  the  signature  of  a  person  to  a  writ- 
ten instrument  by  false  pretenses,  within  the 
statute,  the  iustrument  must  be  such  as  to 
work  prejudice  to  the  property  of  the  per- 
son affixing  the  signature,  or  of  some  other 
person.  People  v.  Galloway,  17  Wend.  540. 
A  writing  in  the  form  of  a  bond,  without 
signature,  is  not  a  false  writing  within  the 
statute  of  New  York.  People  v.  Gates,  13 
Wend.  311. 

49.  Buying  or  receiving  and  storing  for 
hire,  by  false  weights  or  measures,  is  a  mis- 
demeanor at  common  law,  and  in  New  York, 
being  now  a  felony  by  statute,  the  misde- 
meanor is  merged  in  the  felony.  People  v. 
Fish,  4  Parker,  206. 

50.  To  render  a  party  making  a  sale  liable 
under  the  statute  of  New  York  (Laws  of 
1862,  1863),  entitled  "an  act  to  prevent  and 
punish  the  use  of  false  stamps,  labels,  or 
trade-marks,"  the  sale  must  have  been  made 
with  intent  to  defraud  some  person  or  per- 
sons, or  some  body  corporate.  Low  v.  Hall, 
47  N.  Y.  104. 

51.  Under  the  statute  of  Massachusetts. 
A  false  pretense  under  the  statute  of  Massa- 
chusetts, is  a  representation  of  some  fact  or 
circumstance  calculated  to  mislead,  which  is 
not  true,  with  a  fraudulent  intent.  Com.  v. 
Drew,  19  Pick.  179.  Where  the  defendant 
took  an  assumed  name,  and  delivered  spu- 
rious quarter  lottery  tickets  to  another  for 
sale  on  commission,  declaring  that  he  had 
in  a  bank  the  genuine  corresponding  whole 
tickets,  and  thereby  obtained  money,  it  was 
held  to  be  false  pretenses  within  the  statute 
of  1815,  ch.  136.  Com.  v.  Wilgus,  4  Pick. 
177. 

52.  In  Massachusetts,  the  statute  against 


FALSE   PRETENSES. 


179 


What  Constitutes. 


obtaining  money  by  false  pretenses  (Gen. 
Stats.  cL.  161,  §  54),  includes  cases  where  the 
money  is  parted  with  as  a  charitable  dona- 
tion.    Com.  T.  Whitcomb,  107  Mass.  48G. 

53.  In  Pennsylvania.  A  false  statement 
as  to  the  possession  of  money,  on  the  credit 
of  which  goods  are  obtained,  is  a  false  pre- 
tense within  the  Pennsylvania  act  of  1812. 
Com.  V.  Burdick,  2  Barr,  163. 

54.  A  conspiracy  to  cheat  by  offering  to 
sell  forged  foreign  bank  notes,  is  indictable 
in  Pennsylvania.  Twitchell  v.  Com.  9  Barr, 
211.  And  see  Rhoads  v.  Com.  15  Penn.  St. 
272.  Cheating  with  false  dice  is  an  indict- 
able offense  in  that  State.  Resp.  v.  Teischer, 
1  Dall.  335. 

55.  Obtaining  a  receipt  in  discharge  of  a 
debt  which  was  paid  with  the  worthless 
note  of  a  broken  bank,  is  not  the  obtaining 
money,  personal  property,  or  other  valuable 
thing,  by  false  tokens  or  false  pretenses, 
■within  the  statute  of  Pennsylvania  (of  1842, 
§  21).     Moore  v.  Com.  8  Barr,  260. 

56.  In  Ohio  and  Michigan.  In  Michi- 
gan, jjrocuring  by  falsehood  the  indorse- 
ment of  a  promissory  note  is  not  a  false 
pretense  within  the  statute,  unless  done  with 
the  intent  to  defraud  ;  and  in  such  case,  the 
intent  being  the  gist  of  the  offense,  must  be 
shown  beyond  a  reasonable  doubt.  People 
V.  Getchell,  6  Mich.  498.  Whether  procur- 
ing, by  false  pretenses,  the  signature  of  a 
part5'  to  a  negotiable  promissory  note,  which 
he  is  ultimately  compelled  to  pay,  is  an  of- 
fense within  the  statute  of  Ohio — query.  Dil- 
lingham y.  State,  5  Ohio,  N.  S.  280. 

57.  In  Iowa.  In  Iowa,  under  the  statute 
(Rev.  §  4394),  an  indictment  for  cheating  by 
false  pretenses  may  be  maintained,  although 
no  false  tokens  were  used,  and  the  acts  im- 
puted to  the  defendant  were  of  private  and 
not  public  concern.  State  v.  Reidel,  26 
Iowa,  430. 

58.  The  obtaining  of  an  indorsement  or 
credit  upon  a  promi-sory  note,  is  not  an  ob- 
taining of  property,  money,  or  goods  by 
false  pretenses,  within  the  meaning  of  the 
statute  of  Iowa.-  State  v.  Moore,  15  Iowa, 
412. 

59.  In  North  Carolina.  In  North  Caro- 
lina, a  fraud  on  an  individual,  without  false 


token  or  any  deceitful  practice  affecting  the 
community  at  large,  and  without  conspiracy, 
is  not  indictable.  State  v.  Justice,  2  Dev. 
199. 

60.  In  South  Carolina.  In  South  Caro- 
lina, obtaining  horses  from  an  ignorant 
countryman  by  threats  of  a  criminal  prose- 
cution for  horse  stealing,  and  by  threatening 
his  life,  constitutes  the  offense  of  swindling 
under  the  act  of  1791.  State  v.  Vaughan,  1 
Bay,  282. 

61.  Selling  a  promissory  note  which  the 
party  selling  knew  had  been  paid,  but  which 
he  represented  to  the  purchaser  to  be  still 
due  according  to  its  face,  is  not  an  indict- 
able offense  in  South  Carolina.  Middleton 
V.  State,  Dudley,  275. 

62.  Under  acts  of  Congress.  To  sustain 
an  indictment  under  the  act  of  Congress  of 
March  3d,  1823,  §  1  (3  U.  S.  Stat,  at  Large, 
771),  for  presenting  a  false  paper  in  support 
of  a  claim  against  the  United  States,  it  is 
not  necessary  that  the  claim  should  be  in 
favor  of  the  person  who  presents  the  false 
paper.     U.  S.  v.  Kohnstamm,  5  Blatchf.  222. 

63.  A  person  who,  while  engaged  in  a  re- 
tail trade,  purchases  large  quantities  of 
goods  ostensibly  in  his  regular  business,  but 
sends  them  away  and  sells  them  at  whole- 
sale at  a  sacrifice,  is  guilty  of  a  false  pre- 
tense under  the  44th  section  of  the  bankrupt 
act.     U.  S.  V.  Frank,  2  Biss.  263. 

64.  To  bailee  or  agent.  The  defendant 
may  be  convicted,  although  the  money  be- 
longed to  another,  and  was  in  the  custody 
of  the  prosecutor  as  bailee.  Britt  v.  State, 
9  Humph.  31. 

65.  A  false  pretense  to  an  agent  who 
communicates  it  to  his  principal,  who  is 
induced  by  it  to  act  in  the  matter,  is  a  false 
pretense  to  the  principal.  And  the  same  is 
true  as  to  obtaining  money  by  false  pretenses 
from  an  agent,  who  pays  it  by  direction  of 
his  principal.     Com.  v.  Call,  21  Pick.  59. 

68.  By  one  of  several.  When  false  pre- 
tenses are  made  by  one  of  several,  pursuant 
to  an  agreement  made  between  them,  all  are 
liable.     Cowan  v.  People,  14  111.  348. 

67.  When  completed.  The  offense  of 
cheating  by  false  pretences  is  completed, 
when   the   false   pretenses   are  successfully 


180 


FALSE   PRETENSES. 


Affidavit  for  Arrest. 


Indictment. 


employed,  and  the  money  or  property  ob- 
tained, although  the  fraud  was  contrived  in 
another  place.  People  v.  Adams,  3  Denio, 
190.  A  single  false  pretense  is  sufficient. 
State  V.  Dunlap,  24  Maine,  77 ;  and  it  is  not 
essential  that  actual  loss  has  been  sustained. 
State  Y.  Pryor,  80  lud.  350. 

2.  Affidavit  for  arrest. 

68.  What  to  contain.  An  affidavit  for 
the  arrest  of  a  person  for  fraudulently  ob- 
taining goods,  must  set  out  all  the  facts, 
and  they  must  be  averred  positively.  And 
•where  any  of  the  facts  relied  upon  are  derived 
from  information,  they  may  be  so  stated ; 
but  the  sources  and  nature  ©f  the  information 
must  be  stated,  and  good  reasons  given,  for 
not  making  a  positive  statement.  Whitlock 
V.  Roth,  10  Barb.  78. 

3.  Indictment. 

69.  Must  charge  means.  An  indictment 
for  false  pretenses  cannot  be  predicated  upon 
mere  matters  of  opinion ;  and  it  must  allege 
that  the  money  or  property  was  obtained  by 
means  of  the  false  representations.  State  v. 
Webb,  26  Iowa,  263;  State  v.  Orvis,  13  Ind. 
569. 

70.  Where  in  an  indictment  for  obtaining 
property  by  false  pretenses,  there  was  no 
direct  averment  that  the  pretenses  had  any 
influence  upon  the  mind  of  the  prosecutor, 
it  was  held  that  although  it  would  have 
been  more  in  accordance  with  the  rules  of 
pleading,  to  have  inserted  such  an  allegation, 
yet  as  it  was  alleged  that  by  the  false 
pretenses  the  prisoner  obtained  the  property 
it  was  held  that  the  indictment  was  sufficient. 
Clark  V.  People,  2  Lans.  329 ;  disapproving 
State  V.  Philbrick,  31  Maine,  401. 

71.  By  sale  or  exchange  of  property. 
Where  money  or  other  property  is  obtained 
by  a  sale  or  exchange  effected  by  means  of 
false  pretenses,  such  sale  or  exchange  ought 
to  be  set  forth  in  the  indictment,  and  the 
false  pretenses  should  be  alleged  to  have 
been  made  with  a  view  to  effect  such  sale 
or  exchange,  and  that  by  reason  thereof  the 
party  was  induced  to  buy  or  exchange. 
State  V.  Bonnell,  46  Mo.  395 ;  referring  to 
Com.  V.  Strain,  10  Mete.  521. 


72.  An  indictment  charged  that  the  de- 
fendant presented  to  one  N.  certain  checks, 
and  represented  to  him  that  they  wei'e  good, 
and  of  nearly  par  value,  by  means  of  which 
pretense  he  obtained  from  N.  a  set  of 
harness.  Jleld,  bad  in  not  alleging  that  the 
checks  were  delivered  to  N.  or  received  by 
him  in  payment  for  the  haniess.  Johnson 
V,  State,  11  Ind.  481. 

73.  An  indictment  for  obtaining  money 
by  falsely  representing  a  promissory  note  to 
be  a  draft,  must  state  how  the  instrument 
was  defective.  State  v.  Dyer,  41  Texas, 
520. 

74.  An  indictment  for  obtaining  by  false 
pretenses,  a  bank  check  in  exchange  for  a 
note  is  insufficient,  which  fails  to  allege  that 
the  defendant  delivered  the  note  to  the 
complainant,  and  that  he  received  the  same, 
and  that  the  defendant  by  said  false  repre- 
sentations induced  the  complainant  to  re- 
ceive it,  and  that  the  latter  then  and  there 
delivered  the  check  to  the  defendant.  Com. 
V.  Goddard,  4  Allen,  312. 

75.  An  indictment  for  a  conspiracy  to 
cheat,  by  offering  to  sell  forged  foreign 
bank  notes  of  a  denomination  the  circula- 
tion of  which  was  forbidden  by  law,  charged 
that  the  defendants  in  pursuance  of  their 
conspiracy  did  ' '  offer  to  sell,  pass,  utter 
and  jDublish  to,"  &c.  Held  sufficient. 
Twitchell  v.  Com.  8  Barr,  260. 

76.  Where  an  indictment  charged  that 
the  defendant  falsely  pretended  that  a 
certain  certificate  of  shares  of  stock  was 
genuine,  and  good  as  security  for  a  loan  of 
money  which  F.  was  induced  to  make  to 
him  thereon  ;  and  the  certificate,  which  was 
set  forth,  stated  that  F.  was  the  owner  of 
the  stock,  it  was  held  that  as  the  certificate, 
although  previously  made  in  the  name  of 
the  lender,  would  not  become  his  in  fact 
until  the  loan  was  perfected  and  the  certifi- 
cate delivered  to  him,  the  indictment 
sufficiently  showed  in  what  manner  F.  was 
defrauded.  As  the  indorsements  on  the 
certificate  form  no  part  of  it,  they  need  not 
be  set  out.  Com.  v.  Coe,  115  Mass.  481; 
s.  c.  2  Green's  Crim.  Reps.  292. 

77.  Where  an  indictment  charged  that 
the  defendant,  by  false  pretenses,  intended 


FALSE   PRETENSES. 


181 


Indictment. 


to  cheat  and  defraud  G.,  and  proposed  an 
exchange  of  bis  mare  for  the  horse  of  G., 
without  alleging  that  such  an  exchange  took 
place,  or  that  the  false  pretenses  were  made 
with  a  view  or  design  to  effect  such  ex- 
change, it  was  held  insufficient.  State  v. 
Philbrick,  31  Maine,  401. 

78.  In  Connecticut,  an  information  which 
alleged  that  A.,  of,  &c.,  contriving  and  in- 
tending by  false  pretenses  to  cheat  and 
defraud  B.  of  his  goods,  to  wit,  of  one  pair 
of  oxen  of  the  value  of,  «&c.,  falsely  repre- 
sented to  B.  that  he,  the  said  A.,  owned  a 
farm,  and  was  worth  money  enough  to  pay 
for  twenty  such  yokes  of  cattle,  was  held 
sufficient  as  a  false  pretense  within  the  stat- 
ute, although  it  was  not  expressly  charged 
that  credit  was  given  to  the  representation, 
but  only  that  the  oxen  were  thereby  ob- 
tained.    State  V.  Penley,  27  Conn.  587. 

79.  An  indictment  for  fraud,  alleging  that 
the  goods  were  "sold  to  divers  persons," 
was  held  bad  for  uncertainty.  State  v. 
Woodson,  5  Humph.  55. 

80.  By  removing  and  concealing  prop- 
erty. Where  an  indictment  alleged  both 
that  the  defendant  removed  and  concealed, 
and  aided  and  abetted  in  removing  and 
concealing  mortgaged  property,  with  the 
fraudulent  intent  to  place  the  same  beyond 
the  control  of  the  mortgagee,  it  was  held 
that  as  under  the  statute  (Gen.  Stats,  of 
Mass.  ch.  161,  §  61)  the  offense  was  but  a 
misdemeanor,  the  averment  of  aiding  and 
abetting  was  surplusage.  Com.  v.  Wallace, 
108  Mass.  12. 

81.  In  obtaining  signature.  It  is  suffi- 
cient, in  an  indictment  for  obtaining  the 
signature  of  a  person  to  a  written  instru- 
ment by  false  pretenses,  to  show  that  the 
instrument  on  its  face  is  one  calculated  to 
prejudice  the  person  who  has  signed  it, 
though  void,  on  account  of  the  fraud. 
People  V.  Crissie,  4  Denio,  525. 

82.  An  indictment  for  obtaining  by  false 
pretenses,  the  signature  of  a  person  to  a 
deed  of  land,  must  charge  that  the  prosecu- 
tor owned,  or  had  some  interest  in  the  land 
described  in  the  deed,  or  that  the  deed  con- 
tained covenants  making  him  liable  to  an 


action ;  and  the  deed  must  be  set  out.    Dord 
V.  People,  9  Barb.  671.  ; 

83.  An  indictment  for  obtaining  the  sig- 
nature of  a  person  to  a  mortgage  by  false 
pretenses,  must  aver  a  delivery.  Fentou  v. 
People,  4  Hill,  126. 

84.  An  indictment  for  obtaining  a  signa- 
ture to  a  note  by  false  pretenses,  charged 
that  the  pretenses  were  made  .to  induce  K. 
to  become  the  security  of  L.  on  a  six  hun- 
dred dollar  note,  but  that  instead  of  going 
security  he  became  a  principal,  and  made  a 
note  for  six  hundred  dollars  payable  to  L. 
Held.,  that  the  indictment  was  bad  for  am- 
biguity and  uncertainty.  State  v.  Locke, 
35  Ind.  419. 

85.  Charging  bankrupt.  It  is  not  suffi- 
cient in  an  indictment  under  section  44  of 
the  bankrupt  act,  for  fraudulently  obtaining 
goods  on  credit,  to  aver  that  proceedings  in 
bankruptcy  were  duly  commenced.  It  must 
be  pleaded  and  proved  that  a  petition  in 
bankruptcy  was  presented  to  the  court  by  a 
certain  creditor,  naming  him,-  and  the 
amount  of  the  debt  of  such  petitioning 
creditor,  the  alleged  cause  of  bankruptcy, 
and  the  adjudication  of  bankruptcy.  It 
must  appear  affirmatively  that  the  creditor 
had  a  right  under  the  law  to  commence 
and  prosecute  proceedings  in  bankruptcy, 
and  the  amount  of  his  debt  must  appear. 
It  must  appear  that  the  bankrupt  obtained 
goods  within  three  months  of  the  bankrupt- 
cy by  means  of  a  representation  which  he 
knew  to  be  false,  and  that  he  was  carrying 
on  business  and  dealing  in  the  ordinary 
course  of  trade.  A  description  of  the  goods 
obtained  of  the  defendant  as  "  a  large  quan- 
tity of  boots  and  shoes,"  is  bad  for  uncer- 
tainty.    U.  S.  V.  Prescott,  2  Bis.  325. 

86.  Must  set  out  the  pretenses.  The 
indictment  must  state  what  the  false  pre- 
tenses were;  and.  they  must  be  proved  as 
laid.  Glackan  v.  Com.  3  Mete.  Ky.  282  ; 
Cowan  V.  People,  14  111.  348;  Com.  v.  Frey, 
50  Penn.  St.  245.  It  is  not  sufficient  to 
charge  the  false  pretenses  in  general  terms ; 
but  they  must  be  stated  specifically  and  with 
certainty.  Burrows  v.  State,  7  Eng.  65. 
Whore  the  false  pretenses  consist  of  lan- 
guage employed  by  the  defendant,  it  is  suf- 


182 


FALSE   PRETENSES. 


Indictment. 


ficient  to  set  it  out  in  the  indictment  as  it 
was  uttered,  without  undertaking  to  explain 
its  meaning.  State  v.  Call,  48  New  Hamp. 
126. 

87.  An  indictment  is  sufficient  ^Yllich  al- 
leges that  the  defendant  falsely  pretended 
that  a  certain  metallic  medal  was  a  current 
gold  coin  called  an  eagle,  of  the  value  of 
ten  dollars,  and  thereljy  induced  A.  to  re- 
ceive the  same  as  such,  and  to  give  in  ex- 
change therefor  sundry  current  bank  bills 
and  silver  coin,  amounting  together  to  the 
sum  of  nine  dollars  and  seventy  cents. 
Com.  V.  Nason,  9  Gray,  125. 

88.  In  Massachusetts,  an  indictment  under 
the  statute  (R.  S.  ch.  126,  §  32)  was  held 
insufficient,  which  charged  that  the  defend- 
ant, intending  to  cheat  and  defraud  B.  of  his 
money  and  property,  designedly  and  know- 
ingly falsely  pretended  to  him,  that  a 
watch  which  the  defendant  had,  was  a  gold 
watch,  by  means  whereof  the  defendant  did 
designedly  and  knowingly  obtain  from  B. 
$35,  with  intent  to  cheat  and  defraud  him  of 
the  same,  whereas,  in  fact,  the  watch  was 
not  a  gold  watch,  and  the  defendant  knew 
it  was  not.     Com.  v.  Strain,  10  Mete.  521. 

89.  In  Massachusetts,  an  indictment  under 
the  foregoing  statute  was  held  good  which 
charged  that  G.  designedly  and  unlawfully 
pretended  to  N.  that  A.  wanted  to  buy 
cheese  of  N ,  and  had  sent  G.  to  buy  it  for 
him,  and  that  a  certain  paper  described,  pur- 
porting to  be  a  ten  dollar  bill  of  the  Globe 
Bank  in  the  city  of  New  York,  was  a 
genuine  bill  and  of  the  value  of  ten  dollars, 
by  means  of  which  false  pretenses,  said  G. 
illegally  obtained  from  said  N.  forty  pounds 
of  cheese,  of  the  value  of  four  dollars,  and 
bank  bills  and  silver  coins,  of  the  value  of 
six  dollars,  with  intent  to  cheat  and  defraud, 
whereas  tlie  said  A.  did  not  wish  to  pur- 
chase cheese  of  N.,  and  had  not  sent  G.  to 
him  for  that  purpose,  and  the  said  jsaper 
was  not  a  genuine  bill  of  the  Globe  Bank  in 
the  city  of  New  York,  and  was  not  of  the 
value  of  ten  dollars,  but  was  worthless.  Com. 
V.  Hulbert,  13  Mete.  446. 

90.  An  indictment  which  alleges  that  A., 
B.  and  C,  intending  to  cheat  and  defraud, 
conspired  to  get  into  their  possession  certain 


goods  of  a  specified  value,  under  color  and 
pretense  of  a  purchase  of  the  same  upon  the 
credit  of  C.  from  such  parties  as  could  there- 
after be  induced  by  C.  to  part  with  goods, 
under  the  false  and  fraudulent  pretense 
thereafter  to  be  made  to  such  parties  by  C. 
that  C.  intended  to  take  such  goods  to  his 
retail  store  for  the  purpose  of  selling  them 
in  the  usual  and  ordinary  course  of  retail 
trade,  is  sufficient  as  an  indictment  for  a 
conspiracy  to  obtain  goods  by  false  pre- 
tenses within  the  statute  of  Massachusetts 
(Gen,  Stats,  ch.  161,  §  64,  and  Stat,  of  1863, 
ch.  248,  §  2).  Com.  v.  Walker,  108  Mass.  309. 

91.  In  Massachusetts,  an  indictment  for 
obtaining  money  by  false  pretenses,  which 
charged  that  the  false  pretenses  were  prac- 
ticed upon  one,  and  his  money  obtained 
with  intent  to  defraud  another,  was  held  to 
be  good.     Com.  v.  Call,  21  Pick.  515. 

92.  An  indictment,  which  alleges  that  the 
defendants  falsely  represented  that  sheep 
which  they  ofiered  to  sell  were  free  from 
disease,  and  that  the  lameness  which  ajGfect- 
ed  some  of  them  was  caused  by  an  accident- 
al injury,  by  means  of  which  the  defendants 
obtained  money  on  the  sale  of  said  sheep, 
and  negativing  the  facts  re^ireseuted,  is 
sufficient,  under  the  statute  of  New  York 
against  cheating  by  false  pretenses.  People 
V.  Crissie,  4  Denio,  525. 

93.  An  indictment  for  obtaining  goods 
under  false  pretenses  set  out  in  substance 
that  the  prisoner,  with  intent  feloniously  to 
cheat  and  defraud  one  Stork,  did  knowingly 
&c.  represent  to  him  that  a  certain  instru- 
ment in  writing  for  the  payment  of  monej'', 
commonly  called  a  bank  check,  which  he 
then  and  there  delivered  to  him,  purporting 
to  have  been  drawn  by  one  Smith  upon  the 
Ocean  Bank  of  the  city  of  New  York,  dated 
&c.,  for  the  sum  of  $140,  was  a  good  and 
genuine  check,  and  that  he,  the  prisoner, 
had  money  on  deposit  in  said  bank,  and  said 
check  would  be  paid  on  presentation.  Ileld 
good.  Smith  v.  People,  47  N.  Y.  303.  What 
an  indictment  for  obtaining  goods  under 
false  pretenses  should  contain.  Lambert  v. 
People,  9  Cow.  578. 

94.  Although  proof  of  a  false  promise  will 
not   sustain    an   indictment    for    obtaining 


FALSE  PRETENSES. 


183 


Indictment. 


property  under  false  pretenses,  yet  if  the 
pretense  and  promise  blend  together  and 
jointly  act  upon  the  defrauded  person, 
whereby  he  is  induced  to  give  faith  to  the 
pretense,  it  is  otherwise.  The  following  in- 
dictment was  held  sufficient:  That  the  de- 
fendant by  false  pretense,  and  with  intent 
to  defraud  H.,  falsely  pretended  to  H.  that 
he  had  come  to  pay  him  $20  due  H.  from 
the  defendant,  and  H.  believing  the  said 
false  pretense,  and  deceived  thereby,  was 
induced  by  reason  thereof  to  sign  a  receijDt 
for  said  $20,  which  said  receipt  the  defend- 
ant took  and  carried  away  without  the  con- 
sent of  H.,  and  did  not  pay  H.  $20  or  any 
other  sum,  and  that  the  defendant  did  not 
come  to  pay  H.  $20  or  any  other  sum.  State  v. 
Dowe,  27  Iowa,  273,  Wright,  J.,  dme7iting. 

95.  An  indictment  for  cheating  by  false 
pretenses,  alleged  that  the  defendant,  to 
induce  R.  to  part  with  a  note  which  R.  held 
against  him,  pawned  a  watch  as  a  pledge 
that  he  would  do  a  certain  thing,  falsely 
representing  the  watch  to  be  worth  a  sum 
exceeding  its  real  value,  and  also  that  it  was 
the  property  of  his  wife ;  but  did  not  allege 
that  he  represented  he  was  authorized  by 
her  to  part  with  it.  Held  bad  on  demurrer. 
State  V.  Estes,  46  Maine,  150. 

96.  In  South  Carolina,  under  the  statute 
of  1791,  an  indictment  was  held  insufficient, 
which  merely  alleged  that  the  defendant, 
falsely  and  fraudulently  pretending  tliat  a 
certain  mulatto  was  a  slave,  did  falsely  cheat 
and  defraud  one  A.,  by  selling  said  mulatto 
to  him  for  a  slave,  when  said  mulatto  was 
free.     State  v.  Wilson,  3  Const.  R.  135. 

97.  An  indictment  charging  that  the  de- 
fendant obtained  the  property  of  A.  by 
falsely  pretending  to  him  that  his  goods  and 
chattels  were  about  to  be  attached,  is  bad 
for  the  reason  that  it  relates  to  a  future 
transaction.     McKenzie  v.  State,  6  Eng.  594. 

98.  Averment  of  intent.  Although  an 
indictment  for  obtaining  money  by  false 
tokens,  must  describe  the  offense  as  to  time 
and  place,  and  allege  every  material  fact,  yet 
the  intent  need  not  be  averred.  State  v. 
Bacon,  7  Vt.  223. 

99.  In  an  indictment  for  obtaining  a  sig- 
nature to  a  written  instrument  by  a  false 


pretense  with  intent  to  defraud,  the  fraud- 
ulent intent  is  an  essential  element  of  the 
offense,  and  must  be  distinctly  charged  by 
an  affirmative  allegation,  and  not  by  way  of 
inference  or  argument  merely.  Com.  v. 
Dean,  110  Mass.  64. 

100.  Where  the  case  made  by  the  indict- 
ment was,  that  the  prosecutor  having  taken 
a  promissory  note  payable  to  his  own  order, 
for  a  debt  due  to  himself  from  the  defendant, 
was  induced  to  indorse  and  deliver  it  back 
to  the  defendant,  and  there  was  no  aver- 
ment that  the  defendant  obtained  the  in- 
dorsement of  the  prosecutor  with  intent 
afterward  to  negotiate  it  on  his  own  ac- 
count, it  was  held  that  a  conviction  could 
not  be  sustained.  People  v.  Chapman,  4 
Parker,  56. 

101.  In  New  York,  an  indictment  for  re- 
ceiving and  storing  for  hire  by  false  weights 
and  measures,  must  charge  the  acts  and  in- 
tents of  the  prisoner  to  have  been  felonious ; 
and  it  must  name  the  person  defrauded,  or 
aver  that  he  was  to  the  jurors  unknown. 
People  V.  Fish,  4  Parker,  206. 

102.  Description  of  property.  The  in- 
dictment need  not  mention  all  the  property 
which  the  defendant  obtained  by  the  false 
pretenses.     People  v.  Parish,  4  Denio,  153. 

103.  A  description  of  property  obtained 
by  false  pretenses,  as  "  a  check  and  order 
for  the  payment  of  money "  is  sufficient, 
without  setting  out  the  check.  Com.  v. 
Coe,  115  Mass.  481. 

104.  An  indictment  for  obtaining  money 
by  false  pretenses  which  avers  that  S.  deliv- 
ered, and  the  defendant  received,  forty-six 
dollars  of  the  money  and  property  of  the 
said  S.,  is  sufficient  without  describing  the 
money.     Com.  v.  Lincoln,  11  Allen,  3.)3. 

105.  Where  a  statute  made  the  offense 
consist  in  the  fraudulent  obtaining  of  money, 
goods  or  chattels,  an  indictment  was  held 
insufficient,  which  charged  the  obtaining  by 
means  of  a  counterfeit  letter,  one  hundred 
dollars  in  a  note  of  the  Bank  of  Virginia, 
on  the  ground  that  a  bank  note  was  not 
money  within  the  meaning  of  the  statute. 
But  an  indictment  was  held  good  which  al- 
leged the  obtaining  from  the  Bank  of  Vir- 
ginia, by  similar  means,  of  fifty  dollars  in 


184 


FALSE  PKETENSES. 


Indictment. 


money  current  in  Virginia.     Com.  v.  Swin- 
uey,  1  Va.  Cas.  14G,  150,  Ul,7wte. 

106.  An  indictment  for  tlie  fraudulent  re- 
moval and  concealment  by  the  defendant 
of  his  own  personal  property,  with  intent  to 
2)lace  it  beyond  the  control  of  the  mort- 
gagee, described  the  property  as  "  a  large 
quantity  of  ready  made  clothing,  the  whole 
of  the  value  of  iive  hundred  dollars,  a  large 
quantity  of  dry  goods,  the  whole  of  the  value 
of  tive  hundred  dollars,  a  large  quantity  of 
boots  and  shoes,  the  whole  of  the  value  of  five 
hundred  dollars,  and  a  large  quantity  of  hats 
and  caps,  the  whole  of  the  value  of  five  hun- 
dred dollars,  which  said  personal  property 
the  jurors  cannot  more  particularly  describe." 
Held  sufiicient.  Com.  v.  Stangford,  112  Mass. 
289. 

107.  As  promissory  notes  are  not  public 
tokens,  an  indictment  for  a  cheat  at  common 
law,  by  passing  certain  "  promissory  notes" 
as  and  for  bank  notes,  without  charging 
that  they  resembled  bank  notes,  is  insufii- 
cient.  State  v.  Patillo,  4  Hawks,  348.  An 
indictment  which  alleges  in  one  count  the 
possession,  and  in  another  the  uttering,  of  a 
forged  bank  bill,  with  an  intent  to  defraud, 
does  not  charge  a  common-law  cheat.  State 
V.  Brown,  4  R.  I.  528. 

108.  An  indictment  for  cheating  by  false 
tokens,  in  obtaming  property  by  means  of  a 
counterfeit  coin,  need  not  aver  to  what  cur- 
rency the  coin  counterfeited  belonged ;  nor 
that  the  spurious  coin  was  made  like  the 
one  imitated,  the  word  "  counterfeit  "  being 
sufficient;  nor  that  the  property  was  ob- 
tained by  means  of  passing  the  false  coin ; 
nor  the  value  of  the  thing  obtained,  or  that 
it  was  of  any  value ;  nor  that  it  was  the 
property  of  the  iDcrson  from  whom  it  was 
alleged  to  have  been  obtained.  State  v. 
Boon,  4  Jones,  463. 

109.  Where  an  indictment  charges  that 
the  defendant  intended  to  cheat  the  prose- 
cutor out  of  twenty  acres  of  land,  the  excess 
in  quantity  over  thirty-five  acres,  there 
should  be  an  averment  that  there  was  in 
fact  such  an  excess  of  twenty  acres.  State 
V.  Burrows,  11  Ired.  477. 

110.  An  indictment  for  the  fraudulent 
conveyance   of   real   estate  without   eriviue: 


notice  of  an  encumbrance  thereon,  which 
alleges  that  the  defendant  conveyed  a  cer- 
tain parcel  of  land  in  the  city  of  Salem, 
county  of  Essex,  without  any  other  terms  of 
description,  is  bad  for  uncertainty.  Com.  v. 
Brown,  15  Gray,  189. 

111.  Averment  of  ownership.  An  in- 
dictment for  obtaining  goods  by  false  pre- 
tenses, must  contain  an  averment  of  owner- 
ship, or  give  a  reason  for  not  making  the 
averment.  State  v.  Lathrop,  15  Vt.  279 ;  State 
V.  Smith,  8  Blackf.  489 ;  Leobold  v.  State,  33 
Ind.  484;  Thomson  v.  People,  34  111.  60; 
Washington  v.  State,  41  Texas,  583,  and  al- 
lege that  they  were  obtahied  by  means  of  the 
false  representations.  Epperson  v.  State,  42 
Texas,  79 ;  State  v.  Green,  7  Wis.  676. 

112.  An  indictment  for  obtaining  money 
by  false  pretenses,  averred  that  K.  presented 
a  forged  writing  as  true,  to  S.  W.,  Jr.,  rep- 
resenting that  his  mother  had  signed  it,  and 
wished  him  "  to  obtain  seven  dollars  from 
his  employers,"  and  give  it  to  K.,  and  that 
the  son  believing  the  representations,  pro- 
cured from  his  employers  the  said  sum  of 
seven  dollars  of  the  proper  moneys  of  S.  W., 
Sr.  But  the  indictment  did  not  show  how 
the  moneys  so  obtained  were  the  property 
of  S.  W.,  the  elder.  Held  that  the  indict- 
ment was  bad  and  the  prisoner  entitled  to 
judgment.  People  v.  Krummer,  4  Parker,217. 

113.  An  indictment  for  selling  property 
conditionally  mortgaged,  with  intent  to  de- 
fraud, must  allege  that  previous  to  the  sale, 
the  mortgage  had  become  absolute  by  the 
happening  of  the  condition.  State  v.  Dev- 
ereux,  41  Texas,  383. 

114.  Allegation  of  value.  The  indict- 
ment need  not  charge  that  the  property  was 
of  a  particular  value.  People  v.  Stetson,  4 
Barb.  151.  An  indictment  against  A.,  for 
obtaining  the  horse  of  B.  by  the  false  pre- 
tense that  the  mare  which  he  exchanged 
therefor  was  his  own  and  was  unencum- 
bered, did  not  charge  that  the  mare  was  of 
any  value.  Held  not  good  ground  for  arrest 
of  judgment.     State  v.  Dorr,  33  Maine,  498. 

115.  In  New  Hampshire,  an  indictment 
for  the  unlawful  and  fraudulent  sale  of 
mortgaged  property  contrary  to  the  statute, 
must  allege  the  value  of  the  property  at  the 


FALSE   PRETENSES. 


185 


Indictment. 


Evidence. 


time  of  the  sale.     State  v.  Ladd,  33  New 
Hamp.  110. 

116.  An  indictment  which  charges  that 
by  means  of  false  pretenses,  the  defendant 
obtained  "sixty-five  dollars  in  money,"  is 
sufficiently  definite  and  certain  without  an 
additional  averment  of  the  value  of  the 
money.     Oliver  v.  State,  37  Ala.  134. 

117.  Ch.arging  several.  Where  the  first 
and  third  counts  of  an  indictment  charged 
false  pretenses  against  A.  and  B.,  while  the 
second  and  fourth  counts  included  also  C, 
the  same  felony  being  charged  in  all  of  the 
courts,  it  was  held  that  the  indictment  was 
good,     easily  v.  State,  33  Ind.  63. 

118.  Must  negative  truth  of  pretenses. 
The  indictment  must  negative  the  truth  of 
the  pretenses.  Tyler  v.  State,  3  Humph.  37. 
But  all  of  the  pretenses  charged  need  not 
be  negatived.  It  is  sufficient  to  negative 
such  as  are  relied  on  by  the  prosecution. 
People  V.  Strong,  9  Wend.  183;  People  v. 
Gates,  13  lb.  311;  Com.  v.  Merrill,  8  Cush. 
571. 

119.  Where  an  indictment  alleged  that 
the  defendant  falsely  pretended  to  A.,  that 
B.,  C.  and  D.  were  indebted  to  the  defend- 
ant in  a  certain  amount,  and  that  they 
were  bound  to  pay  a  certain  bill  of  ex- 
change, then  in  the  defendant's  possession 
and  overdue,  drawn  by  the  defendant  on 
said  B.,  C.  and  D.,  payable  to  their  order 
ninety  days  after  date,  and  accepted  by  them, 
and  which  they  indorsed  to  the  defendant, 
and  obtained  from  said  A.  certain  goods, 
with  intent  to  cheat,  &c. ;  whereas,  in  fact, 
the  said  B.  and  C.  were  not  then  indebted 
to  the  defendant,  nor  were  said  B.,  C.  and 
D.  bound  to  pay  said  bill,  it  was  held  that 
the  first  pretense  was  not  well  negatived, 
and  as  to  the  second,  that  there  ought  to 
have  been  an  allegation  that  the  defendant 
knew  that  B.,  C.  and  D.  were  not  bound  to 
pay  the  bill.     State  v.  Smith,  8  Blackf.  489. 

120.  Where  an  indictment  alleges  that 
the  prisoner  obtained  the  property  upon 
giving  his  note,  which  he  falsely  and  fraud- 
ulently represented  that  he  was  able  to  pay, 
it  need  not  aver  that  he  did  not  pay  the 
note.     Clark  v.  People,  3  Lans.  339. 

121.  Sufficiency  of  indictment  question 


of  law.  It  is  not  error  on  a  trial  for  obtain- 
ing goods  under  false  pretenses  for  the  judge 
to  refuse  to  charge  that  the  pretense  must  ap- 
pear upon  the  indictment  to  be  such  as  could 
not  be  guarded  against  by  an  exercise  of 
common  sagacity  and  prudence ;  the  suffi- 
ciency of  the  indictment  being  a  question 
of  law.     Smith  v.  People,  47  N.  Y.  303. 

122.  Place  of  trial.  A.  was  indicted  in 
New  York  for  obtaining  money  from  com- 
mission merchants  in  that  city,  by  showing 
them  a  fictitious  receipt,  signed  by  a  for- 
warder in  Ohio,  falsely  acknowledging  the 
delivery  to  him  of  a  quantity  of  produce  for 
the  use  of  and  subject  to  the  order  of  the 
firm.  The  defendant  set  up  in  defense,  that 
he  was  a  citizen  of  Ohio,  had  always  lived 
there,  and  had  never  been  in  the  State  of 
New  York ;  that  the  receipt  was  drawn  and 
signed  in  Ohio,  and  the  ofi'ense  was  com- 
mitted by  the  receipt  being  presented  to  the 
firm  in  New  York  by  an  innocent  agent  of 
the  defendant.  Held,  that  the  defendant 
was  properly  indicted  in  New  York.  Adams 
V.  People,  1  Comst.  173.  . 

K 

4.  Evidence.    ^ 

123.  Burden  of  proof  On  the  trial  of  an 
indictment  for  obtaining  money  under  false 
pretenses,  the  burden  of  proof  is  on  the 
prosecution  to  show  that  the  pretenses  were 
false,  unless  the  fact  lies  peculiarly  in  the 
knowledge  of  the  accused ;  and  it  must  be 
proved  not  only  that  false  pretenses  were 
made  with  the  design  of  obtaining  the 
money,  but  that  the  money  was  paid  in  con- 
sequence of  the  false  pretenses.  Bowler  v. 
State,  41  Miss.  570. 

124.  Best  evidence  must  be  produced. 
On  the  trial  of  an  indictment  for  obtain- 
ing a  bank  check  in  exchange  for  a  note,  by 
falsely  pretending  that  the  note  was  genuine, 
the  testimony  of  a  witness  that  he  heard  the 
maker  of  the  note  say  that  the  defendant 
had  authority  to  use  his  name  upon  the  note, 
and  that  it  was  signed  by  his  authority,  is 
mere  hearsay  and  inadmissible.  Cora.  v. 
Goddard,  3  Allen,  148;  s.  c.  4  lb.  313;  14 
Gray,  403. 

125.  On  the  trial  of  an  indictment  for  ob- 
taining money  by  false  pretenses,  by  repre- 


186 


FALSE   PRETENSES. 


Evidence. 


seuting  that  the  defendant  had  money  in  a 
bank  in  another  State,  the  certificate  of  pro- 
test of  the  notary  public  who  protested  the 
drafts  drawn  on  the  bank  is  not  competent 
evidence  to  show  that  the  defendant  had  no 
money  in  the  bank.  State  v.  Reidel,  26 
Iowa,  430. 

126.  Where  the  question  is,  whether  a 
check  was  drawn  on  a  bank  by  a  person  who 
had  no  funds  therein,  and  the  accused  waives 
the  production  of  the  books  of  the  bank, 
the  book-keeper  of  the  bank  is  a  competent 
witness  to  show  that  at  the  date  of  the 
transaction  there  were  no  funds  in  the  bank 
for  the  payment  of  the  check.  Smith  v. 
People,  47  N.  Y.  303. 

127.  In  New  Jersey,  an  indictment  under 
the  statute  (Nix.  Dig.  170,  §  53)  for  obtain- 
ing proi^erty  by  false  pretenses  is  sustained 
by  proof  of  a  verbal  pretense  made  with  in- 
tent to  cheat  and  defraud,  and  which  in- 
duced a  person  to  part  with  his  property  or 
give  credit.  State  v.  Duckworth,  3  Dutch. 
328. 

128.  On  the  trial  of  an  indictment  for  ob- 
taining money  under  false  pretenses,  it  is 
competent  for  the  complainant  to  testify 
that  he  relied  on  the  representations  of  the 
prisoner.     People  v.  Sully,  5  Parker,  142. 

129.  Under  an  indictment  for  swindling 
in  selling  a  tract  of  land  a  second  time,  it  is 
not  necessary  to  prove  that  the  second  pur- 
chaser has  tested  his  title  by  action.  State 
V.  Dozier,  Dudley,  Ga.  loo. 

130.  All  of  the  pretenses  charged  need 
not  be  proved.  Although  when  all  of  the 
jiretenses  charged  are  a  substantive  pax't  of 
the  offense,  all  must  be  proved  to  be  false; 
yet  it  is  otherwise  where  one  or  more  of  the 
pretenses  are  sufficient  jier  se  to  constitute 
the  offense.  People  v.  Haynes,ll  Wend. 557; 
14  lb.  546;  Britt  v.  State,  9  New  Hamp. 
81 ;  Thomas  v.  People,  34  N.  Y.  351. 

131.  If  the  jury  are  satisfied  of  the  ex- 
istence of  a  conspiracy,  and  that  a  material 
portion  of  the  representations  made  in  carry- 
ing it  into  effect  are  false,  they  may  find  in 
the  absence  of  explanation,  that  the  other 
statements  were  made  for  the  same  purpose, 
and  were  also  untrue.  The  conduct  and  dec- 
larations   of  the   several    parties,  together 


with  proof  that  one  of  them,  with  the 
prisoner,  went  through  the  same  perform- 
ance two  days  before,  for  the  purpose  of 
getting  money  from  another  person,  are  ad- 
missible to  show  the  quo  animo  of  the  accused 
in  the  offense  charged.  Bielschofsky  v.  Peo- 
ple, 5  N.  Y.  Supm.  N.  S.  277. 

132.  Variance  as  to  name.  An  indict- 
ment charged  that  by  means  of  certain  false 
and  fraudulent  representations  made  to  B.,  a 
member  of  the  firm  of  B.,  K.  &  Co.,  the  de- 
fendant procured  certain  goods.  The  evi- 
dence showed  that  the  style  of  the  firm  was 
B.  &  K.  Held  that  the  variance  was  fatal. 
Mathews  v.  State,  33  Texas,  102. 

133.  An  indictment  charged  the  defendant 
witli  branding  a  steer,  the  property  of  Joseph 
F.  Rowley.  The  evidence  showed  that  the 
steer  belonged  to  Napoleon  B.  Rowley.  Held 
that  the  variance  was  fatal.  Mayes  v.  State, 
33  Texas,  340.  An  indictment  for  obtaining 
goods  by  false  pretenses  charged  that  the 
defendant  falsely  pretended  that  he  had  an 
order  from  a  person  in  New  York,  whose 
name  he  did  not  mention.  The  proof  was 
that  the  defendant  stated  he  had  an  order 
from  "  another  party,"  but  that  he  did  not 
say  who  the  party  was,  or  in  what  place  he 
resided.  Held  that  the  variance  was  fatal. 
Com.  V.  JeflFries,  7  Allen,  548. 

134.  Amount  represented.  Although 
sums  of  money,  dates,  «fcc.,  need  not  usually 
be  averred  with  accuracy,  yet  when  they 
constitute  a  part  of  the  description  of  the 
offense,  they  must  be  proved  as  laid.  Where 
therefore  an  indictment  for  obtaining  money 
and  a  signatm-e  by  false  pretenses  alleged 
that  the  defendant  represented  that  his  house 
and  lot  were  worth  $3,600,  and  it  was  proved 
that  he  stated  that  they  were  worth  $2,200 
or  $2,300,  it  was  held  that  the  variance  was 
fatal.     Todd  v.  State,  31  Ind.  514. 

135.  An  allegation  in  an  indictment  that 
the  prisoner  pretended  "  that  he  bad  in 
Macon  seven  thousand  dollars,"  is  materially 
variant  from  a  pretense  "that  he  had  seven 
dollars  less  than  seven  thousand  in  a  bank 
in  Macon."     O'Connor  v.  State,  30  Ala.  9. 

136.  Where  the  indictment  charged  that 
the  defendant  represented  that  a  firm,  of 
which  he  was  a  member,  was  then  in  debt 


FALSE  PRETEI^SES. 


187 


Evidence. 


to  the  amount  of  not  more  than  three  hun- 
dred doUars,  and  the  representation  proved 
was  that  the  firm  did  not  then  owe  more 
than  four  hnudred  dollars,  it  was  held  that 
the  variance  was  fatal.  Com.  v.  Davidson, 
1  Cush.  33. 

137.  But  where  the  indictment  charged 
the  obtaining  by  false  pretenses  the  signa- 
ture of  a  party  to  a  promissory  note,  by 
pretending  that  the  defendant  had  money 
in  the  hands  of  a  third  person,  who  was 
absent,  it  was  held  that  it  was  not  necessary 
to  prove  the  amount  represented  to  be  the 
identical  sum  stated  in  the  indictment,  pro- 
vided it  was  sufficient  to  meet  the  payment 
of  the  note  which  the  party  was  induced  to 
sign.     People  v.  Herrick,  13  Wend.  87. 

138.  Property  represented.  Where  un- 
der an  indictment  for  obtaining  goods  by 
false  pretenses,  which  described  the  prop- 
erty as  "  a  package  of  money  containing  the 
sum  of  sixty  dollars  in  bank  bills,"  and  the 
court  charged  the  jury  that,  "  if  the  package 
contained  anything  that  passed  current  at 
par  as  money,  the  offense  charged  would  be 
sustained,"  it  was  held  error.  State  v.  Kube, 
20  Wis.  217. 

139.  An  indictment  alleged  that  the  de- 
fendant falsely  and  knowingly  presented 
and  pretended  to  A.  that  a  certain  writing, 
in  the  form  of  a  bank  bill,  was  a  good  Ijank 
bill  for  the  payment  of  five  dollars;  that  A., 
believing  the  representation,  was  thereby 
induced  to  deliver  to  the  defendant  certain 
goods,  and  certain  genuine  bank  bills  and 
coins,  in  exchange  for  said  writing,  and 
that  the  defendant  thereupon  delivered 
said  writing  to  A.  for  five  dollars,  whereas 
said  writing  was  not  a  good  bank  bill  for 
five  dollars,  as  the  defendant  then  well 
knew.  Held  that  the  indictment  was  not 
proved  by  evidence  that  the  writing  was  a 
bill  of  a  bank  that  had  failed.  Com.  v. 
Stone,  4  Mete.  43. 

140.  Where  an  indictment  fur  the  fraud- 
ulent conveyance  of  real  estate  alleged  that 
the  defendant,  "  by  a  certain  deed  of  war- 
ranty, did  make  a  conveyance  of  a  certain 
parcel  of  real  estate,"  and  the  deed  offered 
in  evidence  was  a  conveyance  of  "  the  right, 
title,  and  interest "  of  the  grantor,  subject 


to  a  mortgage  which  was  set  out,  and  ex- 
cepted from  two  covenants,  it  was  held  that 
the  variance  was  fatal.  Com.  v.  Brown,  15 
Gray,  189. 

141.  An  indictment  for  cheating  by  false 
pretenses  alleged  that  a  certificate  of  stock 
was  not  a  good,  valid,  and  genuine  writing 
and  certificate,  but  was  false,  forged,  and 
counterfeit,  and  of  no  value.  The  certificate 
proved  was  in  fact  a  certificate  issued  for 
one  share  and  afterward  altered  to  one  hun- 
dred shares.  Htld  no  variance.  Com.  v. 
Coe,  115  Mass.  487. 

142.  An  indictment  for  the  fraudulent 
breach  of  a  trust  alleged  that  the  trust  con- 
sisted in  safely  keeping  lumber  for  A.  The 
evidence  w^as  that  the  trust  consisted  in 
sawing  lumber  in  a  mill  on  A.'s  premises, 
and  shipping  it  to  market.  Held  that  the 
variance  was  fatal.  State  v.  Green,  5  Rich. 
K  S.  65. 

143.  Representation  as  to  indebtedness. 
Where  an  indictment  charged  that  the  de- 
fendant represented  that  he  was  a  partner 
with  another  person,  who  had  put  into  the 
partnership  a  capital  of  a  thousand  dollars, 
which  they  then  had  invested  and  employed 
in  their  partnership  business,  and  that  the 
copartners  were  worth  property  to  the 
amount  of  fifteen  hundred  dollars,  and  did 
not  owe  more  than  three  hundred  dollars, 
it  was  held  that  evidence  of  the  individual 
indebtedness  of  the  defendant  and  his  part- 
ner was  not  admissible.  Com.  v.  Davidson, 
1  Cush.  33. 

144.  Where  goods  are  obtained  from 
agent.  An  indictment  alleging  that  the 
defendant  obtained  goods  of  partners  in 
trade  by  false  pretenses  made  to  them,  is 
sustained  by  evidence  that  the  defendant 
made  the  false  pretenses  to  their  clerk  and 
salesman,  who  communicated  them  to  one 
of  the  partners,  and  that  the  goods  were  de- 
livered to  the  defendant  by  reason  of  the 
false  pretenses.  Com. v.  Ilarley,  7  Mete.  4G2. 
And  see  Com.  v.  Mooar,  Thach.  Crim.  Cas. 
410. 

145.  Proof  of  credit.  On  the  trial  of  an 
indictment  for  obtaining  goods  by  false  pre- 
tenses, the  testimony  of  the  vendor  is  ad- 
missible to  show  to  whom  he  gave  credit; 


188 


FALSE   PRETENSES. 


Evidence. 


and  it  may  be  left  to  the  jury  to  determine 
on  tlie  whole  evidence,  including  the  entries 
on  the  books,  wliether  the  sale  was  on  the 
credit  of  the  defendant  or  that  of  the  un- 
disclosed principal.  Com.  v.  Jeffries,  7  Al- 
len, 548. 

146.  On  the  trial  of  an  indictment  for 
cheating  by  false  pretenses  in  obtaining  a 
loan  from  F.,  by  means  of  a  forged  certifi- 
cate of  stock,  the  fact  that  the  certificate 
was  offered  and  received  as  security  for  the 
loan,  is  evidence  from  which  the  jury  may 
find  that  F.  was  thereby  induced  to  part 
with  his  money,  notwithstanding  the  testi- 
mony of  F.  that  he  "  had  every  confidence 
in  "  the  defendant,  in  reply  to  the  question 
if  he  did  not  rather  trust  him  than  any  se- 
curity.    Com.  V.  Coe,  115  Mass.  481. 

147.  Where  two  are  jointly  indicted,  and 
there  is  evidence  that  one  of  them,  with  the 
knowledge  and  by  the  dir-ection  of  the  other, 
made  the  false  pretenses  charged,  both  may 
be  found  guilty  without  proving  that  they 
obtained  the  goods  on  their  own  account, 
or  derived,  or  expected  to  derive,  any  pecu- 
niary benefit  therefrom.  Com.  v.  Hurley,  7 
Mete.  462. 

143.  Guilty  knowledge.  On  a  trial  for 
cheating  by  false  pretenses,  in  representing 
that  a  forged  certificate  of  stock  was  gen- 
uine, evidence  of  the  possession  and  use  by 
the  defendant  of  other  altered  and  false  cer- 
tificates about  the  same  time,  before  or  after- 
ward, is  comj^etent  to  show  that  his  jDOsses- 
sion  of  those  for  the  use  of  which  he  was 
indicted,  was  not  accidental.  Com.  v.  Coe, 
115  Mass.  481 ;  s.c.  2  Green's  Crim.  Reps.  5G2. 

149.  On  the  trial  of  an  indictment  for 
cheating  by  falsely  pretending  that  a  bill  of 
an  insolvent  bank  was  good,  evidence  of  the 
depreciatetl  value  of  the  bills  of  the  bank, 
with  proof  that  the  bank  has  refused  to  pay 
its  bills,  and  that  they  are  not  current,  is 
competent,  and  it  may  be  shown  that  the 
prisoner  had  in  his  possession  and  passed 
other  similar  bills.  Com.  v.  Stone,  4  Mete. 
43. 

150.  On  the  trial  of  an  indictment  for 
concealing  the  goods  of  a  debtor  to  prevent 
their  being  taken  for  his  debts,  for  the  pur- 
pose of  showing  that  the  goods  concealed 


were  the  property  of  the  debtor,  it  may  be 
proved  that  a  mortgage  of  the  same  goods 
by  the  debtor  to  the  defendant,  previously 
executed,  was  fraudulent,  although  the  de- 
fendant, in  taking  such  mortgage,  commit- 
ted a  distinct  offense.  State  v.  Johnson,  33 
New  Hamp.  441. 

151.  To  authorize  a  conviction  under  an 
indictment  for  fraudulently  packing  cotton, 
the  guilty  knowledge  of  the  defendant  must 
be  shown  in  addition  to  the  proof  that  it 
was  fraudulently  packed  at  the  defendant's 
gin  by  his  employees.  State  v.  Pitts,  13 
Rich.  27. 

152.  Guilty  intent.  On  the  trial  of  an 
indictment  for  obtaining  goods  by  false 
pretenses,  evidence  that  at  the  time  of  mak- 
ing the  alleged  false  representations,  the  de- 
fendant was  insolvent,  is  admissible  to  show 
fraudulent  intent.  Com.  v.  Jeffries,  7  Allen, 
548.  And  a  conversation  by  him  prior  to 
the  making  of  the  false  pretenses  charged 
relative  to  the  subject-matter  of  them,  is 
admissible  for  the  same  purpose.  Com.  v. 
Castles,  9  Gray,  121. 

153.  On  the  trial  of  an  indictment  for  ob- 
taining property  by  false  pretenses,  through 
representations  made  by  the  prisoner  to  C, 
that  there  was  no  encumbrance  on  the  land, 
except  the  mortgage  then  sold  by  the  pris- 
oner to  C,  there  being  in  fact  a  jDrior  mort- 
gage upon  it,  executed  shortly  previous,  by 
M.  to  L.,  it  was  held  competent  to  prove 
that  M.  told  L.  when  he  executed  the  mort- 
gage to  him,  in  presence  of  the  prisoner, 
that  he  need  not  be  in  a  hurry  to  get  his 
mortgage  recorded ;  such  evidence,  in  con- 
nection with  the  conduct  and  acts  of  the 
prisoner,  being  material  ujDon  the  question 
of  intent.     People  v.  Sully,  5  Parker,  142. 

154.  Where  the  false  representations  were 
that  the  defendant  owed  but  little,  that  he 
was  owing  C.  for  a  pair  of  oxen,  and  was 
not  owing  any  other  large  debt,  that  the 
sale  of  his  wood  and  bark  he  then  owned, 
would  more  than  pay  all  he  owed,  and  that 
his  note  for  $250  was  good,  it  was  held  that 
the  fact  that  the  defendant,  three  days  after- 
ward, mortgaged  the  greater  part  of  his  per- 
sonal property,  was  admissible  in  evidence 
as  bearing  on  the  question  of  the  defendant's 


FALSE  TRETENSES.— FELONY. 


189 


Evidence. 


What  is. 


intent  in  making  the  representations.     State 
V.  Call,  48  New  Hamp.  126. 

155.  Where  it  was  shown  that  the  com- 
plainant's money  was  borrowed  by  a  confeder- 
ate of  the  prisoner,  to  stake  on  a  pretended 
bet  with  him  ;  that  the  prisoner,  claiming  to 
have  won  the  bet,  seized  the  money  and 
went  away  with  it,  and  that  his  confederate 
then  gave  the  prosecutor  a  worthless  bank 
check  for  a  large  amount,  which  was  refused 
payment  on  presentation,  it  was  held  that 
the  evidence  in  relation  to  the  check  was 
admissible,  on  the  question  of  fraudulent  in- 
tent.    Johnson  v.  State,  29  Ala.  62. 

156.  If  a  particular  result  is  designed  to 
be  fraudulently  accomplished  by  making  the 
false  pretense,  which  fails,  and  another 
thing  of  value  is  obtained  and  accepted 
with  like  intent  to  defraud,  the  law  will  im- 
pute to  the  defendant  a  design,  from  the  be- 
ginning, to  consummate  the  latter.  Todd 
v.  State,  31  Ind.  514. 

157.  In  Alabama,  on  the  tiial  of  an  in- 
dictment for  obtaining  goods  by  false  j^re- 
tenses  under  the  statute  (Code,  §  3142),  the 
fraudulent  intent  at  the  time  of  taking  the 
property  must  be  proved.  O'Connor  v. 
State,  30  Ala.  9. 

158.  It  is  not  a  defense  under  the  statute 
of  New  Hampshire  for  concealing  the  goods 
of  a  debtor  to  prevent  their  being  taken  for 
his  debts,  that  the  defendant,  prior  to  the 
commission  of  the  offense,  was  summoned 
as  trustee  of  the  debtor  in  a  process  of 
foreign  attachment  which  was  pending  at 
the  time  of  the  concealment.  State  v.  John- 
son, 33  New  Hamp.  441. 

159.  Testimony  for  the  defense.  On  the 
trial  of  an  indictment  for  obtaining  by  false 
2)retenses  a  signature  to  a  written  instrument, 
proof  by  the  defendant  to  show  his  ability 
to  pay  must  be  confined  to  the  time  when 
the  signature  was  obtained.  People  v. 
Herrick,  13  Wend.  87. 

160.  An  indictment  for  obtaining  goods 
by  false  pretenses,  cliarged  that  the  defend- 
ant had  obtained  the  goods  under  pretense 
of  sending  them  to  Charleston,  8.  C.  Held., 
that  the  testimony  of  the  j^erson  usually 
employed  to  cart  goods  for  the  defendant, 
that  no  goods  had  been  carried  by  him  for 


the  defendant  to  any  ship  bound  for  that 
port  was  admissible.  Com.  v.  Hershell, 
Thach.  Crim.  Cas.  70. 

161.  On  the  trial  of  an  information  for 
obtaining  a  yoke  of  cattle  under  the  false 
pretense  that  the  defendant  owned  a  farm, 
it  was  held  that  evidence  that  at  the  time 
of  the  transaction  he  was  in  good  pecuniary 
credit  and  standing  was  not  admissible. 
State  V.  Penley,  27  Conn.  587. 

162.  To  impeach  witness.  On  the  trial 
of  an  indictment  for  obtaining  a  bank  check 
in  exchange  for  a  note,  by  falsely  pretend- 
ing that  the  note  was  genuine,  the  defend- 
ant relied  upon  the  fact  that  the  date  of  the 
check  was  earlier  than  the  date  of  the  note, 
and  that  for  this  reason  the  former  could  not 
have  been  obtained  by  means  of  the  latter ; 
and  a  witness  had  testified  on  her  cross- 
examination  by  the  district  attorney  that 
the  first  time  she  knew  of  the  discrepancy 
between  the  dates  was  at  the  hearing  before 
the  police  court.  It  was  held  competent  for 
the  purpose  of  discrediting  her  testimony 
to  prove  that  she  had  knowledge  of  the 
discrepancy  at  a  much  earlier  period,  and 
bad  participated  with  the  defendant  in 
causing  it.  Com.  v.  Goddard,  2  Allen,  148; 
4  lb.  312. 

163.  Pretense  question  for  jury.  The 
materiality  and  influence  of  the  pretense  is 
a  question  for  the  jury,  unless  some  induc- 
ing circumstance  on  the  face  of  the  indict- 
ment shows  that  the  pretense  is  immaterial. 
Thomas  v.  People,  34  N.  Y.  351. 

164.  In  determining  the  criminality  of 
the  false  pretense,  the  jury  may  take  into 
consideration  the  ability  or  capacity  to  de- 
tect them  of  the  person  defrauded.  Cowan 
V.  People,  14  111.  348. 


iTcloni). 


"What  is.  In  Indiana,  a  felony  is  an  of- 
fense punishable  by  confinement  in  the  peni- 
tentiary. State  V.  Smith,  8  Blackf.  489.  In 
New  York  and  Missouri,  a  felony  is  an  of- 
fense for  which  the  accused  may  be  im- 
prisoned in  the  State  prison  or  penitentiary, 
and  not  where  he  must  be  so  imprisoned. 


190 


FINE.— FOECIBLE  ENTRY   AND   DETAINER. 


When  it  will  go  to  the  State. 


What  Constitutes. 


People   V.  Van  Steenburgh,  1    Parker,    39; 
Johnson  v.  State,  7  Mo.  183. 

See  the  titles  of  the  several  offenses. 


JTiuc. 


When  it  will  go  to  the  State.  In  New 

Hampshire,  where  one-half  of  a  fine  goes  to 
the  public  prosecutor,  unless  it  appears  of 
record  who  the  complainant  is,  the  whole 
penalty  will  go  to  the  State.  State  v.  Smith, 
49  New  Hamp.  155. 


fixt  ^nns. 


Careless  use  of.  The  statute  of  Michi- 
gan (Comp.  L.  §  7550),  "to  prevent  the 
careless  use  of  fire  arms,"  was  designed  to 
punish  a  class  of  acts  done  carelessly ;  and  to 
constitute  the  ofiense  prohibited  by  the 
statute  there  must  have  been  an  absence  of 
malice.  People  v.  Chappell,  27  Mich.  486 ; 
s.  c.  2  Green's  Crim.  Reps.  569. 

See  Concealed  weapons. 


jri0l)cn). 


1.  Town  no  right  in.  The  inhabitants 
of  a  town  have  no  grant  of  property  or 
right  free  from  legislative  control  and  reg- 
ulation in  the  clam  fishery  within  the  limits 
of  a  town,  and  a  statute  regulating  the  tak- 
ing of  clams  from  their  beds  is  not  uncon- 
stitutional.    Com.  V.  Bailey,  13  Allen,  541. 

2.  Unlawful  taking  of  fish.  Taking  fish 
by  means  of  numerous  single-baited  hooks 
and  lines  set  in  as  many  holes  cut  through 
the  ice  and  tended  by  one  person  is  a  viola- 
tion of  a  statute  whicli  limits  the  mode  of 
taking  fish  to  the  "  ordinary  process  of  an- 
gling with  single  bait,  hook  and  line,  or  arti- 
ficial fly."   State  v.  Skdlfield,  63  Maine,  266. 

3.  Complaint.  In  a  complaint  for  unlaw- 
fully fishing  in  a  pond,  the  lessees  are  prop- 
erly designated  as  the  proprietors,  notwith- 
standing the  fact  that  other  persons  as- 
sociated with  them  for  the  purpose  of 
cultivating  fish,  by  an  independent  arrange- 


ment among  themselves,  have  an  interest  in 
the  enterprise.  Stocking  the  pond  with  a 
new  species  of  fish,  and  closing  the  outlet 
with  a  wire  screen,  are  acts  sufficient  to  show 
an  occupation  for  the  purpose  of  artificially 
cultivating  fishes  therein.  Com.  v.  Weather- 
head,  110  Mass.  175. 


aub 


JTorciblc    ^ntnj 
detainer. 

1.  What  constitutes. 

2.  Proceedings. 

3.  Complaint. 

4.  Indictment. 

5.  Evidence. 

6.  Trial. 

1.  What  constitutes. 

1.  Entry  when  deemed  forcible.     The 

entry  to  be  forcible,  ought  to  be  accomjia- 
nied  with  some  circumstances  of  actual  vio- 
lence or  terror.  These  circumstances  will 
constitute  an  entry  forcible,  though  no  per- 
son be  on  the  premises  at  the  time  the  entry 
is  made.  People  v.  Field,  52  Barb.  198 ;  1 
Lans.  222.  A  mere  naked  trespass  to  lands 
or  outhouses  is  not  sufficient.  People  v. 
Smith,  24  Barb.  16. 

2.  When  a  person  goes  on  to  the  land  of 
another  in  such  a  way  as  to  give  those  who 
are  in  possession  just  cause  to  fear  that  he 
will  do  them  some  bodily  harm  if  they  do 
not  yield  to  him,  his  entry  will  be  deemed 
forcible,  no  matter  what  is  the  character  of 
his  demonstration.  State  v.  Pearson,  2  New 
Hamp.  550. 

3.  In  Massachusetts,  to  constitute  the  of- 
fense, there  must  be  such  a  denjonstration  as 
to  excite  the  fears  of  the  owner  and  prevent 
him  from  claiming  or  maintaining  his  rights. 
Com.  V.  Dudley,  10  Mass.  403.  In  Pennsyl- " 
vania,  the  possession  must  have  been  quiet, 
peaceable,  and  actual,  and  the  entry  attended 
with  force  and  intimidation.  Cora.  v.  Keeper 
of  Prison,  1  Ashm.  140. 

4.  In  North  Carolina,  to  constitute  forci- 
ble entry  and  detainer,  there  must  be  a  show 
of  force,  as  with  weapons,  or  a  multitude  of 


FORCIBLE   ENTRY   AND  DETAINER. 


191 


What  Constitutes. 


Proceedings. 


people,  so  as  to  involve  a  breach  of  the  peace, 
or  directly  tend  to  it,  and  be  calculated  to 
intimidate.     State  v.  Ray,  10  Ired.  39. 

5.  In  South  Carolina,  to  constitute  forci- 
ble entry,  there  must  be  circumstances  of 
terror.  Every  unlawful  entry  upon  the  pos- 
session of  another  is  deemed  a  forcible  entry ; 
but  it  must  be  an  actual  and  not  a  mere  con- 
structive possession.  Two  persons  cannot 
be  in  the  actual  possession  of  the  same  land 
at  the  same  time;  and  whenever  the  unlaw- 
ful entry  of  one  necessarily  dispossesses  the 
other,  an  indictment  for  a  forcible  entry  will 
lie.  Although  the  possession  may  have  been 
obtained  by  fraud ,  yet  if  maintained  by  force, 
the  entry  will  be  deemed  forcible.  State  v. 
Cargill,  3  Brev.  445 ;  Burt  v.  State,  2  Const. 
R.  489;  s.  c.  3  Brev.  413. 

6.  Where  A.,  having  possession  of  a  build- 
ing and  shed  attached,  locked  the  door  of 
the  shed,  in  which  he  had  some  tools,  and 
leaving  a  tenant  in  possession,  went  away, 
intending  to  return,  and  afterward,  the  ten- 
ant put  B.  into  possession  of  the  main  build- 
ing; it  was  held  that  B.  was  not  indictable 
for  a  forcible  entry  in  breaking  into  the  shed, 
and  assuming  possession  of  that.  State  v. 
Bridgen,  8  Ired.  84. 

7.  H.,  being  the  owner  and  in  possession 
of  certain  land,  permitted  F.  to  place  a  build- 
ing thereon,  without  anything  being  said 
about  the  time  it  might  remain,  or  any  agree- 
ment to  pay  rent.  Afterward,  H.  conveyed 
the  premises  to  A.  and  B.,  who  made  an  ex- 
ecutory contract  with  the  defendant  and  one 
C.  for  the  sale  and  conveyance  of  the  same 
to  them;  and  the  latter  took  possession  for 
the  purpose  of  erecting  a  building  upon  the 
premises.  C.  subsequently  released  to  the 
defendant,  who,  desiring  to  erect  stores 
upon  the  lot,  requested  F.  lo  remove  his 
building,  which  he  agreed  to  do,  and  made 
preparations  therefor,  and  the  defendant 
with  his  consent,  excavated  tiie  earth  up  to 
the  building.  After  this  F.  sold  the  build- 
ing to  the  relator  by  a  written  contract  stat- 
ing that  the  building  should  remain  where 
it  was,  F.  to  retain  possession  until  the 
money  was  paid,  when  it  was  to  be  surren- 
dered to  the  relator.  F.  remained  in  posses- 
sion under  the  relator  several  mouths,  when 


he  removed  his  things  and  gave  the  key  tO' 
the  relator,  and  the  latter  was  in  possession 
of  the  building,  occasionally  unlocking  and 
entering  therein,  until  the  defendant  re- 
moved it  from  the  premises  into  the  street. 
Held  that  there  had  been  no  forcible  entry 
in  law  by  the  defendant.  People  v.  Field, 
53  Barb.  198;  1  Lans.  223. 

8.  Detainer  whan  forcible.  The  same 
circumstances  of  violence  or  terror  that  will 
make  an  entry  forcible,  will  constitute  a  for- 
cible detainer.  The  defendant  having  en- 
tered peaceably,  said  to  the  former  possessor, 
"  it  will  not  be  well  for  you,  if  you  ever  come 
upon  the  premises  again  by  day  or  night." 
It  was  held  a  question  for  the  jury  whether 
this  was  a  threat  of  personal  violence,  and 
therefore  a  forcible  detainer  within  the  stat- 
ute ;  and  a  new  trial  was  refused.  Kline  v. 
Rickert,  8  Cow.  236. 

9.  If  a  man  being  in  a  house,  refuse  to 
open  the  door  to  one  who  comes  to  make  an 
entry,  this  is  not  a  forcible  detainer.  So  if 
A.  be  in  possession  of  a  house,  or  have  a 
lease  of  it  at  the  will  of  B.,  and  B.  enters 
into  the  house  and  commands  A.  to  go  out, 
and  leave  him  in  possession,  and  A.  refuses, 
this  is  not  a  forcible  detainer.  Com.  v.  Dud- 
ley, 10  Mass.  403.  The  doctrine  of  forcible 
detainer  has  never  been  extended  to  per- 
sonal property.  State  v.  Marsh,  64  N.  C. 
378. 

2.  Proceedings. 

10.  Nature.  The  proceedings  under  the 
statute  of  New  York  to  prevent  forcible 
entry  and  detainer  are  of  a  mixed  nature, 
being  in  substance  a  civil  and  in  form  a 
criminal  prosecution.  People  v.  Smith,  24 
Barb.  16.  In  New  Hampshire,  although 
the  proceeding  is  in  the  form  of  a  criminal 
prosecution,  and  in  certain  cases  a  fine  may 
be  imposed,  yet  it  must  be  viewed  in  some 
respects  as  a  private  remedy.  State  v.  Har- 
vey, 3  New  Hamp.  65. 

11.  The  object  of  the  statute  of  New 
York  is  to  prevent  all  persons,  however 
good  their  title  or  right  to  premises,  from 
forcibly  acquiring  possession  of  them;  and 
having  peaceably  acquired  possession,  from 
holding  out  another  who  at  the  time  of  such 


192 


FORCIBLE  ENTRY  AND  DETAINER. 


Proceedings. 


entry  or  liokling  out  was  in  peaceable  posses- 
sion. It  matters  not  how  invalid  the  occu- 
pant's right  to  possession  may  be,  if  he  is  in 
the  peaceable  and  quiet  occupancy  of  prem- 
ises that  occupancy  cannot  be  forcibly  in- 
vaded. People  V.  Field,  53  Barb.  198;  1 
Lans.  222. 

12.  Although  the  main  object  of  the  New 
York  statute  of  forcible  entry  and  detainer 
is  to  preserve  the  public  peace  and  prevent 
parties  from  asserting  their  rights  by  force 
or  violence,  yet  by  gradual  additions  the 
remedy  has  become  in  effect  a  private  as 
well  as  a  public  one.  But  the  form  of  pro- 
ceeding and  the  I'ules  of  law  which  govern 
it  remain  to  a  great  degree  unchanged. 
Still,  to  secure  conviction,  there  must  be 
proof  of  a  wrong  done  to  the  public.  A 
mere  trespass  will  not  sustain  the  jDroceed- 
ing.  There  must  be  an  element  of  force, 
violence  or  terror.  Wood  v.  Phillips,  43  N. 
Y.  152. 

13.  Who  may  maintain.  In  New  York, 
a  party  in  the  peaceable  and  actual  posses- 
sion of  lands  at  the  time  of  the  forcible 
entry,  or  in  the  constructive  possession 
thereof  at  the  time  of  a  forcible  holding  out, 
is  entitled  to  proceed  under  the  statute  of 
forcible  entry  and  detainer,  although  he  is 
neither  seized  of  a  freehold  nor  possessed  of 
a  term  for  years  in  the  premises.  People  v. 
Van  Nostrand,  9  Wend.  50 ;  People  v.  Car- 
ter, 29  Barb.  208.  Actual  occupancy  at  the 
time  of  the  entry  is  not  necessary  in  order 
to  entitle  the  person  injured  to  proceed 
under  the  statute.  A  building  was  on  the 
land  of  the  State  without  objection  from  any 
person.  One  C.  had  the  right  to  keep  it 
there  until  the  State  or  its  grantee  or  lessee 
should  require  its  removal.  He  did  not 
occupy  or  use  it,  but  he  had  previously 
been  in  the  receipt  of  the  rents  and  profits, 
and  was  about  to  put  it  in  order  to  rent  it, 
and  he  went  into  it  whenever  he  had  occa- 
sion to  do  so.  Held  that  C.  was  in  actual 
possession.  People  v.  Field,  52  Barb.  198; 
1  Lans.  222.  For  all  purposes  of  the  statute, 
the  person  in  possession  of  a  house  must  be 
deemed  to  be  in  possession  of  the  land.     lb. 

14.  In  New  Hampshire,  any  one  who  is 
seized  of  land  in  fee  for  life,  or  possessed 


thereof  for  a  term  of  years,  and  who  is  with 
strong  hand  and  armed  power  turned  out  or 
held  out  of  possession,  may  maintain  a 
prosecution  for  forcible  entry  and  detainer, 
whether  the  seizin  be  by  right  or  wrong,  or 
whether  the  term  for  years  be  legal  or  not. 
State  V.  Pearson,  2  New  Hamp.  550. 

15.  In  Maine,  the  complainant  holding 
mortgages  of  the  premises  in  controversy, 
purchased  at  a  public  sale  on  execution 
the  respondent's  equity  of  redemption,  and 
entered  peaceably  into  possession.  While 
so  in  possession,  the  respondent  entered  and 
expelled  him  by  force.  Held  that  as  the 
complainant  by  his  purchase  acquired  all  the 
title  of  the  debtor  in  the  premises,  he  was 
entitled  to  process  of  forcible  entry  and  de- 
tainer.    Dyer  v.  Chick,  52  Maine,  350. 

16.  Proceedings  for  a  forcible  entry  and 
detainer  of  a  church  must  be  in  the  name 
of  the  corporation,  and  not  in  the  names  of 
the  trustees.  People  agst.  Fulton,  UN.  Y. 
94. 

17.  A  tenant  at  will  cannot  maintain  forci- 
ble entry  and  detainer  against  a  stranger  for 
expelling  him.     Com.  \.  Bigelow,  8  Pick.  31. 

18-  Against  whom  they  will  lie.     The 

defendant  need  not  be  a  tenant  of  the 
plaintiff".  It  is  sufficient  if  he  is  a  disseizor. 
Baker  v.  Cooper,  57  Maine,  388.  The  pro- 
ceedings may  be  maintained  against  one 
who  was  acting  as  agent  of  his  wife. 
Bailey  v.  Bailey,  61  lb.  361.  They  are  not 
applicable  to  the  relation  of  mortgagor  and 
mortgagee.     Reed  v.  Elwell,  46  lb.  270. 

19.  In  Maine,  where  an  execution  in  be- 
half of  an  insolvent  bank  had  been  extended 
on  real  estate,  and  seizin  delivered  to  the 
receivers,  it  was  held  that  forcible  entry 
and  detainer  might  be  maintained  by  them 
against  the  execution  debtor  who  remained 
in  possession  although  the  time  for  the  re- 
demption of  the  levy  had  not  expired. 
Baker  v.  Cooper,  supra. 

20.  An  indictment  for  forcible  detainer 
may  be  maintained  against  a  third  jjerson 
who  enters  after  judgment  against  a  former 
trespasser,  and  the  sheriff  who  has  the  writ 
of  restitution  may  turn  him  out  of  posses- 
sion.    State  V.  Gilbert,  2  Bay,  355. 


FORCIBLE  ENTRY   AND   DETAINER. 


193 


Complaint. 


Indictment. 


3.  Complaint. 

21.  What  to  contain.  A  complaint  for 
forcible  entry  and  detainer  must  contain 
enough  to  show  that  the  court  has  jurisdic- 
tion, without  a  resort  to  parol  testimony. 
Treat  v.  Bent,  51  Maine,  478.  The  statute 
of  New  York,  in  relation  to  forcible  entry 
and  detainer,  requires  the  party  to  disclose 
the  nature  of  his  right  to  the  possession — 
how  and  from  whom  it  was  acquired — so 
that  it  will  appear  that  his  right  is  valid. 
Where  the  complaint  alleged  that  the  relator 
and  his  grantor  had  been  in  the  quiet  and 
peaceable  possession  of  the  premises  for 
many  years,  and  for  more  than  five  years, 
and  had.  a  good  legal  right  and  estate  to 
said  premises,  and  still  had  a  legal  right  to 
the  possession  of  the  same,  it  was  held  that 
the  complaint  was  not  in  compliance  with 
the  statute,  but  that  it  wAs  not  so  defective 
as  to  deprive  the  ofiicer  of  jurisdiction. 
People  V.  Field,  53  Barb.  198;  58  lb.  270  ; 
s.  c.  i  Lans.  222. 

22.  Verification.  In  New  York,  the  veri- 
fication of  the  complaint  in  proceedings  of 
forcible  entry  and  detainer,  in  the  form  of 
verification  of  pleadings  prescribed  by  the 
Code,  is  not  sufficient.  The  affidavit  accom- 
panying the  complaint  must  be  positive  as 
of  the  knowledge  of  the  affiant,  or  if  any 
facts  are  stated  upon  information  they  must 
be  so  stated,  and  the  source  of  the  informa- 
tion be  given.  People  v.  Whitney,  1  N.  Y. 
Supm.  N.  S.  533. 

23.  Objection.  If  the  complaint  is  not 
sufficiently  full  and  specific,  the  defendant 
should  raise  the  question  before  the  judge, 
and  may  move  at  special  term  to  dismiss  the 
proceedings  for  the  defect.  People  v.  Field, 
53  Barb.   198;  1  Lans.  223. 

24.  Waiver  of  objection.  Although  pro- 
ceedings in  forcible  entry  and  detainer  being 
derived  from  statute,  strict  compliance  is  re- 
quired, yet  an  objection  to  the  sufficiency  of 
the  complaint  maybe  waived  by  omitting  to 
make  it  in  proper  time.  People  v.  Field, 
58  Barb.  270  ;  1  Lans.  223. 

25.  In  proceedings  for  forcible  entry  and 
detainer,  the  defendant  objected  to  the  veri- 
fication of  the  complaint  as  insufficient,  on 
the  first  opportunity  bsfore  the  county  judge. 

13 


The  jury  was  then  impaneled,  and  the  inqui- 
sition found  and  signed,  and  the  defendant 
traversed  it  and  brought  a  certiorari.  Held 
that  there  was  no  waiver  of  the  insufficiency 
of  the  affidavit.  People  v.  Whitney,  1 
N.  Y.  Supm.  N.  S.  533. 

4.  Indictment. 

26.  At  common  law.  An  indictment  for 
forcible  entry  is  sufficient  at  common  law, 
which  alleges  that  the  defendant  unlawfully, 
and  with  strong  hand,  did  break  and  enter 
into  a  certain  house  of  A.,  he,  the  said  A., 
being  then  and  there  in  peaceable  and  quiet 
possession  of  the  same.  State  v.  Whitfield, 
8  Ired.  315  ;  Cruser  v.  State,  3  Harr.  306. 

27.  Averment  of  title.  In  New  York,  an 
indictment  for  a  forcible  entry  and  detainer, 
under  the  statute  (Sess.  11,  ch.  6),  must  al- 
lege a  seizin  or  possession,  and  state 
whether  the  estate  of  the  relator  be  a  free- 
hold or  a  term  of  years,  and  the  averment  as 
to  his  estate  must  be  proved  as  laid.  Biink- 
erhoff  v.  Nelson,  13  Johns.  340 ;  People  v. 
Reed,  11  Wend.  157. 

28.  In  North  Carolina,  under  the  statute 
(21  Jac.  1),  the  indictment  must  state  the 
kind  of  term  from  which  the  party  is  ex- 
pelled, and  the  terra  must  be  subsisting  at 
the  time  of  the  trial.  State  v.  Butler,  1 
Taylor,  262. 

29.  Description  of  premises.  An  indict- 
ment for  forcible  entry  and  detainer  should 
describe  the  premises  with  so  much  certainty 
that  the  sherifl"  may  be  at  no  loss,  upon  a 
writ  of  restitution,  to  restore  the  injured 
party  to  the  possession.  Bickley  v.  Norris, 
2  Brev.  352.  The  premises  will  be  sufficient- 
ly described  by  the  term  "messuage."  State 
V.  Butler,  supra. 

30.  An  indictment  which  contained  the 
following  description  of  the  premises  was 
held  sufficient :  A  certain  close  of  two  acres 
of  arable  land,  situate  in  S.  township,  in  the 
county  aforesaid,  being  part  of  a  large  tract 
of  laud,  adjoining  lands  of  A.,  D.  and  H. 
Dean  v.  Com.  3  Serg.  &  Rawlc,  418. 

31.  A  forcible  and  unlawful  entry  into  a 
messuage  and  ten  acres  of  land,  in  the  peace- 
able possession  of  a  lessee  for  years,  is  suf- 
ficiently charged,  although  from  a  clerical 


104 


FORCIBLE  ENTRY  AND   DETAINER. 


Indictment. 


Evidence. 


Trial, 


-error  the  expulsion  is  alleged  as  to  the  mes- 
suage only.  Com.  v.  Rogers,  1  Serg.  & 
Raivle,  124. 

32.  Traverse.  In  New  York,  the  trav- 
erse to  an  indictment  for  a  forcible  entry  and 
detainer  need  not  be  in  writing.  Corless 
V.  Anthony,  4  Johns.  198. 

5.  Evidence.         w 

33.  As  to  premises.  Where,  in  an  infor- 
mation for  a  forcible  entry  and  detainer, 
there  is  a  variance  between  the  description 
of  the  property  as  laid,  and  the  evidence,  the 
judgment  will  not  be  sustained.  Ball  v. 
State,  26  Ind.  155. 

34.  The  steward  of  a  school  slept  in  a 
house  situated  within  the  curtilage,  but  not 
connected  with  the  dwelling-house,  of  the 
school,  by  any  common  roof  or  covering, 
and  for  which  lodging-rooms  the  steward 
paid  no  rent.  Held  that  the  house  occupied 
by  the  steward  was  not  in  law  his  dwelling- 
house,  but  was  the  dwelling-house  of  the 
proprietor  of  the  school,  and  that  an  indict- 
ment could  not  be  maintained  against  the 
proprietor,  for  an  entry  and  expulsion  of  the 
steward  from-  such  house,  provided  there 
was  no  injury  to  his  person  or  other  breach 
of  the  peace.  State  v.  Curtis,  3  Dev.  &  Batt. 
222. 

35.  Proof  of  possession.  On  the  trial  of 
an  indictment  for  a  forcible  entry  and  de- 
tainer, the  title  to  the  premises  is  not  in 
issue,  but  the  complainant  is  entitled  to 
recover  if  he  shows  himself  to  have  been  in 
peaceable  jjossession  before  tlie  defendant's 
entry.  People  v.  Leonard.  11  Johns.  504. 
Evidence  of  actual  possession  is  sufficient  to 
sustain  the  avei'ment  in  the  inquisition  that 
the  complainant  was  possessed  in  fee  simple. 
People  V.  Van  Nostraud,  9  Wend.  50. 

36.  Proof  of  entry.  Under  an  indictment 
at  common  law,  for  a  forcible  entry,  it  is 
sufficient  to  show  that  the  defendant  entei'ed 
with  such  force  and  violence  as  to  exceed  a 
bare  trespass.     State  v.  Pollok,  4  Ired.  305. 

37.  An  indictment  for  forcibly  entering  a 
field  is  not  sustained  l>y  evidence  that  the 
defendant  peaceably  entered  the  field,  and 
threw  stones  against  the  house  of  the  com- 
plainant, adjoining  the  field,  the  complainant 


at  the  time  being  in  the  house.     State  v. 
Smith,  2  Ired.  127. 

38.  Injured  party  as  witness.  In  Georgia, 
on  the  trial  of  an  indictment  for  forcible 
entry  and  detainer,  the  injured  party  is  a 
competent  witness.  Kersh  v.  State,  24  Ga. 
191.  But  is  otherwise  in  North  Carolina. 
State  V.  Fellows,  2  Hayw.  520. 

6.  Teial. 

39.  Right  of  defendant  on.  The  defend- 
ant has  a  right  to  produce  witnesses,  to 
cross-examine  the  complainant's  witnesses, 
and  sum  up  the  evidence.  People  v.  Reed, 
11  Wend.  157. 

40.  Inquisition.  If  the  defendant  have 
no  notice  of  the  inquisition,  the  omission 
will  be  fatal.     State  v.  Stokes,  Coxe,  392. 

41.  An  inquisition  for  forcible  entry  and 
detainer  will  be  sufficient,  although  '  the 
dates  are  expressed  in  figures.  Coenhoven 
V.  State,  Coxe,  258. 

42.  An  inquisition  of  forcible  entry  and 
detainer  which  purports  to  be  taken  on  the 
oaths  or  affirmations  of  certain  persons,  is 
defective,  unless  it  states  that  those  who 
were  affirmed  had  conscientious  scruples 
against  taking  an  oath.  State  v.  Putnam, 
Coxe,  260. 

43.  Under  an  indictment  for  a  forcible 
entry  and  detainer,  the  defendant  may  be 
found  guilty  of  a  forcible  detainer  only. 
Kline  v.  Rickert,  8  Cow.  226;  Corless  v. 
Anthony,  4  Johns.  198.  But  where  the  jury 
find  that  the  defendant  unlawfully,  and  with 
a  strong  hand,  detained,  it  cannot  be  implied 
that  the  entry  was  also  unlawful.  State  v. 
Godsey,  13  Ired.  348. 

44.  Restitution.  In  North  Carolina,  in 
forcible  entry  and  detainer,  a  magistrate 
cannot  award  restitution,  unless  the  jury  find 
that  the  complainant  had  either  a  freehold 
or  for  a  term  of  years.  State  v.  Anders,  8 
Ired.  15. 

4-5.  In  South  Carolina,  the  statute  of  8  Hen. 
6,  which  authorizes  justices  of  the  peace, 
upon  inquiry,  to  give  restitution  of  posses- 
sion to  tenants  of  any  estate  of  freehold  of 
lands  or  tenements,  entered  ujion  with  force 
or  withheld  by  force,  is  in  operation.  State 
V.  Speirin,  1  Brev.  119. 


FORCIBLE   TRESPASS. -FORGERY. 


195 


How  Committed. 


What  Constitutes. 


46.  Damages.  "  In  New  York,  the  justice 
cannot  give  to  the  complainant  a  gross  sum, 
independently  of  his  costs,  as  compensation 
for  the  injury  sustained,  but  only  sufficient 
to  reimburse  him  for  his  costs,  and  for  other 
damages  arising  from  the  wrongful  entry 
he  must  resort  to  his  action  of  trespass. 
Fitch  V.  People,  IG  Johns.  141. 

47.  Certiorari.  In  New  York,  when  pro- 
ceedings in  forcible  entry  and  detainer  are 
brought  into  the  Supreme  Court  on  certio- 
rari, the  court  has  power  to  examine  them, 
and  to  quash  them  if  found  irregular  or 
iusufficient.    People  v.  Smith,  24  Barb.  16. 


forcible  <Lrc0pa50. 

1.  How  committed.  A  forcible  tresjSass 
may  be  committed  by  acts  which  tend  to  a 
breach  of  the  peace,  without  the  employment 
of  actual  force.  State  v.  Armfield,  5  Ired. 
207. 

2.  When  indictable.  At  common  law, 
an  indictment  for  forcible  trespass  may  be 
maintained,  if  the  facts  charged  amount  to 
more  than  a  bare  trespass.  State  v.  Toliver, 
•5  Ired.  452. 

3.  To  render  a  forcible  trespass  the  sub- 
ject of  indictment,  some  one  must  be  in  the 
house,  or  on  the  premises,  to  cause  the  acts 
complained  of  to  amount  to  a  breach  of  the 
peace,  or  to  have  a  tendency  to  provoke  it. 
State  V.  McCauless,  9  Ired.  375 ;  State  v. 
Walker,  10  lb.  234  ;  State  v.  Mills,  2  Dev. 
420. 

4.  A  woman  with  a  family,  being  in  the 
peaceable  possession  of  a  dwelling-house  and 
its  appurtenances,  four  persons  entered  the 
door  yard  with  hostile  feelings  and  deport- 
ment, indicating  an  intention  to  injure  and 
insult  lier,  and  refused  to  go  away  when  she 
ordered  them  to  do  so.  Held  that  they  were 
liable  to  an  indictment  for  a  forcible  tres- 
pass.    State  V.  Toliver,  5  Ired.  452. 

5.  Indictment.  An  indictment  for  forci- 
ble trespass  must  allege  that  it  was  com- 
mitted with  a  strong  hand,  "  main  forU^'' 
which  implies  greater  force  than  is  expressed 
by  the  words  "  ^'^  et  nrmis,''''  and  the  indict- 
ment  must   also   state    who    was    present. 


State  V.  Ray,  10  Ired.  89;  State  v.  Walker, 
10  Ired.  234. 

6.  An  indictment  for  any  forcible  trespass 
upon  a  dwelling-house,  less  than  a  violent 
taking  or  withholding  of  the  possession  of 
it,  must  allege  that  the  occupier  was  in  the 
house  or  actually  present.  State  v.  Wiley,  4 
Dev.  &  Batt.  192. 

7.  An  indictment  for  forcible  trespass 
must  charge  the  actual  possession  of  the 
prosecutor ;  but  an  indictment  which  alleged, 
his  legal  possession,  and  that  the  defendant 
with  strong  hand  took  it  from  the  prosecu- 
tor, was  held  sufficient.  State  v.  Mills,  2 
Dev.  420. 

8.  When  the  name  of  the  couuty  is  men- 
tioned in  the  margin  of  the  indictment,  and 
it  is  charged,  that  the  dwelling-house  against 
which  the  forcible  trespass  is  alleged  to  have 
been  committed  was  there  situate,  it  will  be 
deemed  to  refer  to  the  county  mentioned  in 
the  margin.     State  v.  Armfield,  5  Ired.  207. 

9.  An  indictment  for  a  forcible  trespass 
in  taking  away  goods,  need  not  use  the 
words  against  his  will ;  it  is  sufficient  if 
words  are  used  which  necessarily  convey 
the  same  meaning.  State  v.  Armfield, 
siixira. 

10.  Evidence.  An  indictment  charging 
a  forcible  trespass  in  taking  a  slain  deer,  is 
not  supported  by  evidence  of  the  forcible 
taking  of  the  skin  of  the  deer.  State  v. 
Hemphill,  3  Dev.  &  Batt.  109. 

See  Trespass. 


JTorgcnj  aub  Counterfeiting. 

1.  What  constittttes. 

2.  What  may  be  the  subject  op. 

3.  Indictment. 

4.  Place  op  trial. 

5.  Evidence. 
C;  Verdict. 

1.  What  constitutes. 
1.  Definition.  Forgery  is  the  false  mak- 
ing, or  materially  altering,  with  intent  to 
defraud,  any  writing  which,  if  genuine, 
might  apparently  be  of  legal  efficacy,  or 
the  foundation  of  a  legal  liability.     State  v. 


190 


FORGERY  AND   COUNTERFEITING. 


What  Constitutes. 


Pierce,  8  Iowa,  231 ;  State  v.  Thompson,  19 
lb.  399 ;  State  v.  Jolmson,  2G  lb.  407 ;  Case 
of  Ames,  2  Maine,  365;  Com.  v.  Chandler, 
Thach.  Grim.  Cas.  187;  Horne  v.  State,  5 
Ark.  349;  State  v.  Wooderd,  20  Iowa,  541; 
State  V.  Waters,  3  Const.  R.  669.  And  the 
uttering  of  such  a  paper,  knowing  it  to  be 
false,  •vvith  intent  to  defraud,  is  an  offense  of 
the  same  grade.  Com.  v.  Whiting,  Thach. 
Crim.  Cas.  588 ;  State  v.  Twitty,  2  Hawks, 
449.  When  a  genuine  instrument  is  so  al- 
tered, the  forgeiy  may  be  charged  as  consist- 
ing in  the  alteration,  or  the  forgery  of  the 
entire  instrument.  People  v.  Brotherton,  47 
Cal.  388 ;  s.  c.  2  Green's  Crim.  Reps.  444. 

2.  Acts  which  are.  The  indorsing  of 
the  name  of  another  on  a  negotiable  instru- 
ment, without  his  authority,  is  forgery. 
Powell  V.  Com.  11  Gratt.  822.  And  the 
same  is  the  case  of  the  fraudulent  alteration 
of  the  date  of  a  receipt,  in  order  to  prejudice 
the  rights  of  another,  and  enable  the  party 
altering  it  to  obtain  a  double  credit  for 
money  paid.  State  v.  Kattleraann,  35  Mo.  105. 

3.  Where  the  book-keeper  of  merchants 
makes  a  false  entry,  with  intent  to  defraud 
them,  it  is  forgery  at  common  law.  Biles  v. 
Com.  32  Penn.  St.  529. 

4.  Forgery  may  be  committed  under  the 
statute  of  New  York,  either  by  the  false 
making  of  an  instrument,  or  by  the  making 
of  a  material  alteration,  erasure,  or  insertion 
in,  or  addition  to,  a  true  instrument,  al- 
though but  in  a  letter  or  figure,  or  by  mis- 
applying a  genuine  signature,  as  by  writing 
over  it,  in  whole  or  in  part,  an  instrument 
for  which  it  was  never  intended.  The  pris- 
oner was  the  agent  of  an  insurance  com- 
pany to  effect  insurance  on  persons  against 
accidental  loss  of  life  or  personal  injury 
while  traveling  by  public  conveyance,  and 
to  that  end  to  fill  up  the  blank  policy  tickets 
intrusted  to  him.  With  intent  to  defraud 
his  principal,  he  stamped  the  policy  ticket 
with  a  false  date,  and  issued  it  that  it  might 
be  enforced  as  a  policy  upon  a  person  who 
he  knew  had  been  accidentally  killed  while 
traveling  by  public  conveyance.  Held.,  thiit 
he  was  guilty  of  forgery.  People  v.  Gra- 
ham, 6  Parker,  135. 

5.  Where  a  person  intrusted  with   bank 


checks,  with  directions  to  fill  them  up  to 
the  use  of  certain  persons,  inserted  in  one 
of  the  checks  the  words  "  cash  or  bearer," 
in  place  of  the  words  "  order  of,"  and  drew 
the  money  on  it  for  his  own  use,  it  was  held 
that  he  was  guilty  of  forgery.  State  v. 
Kroeger,  47  Mo.  552.  And  the  same  was 
held  where  the  alteration  of  a  written  in- 
strument consisted  in  tearing  off  a  condition 
by  which  the  writing  which  was  non-nego- 
tiable, was  made  negotiable.  State  v.  Strat- 
ton,  27  Iowa,  420. 

6.  An  indictment  for  forgery  may  be 
maintained  for  making  and  issuing  a  false 
instrument,  requesting  persons  to  whom 
goods  have  been  sent  by  the  owner  to  de- 
liver them  to  the  bearer,  the  latter  having 
induced  the  owner  so  to  send  the  goods  by 
falsely  representing  that  he  was  directed  by 
those  to  whom  the  goods  were  sent,  to  buy 
the  same  for  them.  And  the  indictment 
mny  charge  that  the  forgery  was  committed 
with  intent  to  defraud  the  persons  to  whom 
the  goods  were  sent,  and  to  whom  the  order 
was  directed.  Hari'is  v.  People,  9  Barb.  664. 
It  is  forgery  within  the  statute  of  Tennessee 
(Code,  §  4718),  to  sign  the  name  of  another 
person  to  an  order  for  goods,  without  au- 
thority, for  the  fraudulent  purpose  of  get- 
ting the  goods  on  the  credit  of  such  person. 
Hale  V.  State,  1  Cold.  Tenn.  167;  overruling 
Walton  V.  State,  6  Yerg.  377. 

7.  Coal  being  consigned  to  A.,  of  New- 
York,  and  carried  there,  it  was  claimed  by 
another  of  the  name  of  A.,  who  lived  in  the 
same  city,  but  was  not  the  true  consignee, 
and  he,  knowing  this,  obtained  an  advance 
of  money  by  indorsing  the  permit  for  the 
delivery  of  the  coal.  Held^  forgery,  and  not 
obtaining  goods  by  false  pretenses.  People 
v.  Peacock,  6  Cow.  72.  But  see  Graves  v. 
Am.  Exch.  Bank,  17  N.  Y.  205,  where  it  was 
doubted  whether  it  was  forgery  for  a  person 
not  the  payee  of  a  bill  of  exchange,  but 
bearing  the  same  name,  to  indorse  and  trans- 
fer it,  knowing  that  he  was  not  the  person 
intended  as  payee. 

8.  A  person  who  takes  base  pieces  of  coin, 
having  the  impression  and  appearance  of 
real  coin,  though  of  different  color,  and 
brightens  them  so  as  to  give  them  the  re- 


FORGERY   AND   COUNTERFEITING. 


197 


What  Constitutes. 


semblance  of  real  coin,  and  render  them 
capable  of  circulation,  is  guilty  of  counter- 
feiting.    Raswick  v.  Com.  3  Va.  Cas.  356. 

9.  Where  the  grantor  of  land  prepared  the 
draft  of  a  deed  in  which  he  correctly  de- 
scribed the  premises  to  be  conveyed,  which 
having  been  examined  by  the  grantor,  the 
grantee  afterward  fraudulently  framed  a 
new  deed,  embracing  in  the  description  the 
grantor's  whole  farm,  and  oifered  it  for  exe- 
cution as  the  deed  before  examined,  and 
the  grantor  executed  and  delivered  the  same 
without  examining  it,  it  was  held  that  this 
was  forgery.  State  v.  Shurtliff,  18  Maine, 
368. 

10.  The  uttering.  An  assertion  or  dec- 
laration that  the  forged  writing  is  good, 
made  in  the  prosecution  of  a  purpose  to  ob- 
tain the  money  mentioned  therein,  consti- 
tutes an  uttering.  Chahoon  v.  Com.  20 
Gratt.  733;  Sands  v.  Com.  lb.  800. 

11.  The  bringing  of  a  suit  upon  forged 
paper,  as  counsel,  for  the  purjiose  of  recov- 
ering the  money  jjurporting  to  be  due  by 
suck  paper  is,  in  law,  an  uttering  ;  and  if  it 
be  done  with  knowledge  of  the  forgery  and 
intent  to  defraud,  it  is  an  offense  within 
the  statute  of  Virginia.  Chahoon  v.  Com. 
supra  ;  Sands  v.  Com.  lb. 

12.  If  a  forged  order  be  made  payable  to 
the  defendant,  it  is  not  necessary  in  order  to 
constitute  an  uttering  that  there  should 
have  been  a  formal  indorsement.  A  delivery 
of  the  order,  with  the  intent  to  defraud,  is 
sufficient,  and  a  mere  failure  to  comply 
strictly  with  the  forms  of  law,  cannot  be 
relied  on  to  defeat  the  charge  of  criminal 
intent.     People  v.  Ah  Woo,  28  Cal.  205. 

13.  Presenting  a  forged  draft  or  order  for 
money,  for  payment,  although  payment  is 
refused  and  tbe  draft  returned  to  the  jire- 
sentor,  is  an  uttering  and  publishing  within 
the  meaning  of  the  statute  of  Michigan  (R. 
S.  ch.  155,  §  2).  People  v.  Brigham,  3 
Mich.  550. 

14.  False  instrument  need  not  have 
been  received  as  genuine.  To  constitute 
an  uttering,  it  is  not  necessary  that  the 
forged  instrument  should  have  actually 
been  received  as  genuine  by  the  party  upon 
whom    the    attempt    to   defraud   is   made. 


People  V.  Caton,  25  Mich.  388.  On  the  trial 
for  the  forgery  of  a  mortgage,  it  was  proved 
that  the  mortgage  was  put  upon  record, 
that  it  was  taken  from  the  register's  office 
by  the  defendant's  daughter,  and  that  after- 
ward, but  before  discovery  of  the  forgerj', 
and  without  seeing  the  instrument,  the 
mortgagor  made  payments  upon  it,  which 
the  defendant  indorsed.  Held  that  there 
was  a  sufficient  uttering.  Perkins  v.  People, 
37  Mich.  386.  Any  delivery  of  a  spurious 
note  to  another,  for  value,  for  the  jjurpose 
of  being  passed  or  put  into  circulation  as 
money,  is  an  uttering  within  the  meaning  of 
the  act  of  Congress  of  June  30th,  1864  (13 
Stats,  at  Large,  331,  §  10).  U.  S.  v.  Nelson, 
1  Abb.  135. 

15.  The  offense  of  uttering  and  publish- 
ing is  not  complete  until  the  false  writing 
passes  into  the  hands  or  possession  of  some 
person  other  than  the  wrong-doer,  his  agent 
or  servant.  People  v.  Rathbun,  21  Wend. 
509.  It  is  no  defense  that  the  counterfeit 
bills  were  passed  at  a  gaming  table.  Com. 
V.  Percival,  Thach.  Crim.  Cas.  393. 

16.  Fraudulent  intent.  To  utter  a  count- 
erfeit note,  and  offer  it  to  a  person  without 
the  intention  to  defraud  him,  is  not  an  of- 
fense, either  at  common  law  or  under  the 
statute  of  Massachusetts  of  1804.  Com.  v. 
Goodenough,  Thach.  Crim.  Cas.  133. 

17.  But  although  the  intention  to  defraud 
is  of  the  essence  of  the  crime  of  forgery,  yet 
it  is  not  essential  that  any  person  be  actually 
defrauded,  or  that  any  act  be  done  tovrard 
the  attainment  of  the  fi-uits  of  the  crime, 
other  than  the  making  of  the  instrument,  if 
from  the  circumstances  of  the  case  the  jury 
can  fairly  infer  that  it  was  the  intention  of 
the  party  to  utter  the  forged  instrument. 
Henderson  v.  State,  14  Texas,  503. 

18.  On  the  trial  of  an  indictment  for  forg- 
ing and  uttering  a  deposition  used  by  the 
prisoner  in  an  action  for  divorce  brought  by 
him,  the  court  was  requested  to  charge  that 
if  the  defendant  believed  substantially  the 
deposition,  and  his  object  was  to  obtain  an 
equitable  divorce,  believing  himself  entitled 
thereto,  and  his  sole,  object  was  to  relieve 
himself  from  the  inconvenience  and  odium 
of  living  in  society  separate  from  his  wife. 


198 


FOEGERY   AND   COUNTERFEITING. 


What  Constitutes. 


What  may  be  the  Subject  of. 


■without  the  hope  of  reconciliation,  and  did 
not  intend  to  defraud  her  of  money  or  prop- 
erty, or  injure  her  character,  he  would  not 
be  guilty  of  forgery,  though  he  manufac- 
tured the  deposition  and  uttered  the  same. 
Held  properly  refused.  State  v.  Kimball,  50 
Maine,  409. 

19.  May  be  by  agent.  Forgery  may  be 
committed,  although  the  act  was  not  done, 
either  in  whole  or  in  part,  by  the  hand  of  a 
person  charged,  but  through  another,  who 
was  an  involuntary  agent.  Com.  v.  Hill,  11 
Mass.  136;  State  v.  Shurtliflf,  18  Maine,  368. 
A  person  in  one  county  may,  by  an  innocent 
agent  in  another  county,  utter  and  publish  a 
forged  instrument  in  the  latter  county  so  as 
to  be  there  guilty.  Bishop  v.  State,  30  Ala. 
34. 

20.  Must  be  by  some  one  in  existence. 
A  person  cannot  be  convicted  under  an  in- 
dictment charging  an  intent  to  defraud  a 
person  or  corporation  having  no  existence. 
State  V.  Givens,  5  Ala.  747 ;  contra,  U.  S.  v. 
Turner,  7  Peters,  132;  U.  S.  v.  Mitchell,  1 
Bald.  366.  Therefore  the  execution  and 
delivery  of  a  note,  with  intent  to  defraud, 
signed  in  the  name  of  a  fictitious  lii'm,  of 
which  the  defendant  purports  to  be  a  mem- 
ber, is  not  forgery.  Com.  v.  Baldwin,  11 
Gray,  197. 

21.  Several  acts.  Having  in  possession 
several  bank  notes  of  different  banks  at  one 
time,  with  intent  to  pass  them,  constitutes 
but  one  offense,  notwithstanding  the  inten- 
tion was  to  defraud  the  several  banks  by 
which  they  were  issued  as  well  as  the  per- 
son taking  them.  State  v.  Benham,  7  Conn. 
414. 

22.  The  act  of  possessing  several  counter- 
feit bank  bills  at  the  same  time,  constitutes 
one  and  the  same  offense.  When  therefore, 
a  person  had  been  tried  and  acquitted  for 
having  in  his  i^ossession  one  of  several  coun- 
terfeit bank  notes  of  different  banks,  it  was 
held  that  he  could  not  be  again  tried  for 
having  each  of  the  other  notes.  People  v. 
Van  Keuren,  5  Parker,  66. 

23.  But  where  five  drafts  were  forged, 
each  for  the  same  amount,  upon  the  same 
sheet  of  paper,  at  the  same  time,  by  the  same 
person,  it  was  held  that  although  the  utter- 


ing was  one  indivisible  act,  yet  that  the 
forging  of  each  draft  was  a  distinct  and 
separate  offense.     Barton  v.  State,  23  Wis. 

587. 


2.  What  may  be  the  sttb-ject  of. 

24.  Must  appear  to  be  the  act  of  an- 
other. A  writing,  to  be  the  subject  of  for- 
gery, must  in  general  be  or  purport  to  be 
the  act  of  another,  or  it  must  at  the  time  be 
the  property  of  another ;  or  it  must  be  some 
writing  under  which  others  have  acquired 
some  rights  or  have  become  liable,  and 
where  these  rights  or  liabilities  are  sought 
to  be  affected  or  changed  by  the  alteration, 
without  their  consent.  A  person  cannot 
alter  his  own  book  account  before  any  settle- 
ment or  adjustment  of  it,  so  as  to  make  it 
forgery.  State  v.  Young,  46  New  Hamp. 
266. 

25.  A  bill  of  exchange  was  drawn  by  the 
Bank  of  Ireland,  on  the  Bank  of  England, 
to  the  order  of  Mrs.  A.  Haliday,  for  £43  7s. 
6<;Z.,  and,  after  several  intermediate  indorse- 
ments, was  indorsed  to  Chas.  Mcintosh  & 
Co.,  the  possession  of  which  was  surrepti- 
tiously obtained  by  Alex.  Heilbonn,  the 
prisoner,  a  clerk  for  Mcintosh  &  Co.,  who 
indorsed  the  bill  thus:  "  Received  for  Chas. 
Mcintosh  &  Co.,  Alex.  Heilbonn,  No.  9 
Vine  street.  Regent  street.  No.  73  Alder- 
man bury  ;  "  whereupon  the  bill  was  paid  to 
him.  Held  that  such  indorsement  did  not 
constitute  forgery,  though  it  appeared  that 
Heilbonn  had  no  authority  to  indorse  bills 
of  exchange,  or  to  receive  the  amounts 
thereof;  and  the  words  "Chas.  Mcintosh  & 
Co."  were  an  imitation  of  the  handwriting 
of  a  member  of  the  firm,  the  rest  of  the  in- 
dorsement being  in  the  usual  handwriting 
of  Heilbonn.  In  re  Heilbonn,  1  Parker, 
429. 

26.  Must  be  calculated  to  injure.  To 
constitute  forgery,  the  forged  instrument 
must  be  one  which,  if  genuine,  may  injure 
another;  and  this  must  appear,  either  from 
the  description  of  the  instrument,  or  by  the 
averment  of  matter  aliunde.  Where  from 
aught  that  appears  in  the  indictment,  the 
instrument   was   a   nudum   pactum,  forgery 


FORGERY   AND   COUNTERFEITING. 


199 


What  may  be  the  Subject  of. 


cannot  be  predicated  upon  it.     People  v. 
Tomlinsou,  35  Cal.  503. 

27.  An  instrument  which  is  invalid  on  its 
face  cannot  be  the  subject  of  forgery,  be- 
cause it  has  no  legal  tendency  to  effect  a 
fraud.  If  a  statute  authorizes  an  insti'uraent 
not  known  to  the  common  law,  and  so  pre- 
scribes its  form  as  to  render  any  other  form 
null,  forgery  cannot  be  committed  by  mak- 
ing it  in  a  form  not  provided  by  statute, 
even  though  it  is  so  like  the  genuine  as  to 
be  likely  to  deceive  most  persons.  Cunning- 
ham V.  People,  UN.  Y.  Supm.  N.  S.  455. 

28.  Falsely  subscribing  the  name  of  a  wit- 
ness to  a  bond  which  is  not  required  to  have 
a  subscribing  witness,  does  not  vitiate  the 
bond,  and  is  not  forgery.  State  v.  Gherkin, 
7  Ired.  200. 

29.  Where  an  order  for  the  delivery  of 
goods  was  accepted  and  paid,  and  returned 
to  the  drawer,  and  the  date  of  it  afterward 
altered  by  him,  such  alteration  was  held  not 
to  be  forgery  at  common  law,  although  done 
with  an  intent  to  defraud.  People  v.  Fitch, 
1  Wend.  198. 

30.  After  notice  of  execution,  and  a  writ 
of  inquiiy  served  on  the  attorney,  he  altered 
the  figures  indicating  the  day  ajapointed  for 
executing  the  writ,  in  order  to  make  the 
notice  irregular,  and  with  intent  to  defraud. 
Held  not  forgery,  either  under  the  statute  of 
New  York  or  at  common  law.  People  v. 
Cady,  6  Hill,  490. 

31.  Although  an  indictment  for  forgery 
may  be  maintained  for  altering  the  words 
and  figures  of  a  bank  bill,  yet  it  is  doubt- 
ful, if  it  could  be,  for  simply  altering  the 
marginal  emblems  or  marks.  State  v. Waters, 
3  Brev.  507. 

32.  Need  not  be  such  as  that,  if  genuine, 
it  would  be  binding.  It  is  not  essential 
that  the  person  in  whose  name  the  instru- 
ment forged  purports  to  be  made,  should 
have  the  legal  capacity  to  make  it ;  nor  that 
the  person  to  whom  it  is  directed,  should  be 
bound  to  act  upon  it  if  genuine,  or  have  a 
remedy  over.  The  law  looks  only  to  the 
falsity  of  the  instrument,  and  the  fraudu- 
lent use  of  it  as  genuine.  People  v.  Krum- 
mer,  4  Parker,  217.  A  request  to  charge 
the  jury,  that  "  no  fraud  in  law  could  have 


been  committed  upon  K.  at  the  time  of  the 
alleged  forgery  and  uttering,  if  she  was  tlic 
lawful  wife  of  the  accused,"  was  held  right- 
ly refused.    State  v.  Kimball,  50  Maine,  409. 

33.  The  following  instruction  was  held 
proper:  That  if  the  note  was  fictitious,  and 
the  jorisoner  knew  it,  and  jjassed  it  in  abso- 
lute payment  of  a  debt,  this  would  be  a 
passing  under  the  statute,  although,  at  the 
time  of  the  payment,  he  might  have  agreed 
to  take  it  back,  if  it  should  prove  not  to  be 
genuine.     Perdue  v.  State,  2  Humph.  494. 

34.  The  ofl^ense  of  disposing  and  putting 
away  forged  bank  notes  was  held  to  have 
been  committed,  though  the  person  to  whom 
they  were  disposed  was  an  agent  for  the 
bank  to  detect  forgeries,  and  applied  to  the 
prisoner  to  purchase  forged  bank  notes,  and 
had  them  delivered  to  him  in  order  to  dis- 
pose of  them.     State  v.  Wilkius,  17  Vt.  151. 

35.  Must  be  likely  to  deceive.  The  jury 
must  be  satisfied  that  the  resemblance  of  the 
forged  to  the  genuine  instrument  is  such  as 
might  deceive  a  person  exercising  ordinary 
caution.     U.  S.  v.  Morrow,  4  Wash.  C.  C. 

i  oO. 

36  But  a  bare  possibility  of  imposing  on 
another  is  sufficient  to  constitute  forgery. 
State  V.  Bennett,  19  La.  An.  895.  It  is  not 
necessary  that  there  should  be  so  perfect  a 
resemblance  to  the  genuine  handwriting  of 
the  party  whose  name  is  forged,  as  would 
impose  on  persons  having  particular  knowl- 
edge of  the  handwriting  of  such  party.  Nor 
is  it  necessary  that  the  officers  of  the  bank 
upon  which  a  check  purports  to  be  drawn 
would  have  probably  been  misled  and  de- 
ceived by  it.  Com.  v.  Stephenson,  11  Cush. 
481. 

37.  Where  there  is  a  bank  of  the  same 
name  in  two  different  cities,  one  of  which  is 
insolvent  and  the  other  good,  erasing  the 
name  of  the  city  on  a  note  of  the  former 
bank,  and  putting  in  its  place  the  name  of 
the  latter  city,  is  forgery,  although  the  name 
was  pasted  over  the  other  name  in  such  a 
way  that  it  might  have  been  detected  by 
close  inspection.  State  v.  Robinson,  1  Ilarr. 
507. 

38.  It  does  not  constitute  forgery  to  ob- 
tain by  false  and  fraudulent  representations 


200 


FORGERY   AND   COUNTERFEITING. 


What  may  be  the  Subject  of. 


the  consent  of  tlie  surety  to  a  bond  to  a  ma- 
terial alteration  made  after  the  latter  had 
signed  the  bond,  although  the  suretj^  quali- 
fied his  consent  by  making  it  depend  upon 
the  truth  of  the  defendant's  representations. 
State  V.  Flanders,  38  New  Hamp.  324. 

39.  To  constitute  the  forgery  of  an  order 
for  the  delivery  of  goods  within  the  statute 
of  Georgia,  the  person  whose  name  is  forged 
need  not  have  goods  in  the  hands  of  the 
drawee.     Haskius  v.  State,  11  Ga.  92. 

40.  Must  be  such  that  it  would  have 
been  good  if  genuine.  An  instrument  to 
be  the  subject  of  an  indictment  for  forgery 
must  either  appear  on  its  face  to  be  one 
which  if  true  would  possess  some  legal 
validity,  or  if  it  do  not  so  appear  on  the 
fiice  of  the  instrument  facts  must  be  averred 
which  will  enable  the  court  to  see  that  if 
it  were  genuine  it  would  jDossess  such  valid- 
ity. State  V.  Smith,  8  Yerg.  150;  People 
V.  Harrison,  8  Barb.  560 ;  People  v.  Shall,  9 
Cow.  778;  U.  S.  v.  Mitchell,  11  Bald.  366, 
contra.  Where,  therefore,  an  indictment  for 
the  forgery  of  "  an  accountable  receipt  for 
personal  property,  viz.,  an  elevator  ticket 
for  wheat,"  did  not  allege  that  the  person 
whose  name  was  signed  to  the  receipt  was 
an  agent  of  the  elevator  company,  or  show 
any  connection  between  him  and  the  com- 
pany, it  was  held  insufficient.  State  v. 
Wheeler,  19  Minn.  98. 

41.  Forgery  cannot  be  committed  by 
making  or  altering  a  written  instrument 
which  does  not  on  its  face  import  any  value 
or  obligation.  Howell  v.  State,  37  Texas, 
591.  Therefore,  the  forgery  of  a  writing 
purporting  to  contain  a  promise  to  pay  in 
labor,  without  consideration,  is  not  indicta- 
ble. People  V.  Shall,  9  Cow.  778.  So 
likewise  the  counterfeiting  of  foreign  coin 
not  made  current  by  law  in  the  United 
States  is  not  an  indictable  offense.  U.  S.  v. 
Gardiner,  10  Pet.  618. 

42.  An  indictment  cannot  be  maintained 
for  forging  a  certificate  or  acknowledgment 
of  a  deed  when  the  certificate  does  not  state 
that  the  grantor  acknowledged  the  execu- 
tion of  the  conveyance.  Peoj^le  v.  Harrison, 
8  Barb.  560. 

43.  A  writing  which,  if  genuine,  has  no 


legal  validity,  but  is  a  mere  attempt  to  re- 
ceive courtesies  on  a  promise  of  no  Ijinding 
obligation  to  reciprocate  them,  cannot  be 
the  subject  of  forgery.  Waterman  v.  People, 
67  111.  91.  Therefore,  a  false  letter  of  intro- 
duction requesting  the  person  to  whom  it  is 
addressed  to  let  the  bearer  have  money,  is 
not  the  subject  of  forgery  either  at  common 
law  or  under  the  statute  of  Virginia. 
Foulke's  Case,  2  Rob.  836. 

44.  Where  an  indictment  alleged  that  the 
defendant,  contriving  and  intending  to  de- 
ceive one  A.,  and  to  induce  him  to  employ 
the  defendant  and  to  pay  him  large  wages, 
exhibited  and  delivered  to  the  said  A.  a 
certain  pretended  certificate  of  good  char- 
acter, it  was  held  that  it  was  not  forgery. 
Com.  V.  Chandler,  Thach.  Crim.  Cas.  187. 

45.  A  writing  which  states  that  certain 
persons  are  solvent  and  able  to  pay  a  note, 
to  which  their  names  appear  as  makers, 
is  not  such  a  writing  as  may  be  the  subject 
of  forgery  under  the  statute  of  Alabama  of 
1836.     State  v.  Givens,  5  Ala.  747. 

46.  Imitation  of  instrument  having  no 
validity.  Although  a  writing  invalid  on 
its  face  cannot  be  the  subject  of  forgery,  yet 
where  the  invalidity  is  to  be  made  out  by 
proof  of  some  extrinsic  fact,  the  instrument 
if  good  on  its  face,  may  be  capable  of  eflect- 
ing  a  fraud,  and  the  pnrty  making  the  same 
may  be  punished.  State  v.  Piet-ce,  8  Iowa, 
231;  State  v.  Johnson,  26  lb.  407. 

47.  If  the  imitation  be  calculated  to  im- 
pose upon  jiersons  of  ordinary  observation, 
and  the  instrument  be  prima  facie  fitted  to 
pass  as  a  true  one,  it  will  be  the  subject  of 
forgery,  although  the  imitation  be  of  a  bank 
bill  of  a  denomination  which  the  bank  did 
not  pass.  State  v.  Carr,  5  New  Hamp.  367 ; 
Com.  V.  Smith,  7  Pick.  137.  And  see  U.  S. 
V.  Turner,  7  Pet.  132.  In  New  Jersey,  it 
was  held  indictable  to  utter  and  publish  a 
forged  or  counterfeit  bank  note  of  another 
State  for  two  dollars,  although  the  passing 
of  any  bank  note  under  five  dollars  was  pro- 
hibited by  statute.  State  v.  Hart,  2  Harr. 
327. 

48.  A  bail  bond  which  has  been  altered  in 
a  material  part  may  be  the  subject  of  a  for- 
gery, notwithstanding  some  doubts  as  to  the 


FOEGEEY  AND   COUNTERFEITING. 


201 


What  may  be  the  Subject  of. 


validity  of  the  bond  arising  from  the  re- 
citals in  the  condition.  Com.  v.  Linton,  2 
Va.  Cas.  476. 

49.  Printed  instrument.  Forgery  may 
be  committed  by  counterfeiting  an  insti'U- 
ment  wholly  printed  or  engraved,  and  on 
which  there  is  no  written  signature  jierson- 
ally  made  by  those  to  be  bound.  Com.  v. 
Ray,  3  Gray,  441.  The  statute  of  New 
York  against  forgery  includes  not  only 
written  instruments,  but  also  such  as  are 
engraved  or  j^riuted,  being  or  purporting  to 
be  the  act  of  another,  by  the  forging  of 
which  any  person  "  may  be  affecterJ,  bound 
or  in  any  way  injured  in  his  person  or  prop- 
erty."    People  V.  Ehoner,  4  Parker,  166. 

50.  Instrument  without  address.  A 
written  instrument,  to  be  the  subject  of  for- 
gery under  the  statute  of  New  York,  need 
not  be  addressed  to  any  one.  Noakes  v. 
People,  25  N.  Y.  380. 

51.  Revenue  stamp.  The  making  of  a 
forged  instrument  with  the  criminal  intent 
is  complete  without  the  affixing  of  the  prop- 
er internal  revenue  stamp.  Hortou  v.  State, 
32  Texas,  79;  State  v.  Young,  47  New 
Hamp.  402.  The  defendant  was  indicted 
for  "  uttering  and  publishing  as  true  a  false 
and  forged  promissory  note  for  the  payment 
of  money,  knowing  the  same  to  be  false  and 
forged,  with  intent  to  injure  and  defraud." 
Held  that  the  prosecution  might  be  sus- 
tained notwithstanding  the  note  never 
had  a  revenue  stamp  attached  to  it.  State 
Y.  Mott,  16  Minn.  472.  But  where  an  in- 
dictment for  forging  a  draft  set  out  the 
draft  in  full,  and  it  did  not  appear  that  there 
was  any  stamp  on  the  draft,  it  was  held  on 
motion  in  arrest  of  judgment  that  a  convic- 
tion could  not  be  sustained.  John  v.  State, 
23  Wis.  504. 

52.  Writing  made  on  Sunday.  A  forged 
writing  purporting  to  have  been  made  on 
Sunday  may  notwitlistanding  be  the  basis  of 
a  prosecution  for  forgery,  as  it  is  competent 
to  show  that  the  date  is  false,  and  that  the 
writing  was  in  fact  made  the  day  previous. 
Van  Sickle  v.  People,  2!)  Mich.  Gl. 

53.  Deed  of  land  in  another  State. 
Making  a  false  deed  witiiin  the  State  of  New 
York,  for  lands  lying  in  another  State  or 


People  v.  Flanders,  18 


territory,  is  forgery. 
Johns.  163. 

5i.  Instrument  for  counterfeiting  coin. 

In  Massachusetts,  an  indictment  may  be 
maintained  under  the  statute  (R.  S.  ch.  127, 
§  18),  for  knowingly  having  in  possession  an 
instrument  adapted  and  designed  for  making 
one  side  only  of  a  counterfeit  coin,  with 
intent  to  use  the  same  in  making  such  coin. 
Com.  V.  Kent,  6  Mete.  221. 

55.  Note  dr  order.  The  following  instru- 
ment: "Due  J.  F.  one  dollar  on  settle- 
ment this  day,"  is  the  forgery  of  a  note 
for  the  payment  of  money  within  the  statute 
of  New  York.  People  v.  Finch,  5  Johns.  236. 
But  the  following:  "Pay  to  A.  or  bearer, 
1500  dollars  in  B.'s  bills  or  yours,"  is  not 
a  forgery  of  an  order  for  the  payment  of 
money  or  the  delivery  of  goods.  People  v. 
Farrington,  14  Johns.  347.  A  false  writing 
in  these  words:  "  Mr.  S. — Sir,  Let  the  bearer 
trade  13  dollars  and  25  cents,  and  you  will 
oblige,"  was  held  to  be  the  forgery  of  an  or- 
der for  the  delivery  of  goods.  People  v. 
Shaw,  5  Johns.  236. 

56.  An  order  for  the  delivery  of  goods  may 
be  the  subject  of  forgery,  if  it  be  of  such  a 
character  that  another  person  can  by  the  use 
of  it  be  deprived  of  property,  although  not 
on  its  face  addressed  to  any  one.  People  v. 
Noakes,  5  Parker,  291.  An  order  in  the  fol- 
lowing form :  "  Mr.  A. — Sir,  deliver  to  my 
son,  one  pair  of  walking  shoes,  and  charge 
the  same  to  me.  Yours,  B.,"  is  an  order  for 
the  delivery  of  goods  within  the  statute  of 
Massachusetts,  though  B.  have  no  goods  in 
the  drawee's  hands.  Com.  v.  Fisher,  17 
Mass.  46. 

57.  Counterfeiting  a  railway  pass  is  forgery 
at  common  law.  Com.  v.  Ayer,  3  Cush.  150. 
A  county  warrant  may  be  the  subject  of 
forgery,  under  the  statute  of  Missouri. 
State  V.  Fenley,  18  Mo.  445.  An  acceptance 
of  an  order  for  the  delivery  of  goods  may 
be  the  subject  of  forgery.  Com.  v.  Ayer, 
mqira. 

58.  A  common  receipt  for  money  in  full 
of  all  demands  is  a  discharge  for  money 
within  a  statute  prescribing  the  punislmient 
for  forging  "  an  order,   acquittance,  or  dis- 


202 


FORGERY  AND   COUNTERFEITING. 


What  may  be  the  Subject  of. 


Indictment, 


charge  for  money  or  otlier  property.''     Com. 
V.  Talbot,  3  Allen,  IGl. 

59.  A  forged  instrumeut  was  as  follows : 
"Wen.  19th,  Mr.  Davis,  pleas  let  the  boy 
have  $6,00  dolers  for  me.  B.  W.  Earl." 
Held,  an  order  for  the  payment  of  money 
■\nthin  the  statute  of  Ohio.  Evans  v.  State, 
8  Ohio,  196. 

60.  The  following  order  was  held  to  be 
the  subject  of  forgery,  although  it  expressed 
no  consideration:  "  Mr.  A.,  charge  B.'s  ac- 
count to  us.  C.  D."  State  v.  Humphreys, 
10  Humph.  442. 

61.  An  order  as  follows;  "Messrs.  D.  & 
D.,  please  to  let  the  bearer  trade  ten  dollars 
out  of  your  store  and  oblige,  yours,  &c.," 
was  held  a  forgery  within  the  statute  of  Con- 
necticut.    State  v.  Cooper,  5  Conn.  260. 

62.  In  North  Carolina,  to  sustain  an  in- 
dictment for  forging  an  order  to  deliver 
goods,  there  must  have  been  a  drawer,  a 
drawee  who  was  bound  to  deliver  the  goods, 
and  a  person  to  whom  the  goods  were  to  be 
delivered.     State  v.  Lamb,  65  N.  C.  419. 

63.  In  South  Carolina,  a  forged  note  for 
the  delivery  of  goods  was  held  to  be  within 
the  act  of  1736,  although  it  was  in  the  form 
of  a  request,  and  did  not  pretend  that  the 
person  whose  name  was  forged  had  a  right 
to  make  such  an  order,  or  that  the  person 
to  whom  it  was  directed  was  bound  to  obey 
it.     State  V.  Holley,  1  Brev.  35. 

84.  In  Virginia,  on  the  trial  of  an  indict- 
ment for  passing  the  counterfeit  check,  or 
order  of  a  president  of  a  branch  of  the 
United  States  bank,  on  the  cashier  of  the 
bank,  payable  to  A.,  or  order,  and  indorsed 
by  A.  to  bearer,  it  was  held  that  whether  or 
not  the  charter  of  the  Bank  of  the  United 
States  was  constitutional,  and  whether  or 
not  the  charter  authorized  the  issue  of  such 
checks  or  orders,  the  offense  was  felony 
within  the  meaning  of  the  statute  (1  Rev, 
Code,  c,  154,  §  4).  Henilrick's  case,  8  Leigh, 
707. 

65.  In  Illinois,  under  the  73d  section  of 
the  Criminal  Code,  counterfeiting  the  drafts 
of  canal  commissioners  is  forgery;  and  so 
likewise  is  (under  the  77th  section),  the 
passing  of  counterfeit  checks  or  drafts  of 
the     commissioners,     with     an     intent     to 


defraud  any  person  or  body  politic  or 
corporate,  knowing  the  same  to  be  false  and 
counterfeited.     Crafts  v.  State,  2  Scam.  442. 

66.  Passing  a  counterfeit  United  States 
treasury  note  as  genuine,  knowing  it  to  be 
false,  is  an  indictable  cheat  at  common  law. 
In  re  Truman,  44  Mo.  181. 

67.  Indorsements.  In  New  York,  the 
uttering  and  publishing  of  a  promissory  note 
with  forged  indorsements  upon  it,  was  held 
forgery  within  the  statute,  although  the 
passing  of  the  note  was  accompanied  with 
communications  which  would  have  exoner- 
ated the  indorsers,  if  the  indorsements  had 
been  genuine.  People  v.  Rathbuu,  21 
Wend.  509. 

68.  The  forgery  of  an  indorsement  of  a 
promissory  note,  is  within  the  prohibition 
of  the  crimes  act  of  Ohio.  Poage  v.  State, 
3  Ohio,  N.  S.  229. 

69.  An  indorsement  on  a  note,  of  a  partial 
payment  by  the  maker,  without  signature, 
in  the  presence  and  by  the  direction  of  the 
payee,  is  a  receipt,  the  alteration  of  which 
by  the  payee  is  forgery.  Kegg  v.  State,  10 
Ohio,  75. 

70.  Erasing  or  obliterating  a  release  or 
acquittance  on  the  back  of  a  note  or  bond 
is  not  forgery  under  the  statute  of  North 
Carolina.  State  v.  Thornburgh,  6  Ired.  79. 
And  in  Arkansas,  it  was  held  that  erasing 
an  indorsement  from  a  promissory  note,  was 
not  forgery  but  only  a  misdemeanor.  State 
v.  McLean,  1  Ark.  311. 

3.  Indictment. 

71.  Must  show  the  forgery  of  a  valid 
instrument.  The  indictment  must  show 
the  forgery  of  an  instrument  which  appears 
on  its  face  naturally  calculated  to  iiave 
some  effect,  or,  if  it  be  not  sufficient  for 
that  purpose,  extrinsic  matter  must  be 
averred  so  that  the  court  may  judicially 
see  its  fraudulent  tendency.  Reed  v.  State, 
28  Ind,  396.  It  is  sufficient,  if  it  ajjpears 
on  the  face  of  the  indictment,  by  proper 
averments,  that  the  instrument  forged  is  of 
the  kind  prohibited  by  statute,  or  if  it  can 
be  collected  from  the  forged  writing  as  set 
out  in  the  indictment.     Com.  v.  Castles,  9 


FORGERY   AND   COUNTERFEITING, 


2oa 


Indictment. 


Gray,  123;  State   v.   Wheeler,  19  Min.  98; 
s.  c.  1  Green's  Crim.  Reps.  541. 

72.  An  indictment  for  forging  a  judge's 
certificate  to  a  fee  bill  is  good,  which  alleges 
that  the  defendant  forged  the  certificate  and 
"  caused  and  procured  the  same  to  be 
forged,"  and  that  the  forged  instrument 
purported  to  be  the  certificate  of  "  A.,  judge 
of  the  ninth  judicial  circuit,"  without  alleg- 
ing that  A.  was  judge  of  that  circuit.  But 
if  the  indictment  omit  to  state  in  what 
county  or  circuit  the  fee  bill  accrued,  it 
will  be  fatally  defective.  State  v.  Maupin, 
57  Mo.  205. 

73.  Need  not  allege  validity  of  instru- 
ment. An  indictment  for  forgery  need  not 
charge  the  legal  validity  of  the  instrument, 
unless  from  its  terms  it  may  or  may  not  be 
valid.     State  v.  Dourdon,  2  Dev.  443. 

74.  An  indictment  which  charges  that  the 
defendant  falsely,  fraudulently  and  felo- 
niously forged  and  counterfeited  a  certain 
deed,  purporting  to  be  the  act  of  one  T.  K., 
by  which  a  right  or  interest  in  real  property 
purported  to  be  transferred  and  conveyed, 
is  sufficient  without  alleging  that  the  in- 
strument was  under  seal.  Paige  v.  People, 
6  Parker,  683. 

75.  An  indictment  for  transmitting  forged 
papers  to  the  pension  office,  in  support  of  a 
claim  for  bounty  land,  need  not  show  that 
the  papers  contained  all  the  facts  necessary 
to  entitle  the  party  to  the  bounty  land. 
U.  S.  V.  Wilcox,  4  Blatch.  385. 

76.  Instrument  need  not  be  named. 
The  indictment  need  not  give  the  instru- 
ments forged  a  name,  their  character  being 
sufficiently  shown  by  the  copies  set  out. 
U.  S.  V.  Trout,  4  Bis.  105  ;  U.  S.  v.  Williams, 
lb.  302.  Charging  that  the  accused  falsely 
made,  forged,  and  counterfeited  an  instru- 
ment within  the  statute,  with  intent  to 
defraud,  setting  forth  tlie  instrument  in  licec 
verha  is  a  suflicient  description  of  the  cir- 
cumstances constituting  the  oftense.  Rose- 
krans  v.  People,  5  N.  Y.  Supm.  N.  S.  4G7. 

77.  Instrument  should  be  set  out.  An 
indictment  lor  forgery  should  set  out  the 
instrument  alleged  to  have  been  forged,  if 
in  existence  and  under  the  control  of  the 
jirosecutor,  or  state  the  reason  for  the  omis- 


sion. Hooper  v.  State,  8  Humph.  93;  State 
V.  Parker,  1  Chip.  298;  Coxdale  v.  State,  1 
Head,  139  ;  State  v.  Jones,  1  McMuUan,  236 ; 
U.  S.  V.  Britton,  2  Mason,  464;  People  v. 
Kingsley,  2  Cow.  522;  State  v.  Potts,  4 
Halst.  26 ;  State  v.  Bonney,  34  Maine,  223 ; 
State  V.  Witham,  47  lb.  165.  Where  a  gen- 
uine instrument  is  altered,  the  forgery  may 
be  charged  as  constituted  by  the  alteration, 
or  the  forgery  of  the  entire  instrument  may 
be  charged.  State  v.  Weaver,  13  Ired.  491. 
In  such  case,  the  indictment  should  recite 
the  instrument  in  its  altered  state,  according 
to  its  tenor,  in  words  and  figures.  State  v. 
Bryant,  17  New  Hamp.  323. 

78.  Where  an  indictment  for  forgery  al- 
leges that  the  writing  is  "  in  the  words  and 
figures  following,"  a  strict  recital  is  neces- 
sary. Com.  V.  Bailey,  1  Mass.  62;  Com.  v. 
Stevens,  lb.  203.  AVhere  the  indictment,  in 
setting  out  the  instrument,  alleged  that  it 
was  of  the  "purport  and  efi"ect  following," 
instead  of  using  the  word  "  tenor,"  it  was 
held  suflacient.  State  v.  Johnson,  26  Iowa, 
407. 

79.  An  indictment  for  the  possession  of 
forged  United  States  treasury  notes  and 
postal  currency,  with  intent  to  pass  them, 
must  set  out  exact  copies  of  them,  or  state 
some  good  reason  for  not  doing  so ;  and  the 
number  of  the  forged  notes  should  be  men- 
tioned.    U.  S.  V.  Fisler,  4  Bis.  59. 

80.  Where  an  indictment  for  having  in 
possession  counterfeit  bank  bills,  with  in- 
tent to  defraud,  described  them  as  thirteen 
false,  &c.,  bank  bills,  numbered  1566,  1559, 
1570,  purporting  to  have  been  issued  by  a 
corporation  duly  authorized  for  that  pur- 
pose by  the  State  of  Illinois,  to  wit :  Pur- 
porting to  be  bank  bills  of  the  Bank  of 
Belleville,  State  of  Illinois,  each  of  said 
bank  bills  of  the  denomination  of  two  dol- 
lars, it  was  held  not  suiRcient.  State  v. 
Callendine,  8  Iowa,  288. 

81.  An  indictment  is  not  sufficient  which 
alleges  that  the  defendant  forged  a  certain 
writing  purporting  to  be  a  bond  with  a 
condition  thereto  annexed,  signed,  sealed, 
and  executed  by  A.,  B.  and  C,  and  dated 
Jan.  8th,  1853,  with  intent  to  injure  and 
defraud  the  said  A.,  B.  and  C,  and  averring 


204 


FOEGERY  AND   COUNTERFEITING. 


Indictment. 


that  the  bond  could  not  be  more  particularly 
described,  because  it  was  in  the  possession 
■of  the  defendant.  State  v.  Briggs,  34  Vt. 
501. 

82.  Foreign  language.  Although  where 
an  instrument  alleged  to  have  been  forged, 
is  written  in  a  foreign  language,  it  is  better 
to  set  out  the  instrument  in  the  indictment 
in  the  language  in  which  it  is  written,  yet  it 
is  sufficient  to  set  out  a  correct  translation 
of  it.  People  v.  Ah  Woo,  28  Cal.  205.  If 
set  out  in  full,  a  technical  designation  of  its 
legal  character  is  immaterial.     lb. 

83.  Promissory  note.  An  indictment 
■charging  the  forgery  of  a  promissory  note 
payable  to  the  maker's  own  order,  must 
allege  that  the  note  was  indorsed  by  the 
maker.     Com.  v.  Dallinger,  118  Mass.  439. 

84.  The  indictment  will  be  sufficient, 
-although  it  does  not  allege  that  the  note 
purported  to  be  signed  by  the  person  whose 
name  was  forged,  if  it  set  forth  the  note, 
giving  the  name  of  the  maker  as  part  of  the 
description.  People  v.  Badgley,  16  Wend. 
53. 

85.  Indorsements  on  note.  An  indict- 
ment for  forging  a  promissory  note  need  not 
allude  to  the  indorsement  of  the  note,  though 
it  be  forged,  it  being  no  part  of  the  note. 
Com.  V.  Ward,  2  Mass.  397 ;  Buckland's  Case, 
8  Leigh,  732;  Perkins  v.  Com.  7  Gratt.  651 ; 
Hess  V.  State,  5  Ohio,  5 ;  Miller  v.  People,  52 
N.  Y.  304. 

86.  An  indictment  which  charges  the 
forgery  of  a  person's  name  as  an  indorse- 
ment will  be  good,  although  the  simulated 
liability  be  not  of  technical  indorser.  Powell 
V.  Com.  11  Gratt.  822. 

87.  An  indictment  charging  that  the  de- 
fendant forged  an  indorsement  upon  a 
promissory  note  is  good,  although  the  writ- 
ing became  a  promissory  note  only  by 
means  of  such  indorsement ;  the  allegation 
being  taken  to  have  reference  to  the  charac- 
ter of  the  instrument  when  indorsed.  Com. 
V.  Dallinger,  118  Mass.  439. 

88.  Bond.  An  indictment  is  good  which 
charges  the  forging  of  a  "  a  certain  bond,"  in- 
stead of  a  certain  paper  writing  purporting 
to  be  a  bond.     State  v.  Gardiner,  1  Ired.  27. 

89.  Deed.      An    indictment    sufficiently 


charges  the  uttering  and  publishing  of  a 
forged  deed  by  alleging  that  the  defendant 
caused  it  to  be  recorded  in  the  office  of  the 
clerk  of  the  county  as  genuine  and  true. 
And  the  same  as  to  the  setting  up  of  the 
forged  instrument  as  genuine  and  true  in  a 
suit  in  which  the  prisoner  was  plaintiff,  and 
the  party  intended  to  be  defrauded  was 
defendant.     Paige  v.  Peojole,  6  Parker,  683. 

90.  Mortgage.  An  indictment  charging 
the  forgery  or  alteration  of  a  mortgage, with 
intent  to  defraud  the  mortgagor,  must  allege 
that  there  are  in  fact  such  lands  as  are  de- 
scribed in  the  instrument,  and  that  the 
mortgagor  had  an  interest  or  light  in  the 
same.     People  v.  Wright,  9  Wend.  193. 

91.  Bank  bills.  An  indictment  for  utter- 
ing a  counterfeit  bank  bill  may  describe  the 
bill  as  a  promissory  note.  Com.  v.  Carey, 
2  Pick.  47.  In  Virginia,  under  the  statute 
of  1799,  a  forged  bank  note  of  another 
State  may  be  described  as  a  promissory  note 
for  the  payment  of  money.  Com.  v.  Hens- 
ley,  2  Va.  Cas.  149. 

92.  An  indictment  for  passing  counterfeit 
bank  notes  is  good  which  describes  them  as 
"  forged  and  counterfeit,"  those  words  being 
synonymous,  and  it  is  proper  to  describe 
them  as  promissory  notes.  Hobbs  v.  State, 
9  Mo.  845  ;  Brown  v.  Com.  8  Mass.  59. 

93.  An  indictment  for  offering  a  counter- 
feit bank  bill  need  only  set  out  the  material 
parts  of  the  bill,  and  allege  that  the  bank  is 
established  at  a  place  wnthin  the  United 
States,  without  stating  the  county  or  State 
within  which  it  is  situated.  State  v.  Carr, 
5  N.  H.  367. 

94.  It  is  not  a  valid  objection  to  an  in- 
dictment for  forgery,  that  the  last  of  the  five 
notes  described  is  alleged  to  be  different 
from  the  others,  while  in  its  recital  it  cor- 
responds with  two  of  those  previously 
described ;  the  fact  that  it  is  another  and 
different  bank  bill,  though  of  similar  form 
with  the  preceding,  satisfying  the  terms  of 
the  allegation.  Com.  v.  Thomas,  10  Gray, 
483. 

95.  An  indictment  for  forging  bank  bills, 
with  intent  to  pass  the  same  as  true  and 
genuine,  need  not  allege  that  the  bills  are 


FOEGERY   AND   COUNTERFEITING. 


20;> 


Indictment. 


for  the  payment  of  money.     Townsend  v. 
People,  3  Scam.  32G. 

96.  In  Alabama,  an  indictment  which 
charges  the  forging  or  counterfeiting  of  "an 
instrument  purporting  to  be  a  bank  bill  for 
fifty  dollars,  purporting  to  be  issued  by  the 
Georgia  Railroad  and  Banking  Company,  an 
incorporated  bank  of  the  State  of  Georgia," 
is  sufficient  under  the  statute.  Johnson  v. 
State,  35  Ala.  370. 

97.  The  first  count  of  an  indictment 
charged  the  defendant  with  having  in  his 
possession  counterfeit  blanks  in  the  form 
and  similitude  of  bank  bills  made  for  the 
payment  of  money.  The  second  count 
charged  that  they  were  in  the  form  and  simil- 
itude for  the  payment  of  property.  Held 
but  a  different  description  of  the  same 
offense,  the  bills  being  each  for  the  payment 
five  dollars,  or  its  equivalent  in  currency; 
and  that  there  was  nothing  repugnant  in 
stating  that  the  unfinished  bills  had  the  form 
and  similitude  of  those  that  were  finished. 
People  V.  Ah  Sam,  41  Cal.  645. 

98.  In  New  York,  an  indictment  for  having 
in  possession  a  counterfeit  bank  note,  with 
the  intention  of  passing  it,  need  not  set 
forth  the  note,  or  state  why  it  was  not  done. 
Tomlinson  v.  People,  5  Parker,  313.  The 
contrary  was  held  in  Massachusetts,  under 
the  statute  of  that  State  (ch.  120,  §  2).  Com. 
v.  Houghton,  8  Mass.  107. 

99.  In  Alabama,  in  an  indictment  for  the 
forgery  of  a  counterfeit  bank  bill  under  the 
Code  (§  3154),  it  is  not  necessary  to  allege 
that  the  bank  bill  was  issued  to  circulate  as 
money,  or  to  set  out  the  bill  according  to  its 
tenor.     Bostick  v.  State,  24  Ala.  266. 

100.  An  indictment  for  having  counter- 
feit bank  notes  in  possession,  and  for  selling 
them,  need  not  allege  that  the  sale  was  for 
a  consideration,  or  to  the  injury  of  any  one, 
or  that  the  notes  were  indorsed.  Iless  v. 
State,  5  Ohio,  5. 

101.  Where,  in  an  indictment  for  forging 
bank  notes,  the  notes  were  attached  to  the 
indictment  instead  of  being  set  forth  in  it, 
it  was  iield  that  the  irregularity  was  cured 
after  verdict  by  the  statute  of  jeofails.  Com. 
v.  Ervin,  2  Va.  Cas.  337. 

102.  Marginal  emblems.    An  indictment 


for  uttering  as  true,  a  counterfeit  bank  bill, 
need  not  describe  the  number  and  check 
letter,  or  the  words  and  figures  in  the  margin. 
Com.  V.  Bailey,  1  Mass.  62 ;  Com.  v.  Stevens, 
lb.  203 ;  State  v.  Carr,  5  New  Hamp.  367 ; 
People  V.  Franklin,  3  Johns.  Cas.  299;  Com. 
V.  Taylor,  5  Cush.  605;  State  v.  Flye,  2G 
Maine,  312;  Hampton  v.  State,  8  Ind.  336. 

103.  On  a  trial  for  passing  a  counterfeit 
bank  bill,  the  bill  given  in  evidence  was 
objected  to  on  ihe  ground  that  it  contained 
the  word  "three"  six  times  on  the  margin 
at  the  top  of  the  bill,  and  also  on  the  same 
bill  close  upon  the  margin,  the  words  and 
figures  "Capital  stock  $100,000,  secured  by 
pledge  of  $100,000  Pennsylvania  6  per  cent, 
bonds,"  which  was  omitted  in  the  descrip- 
tion of  the  bill  in  the  indictment.  Held 
that  there  was  no  variance.  State  v. Wheeler, 
35  Vt.  261. 

104.  But  where  an  indictment  for  uttering^ 
and  publishing  as  true,  with  intent  to  de- 
fraud, a  counterfeit  bank  bill,  omitted  the 
words  "  State  of  Maine "  in  the  upper 
margin  of  the  bill,  it  was  held  that  the 
variance  was  fatal.  Com.  v.  Wilson,  2  Gray, 
70. 

105.  In  setting  out  a  copy  of  a  forged 
bank  bill  in  an  indictment,  it  is  not  im- 
proper to  include  the  names  and  place  of 
residence  of  the  engravers  as  the  same 
appear  upon  the  margin  of  the  bill.  Thomp- 
son V.  State,  9  Ohio,  N.  S.  354. 

108.  Existence  of  bank.  Where  an  in- 
dictment for  forging  a  bank  bill  charges  a 
design  to  defraud,  the  existence  of  the  bank 
need  not  be  alleged.  Com.  v.  Carey,  2  Pick. 
47.  But  the  contrary  was  held  in  Tennessee 
as  to  an  indictment  under  the  statute  (of 
1829,  ch.  23),  for  passing  counterfeit  bank 
bills,  or  for  keeping  and  concealing  them. 
Fergus  v.  State,  6  Yerg.  345. 

107.  Incorporation  of  bank.  An  indict- 
ment for  uttering  a  counterfeit  bank  bill 
must  allege  that  the  bank  was  incorporated 
by  law.  Kennedy  v.  Com.  2  Mete.  Ky.  36 ; 
contra,  State  v.  Hart,  2  Harr.  327;  U.  S.  v. 
Williams,  4  Bis.  302. 

108.  In  Massachusetts,  it  has  been  held 
that  an  indictment  for  uttering  and  passing 
as  true  a  counterfeit  bank   bill  of  the  City 


206 


FOEGERY  AND    COUNTERFEITING. 


Indictment. 


Bank  must  allege  that  it  was  tlie  counterfeit 
of  a  bill  of  an  incorporated  banking  com- 
pany of  the  State,  and  that  the  averment 
that  the  City  Bank  was  "a  banking  com- 
pany established  by  said  commonwealth," 
is  not  sufficient.  Cora.  v.  Simonds,  11  Gray, 
306. 

103.  An  indictment  which  alleged  that 
the  defendant  feloniously  tendered  in  pay- 
ment, to  a  person  named,  an  altered  bank 
bill  "of  the  Dayton  Bank,  a  bank  created 
by  the  law  of  the  State  of  Ohio,  the  de- 
fendant then  and  there  well  knowing  the 
same  to  be  altered,  with  the  felonious  in- 
tent," etc.,  was  held  bad  for  uncertainty. 
Mount  V.  Com.  1  Duvall,  Ky.  90. 

110.  In  California,  it  has  been  held  that 
an  indictment  for  having  in  jDossession 
counterfeit  bank  bills  need  not  charge  that 
the  banking  house  whose  bills  were  imitated 
was  an  incorporated  company,  unless  the 
existence  of  the  corporation  is  made  an 
issue,  it  being  equally  an  offense  whether  the 
company  be  actually  incorporated  or  not, 
providing  it  is  acting  as  a  corporation,  and 
issues  bank  bills  which  are  current.  People 
V.  Ah  Sam,  41  Cal.  645. 

111.  In  Virginia,  an  indictment  for  pass- 
ing a  counterfeit  bank  bill  was  held  suffi- 
cient under  the  statute  (1  Rev.  Code,  ch. 
154,  §  4),  although  it  did  not  allege  that  the 
bank  was  chartered,  or  that  there  was  any 
such  bank,  or  that  the  note  was  passed  "  to 
the  prejudice  of  another's  rights,"  or  "for 
the  prisoner's  own  benefit,  or  for  the  benefit 
of  another."     Murray's  case,  5  Leigh,  730. 

112.  Non-existence  of  bank.  An  indict- 
ment under  a  statute  which  punishes  the 
fraudulent  passing  of  any  note  purporting 
to  be  a  bank  note,  when  no  such  bank  exists, 
must  charge  :  1st.  That  there  was  no  such 
bank  in  existence  as  that  by  which  such  note 
purports  to  have  been  issued.  2d.  That  the 
defendant,  at  the  time  of  the  passage  of 
such  pretended  bank  note,  knew  that  there 
was  no  such  bank  in  existence ;  and  3d.  That 
it  was  passed  with  intent  to  defraud  the 
person  to  whom  it  was  passed.  Williams  v. 
State,  9  Humph.  80. 

113.  Having  in  possession  instruments 
for    counterfeiting.     In    Arkansas,  an  in- 


dictment under  the  statute  (Dig.  p.  354,  ch. 
51,  §  3),  for  the  fraudulent  use  of  an  instru- 
ment intended  for  the  counterfeiting  of  coin, 
the  manner  of  the  use  must  be  alleged,  as 
that  the  defendant  used  it  in  making  and 
counterfeiting  certain  money  (specifying  it) 
current  in  the  State.  Bell  v.  State,  5  Eng. 
536. 

114.  In  Virginia,  where  an  indictment 
charged  that  the  prisoner  ' '  did  knowingly 
have  in  his  custody,  without  lawful  author- 
ity or  excuse,  one  die  or  instrument  for  the 
purpose  of  producing  and  impressing  the 
stamp  and  similitude  of  the  current  silver 
coin  called  a  half  dollar,"  without  otherwise 
describing  the  die  or  instrument,  was  held 
insufficient.     Scott's  case,  1  Rob.  695. 

115.  An  indictment  for  knowingly  having 
in  possession  instruments  adapted  and  de- 
signed for  making  counterfeit  coin,  to  wit, 
Mexican  dollars,  with  intent  to  use  the 
same,  need  not  state  that  the  defendant  was 
not  employed  in  the  Mint  of  the  United 
States.  Harlan  v.  People,  1  Doug.  207. 
And  the  offense  may  be  charged  to  have 
been  committed  against  the  sovereignty  of 
the  people  of  the  State  instead  of  the  United 
States.  lb. 

116.  Counterfeit  coin.  The  indictment 
need  not  allege  the  place  of  coinage,  or  the 
materials  of  which  the  false  coin  is  made. 
Com.  V.  Stearns,  10  Mete.  256 ;  State  v.  Grif- 
fin, 18  Vt.  198.  It  is  sufficient  to  describe 
the  counterfeit  coin  as  dollars,  whether  they 
be  coin  of  the  United  States,  or  of  Spain  or 
Mexico.     Peck  v.  State,  2  Humph.  78. 

117.  In  Arkansas,  an  indictment  under 
the  statute  against  passing  base  or  adulter- 
ated coin,  was  held  good,  which  charged 
that  the  defendant  passed  one  piece  of  base 
and  adulterated  coin.  Gabe  v.  State,  1 
Eng.  519. 

118.  Bank  check.  A  bank  check  may  be 
described  as  an  order  for  money,  or  as  a  bill 
of  exchange.  An  indorsement  on  a  bank 
check,  that  it  is  good  for  a  specified  sum, 
signed  by  the  cashier  or  teller,  may  be  de- 
scribed as  an  acceptance  of  an  order  or  bill. 
State  V.  Morton,  27  Vt.  310.  An  indictment 
for  forging  a  check  on  a  bank,  is  sufficient, 
although  the  drawer  of  the  forged  check 


FORGERY  AND   COUNTERFEITmO. 


207 


Indictment. 


was  a  fictitious  person.     Thompson  v.  State, 
49  Ala.  16. 

119.  Order.  An  order  for  the  payment 
of  money  drawn  by  one  in  his  own  favor  on 
himself,  and  by  himself  accepted  and  in- 
dorsed, may  be  described  as  a  bill  of  ex- 
change.    Com.  V.  Butterick,  100  Mass.  12. 

120.  An  indictment  which  describes  the 
forged  instrument  as  a  "  warrant  or  order, " 
is  not  bad  as  charging  the  oifense  disjunc- 
tively. State  V.  HoUey,  1  Brev.  35.  The 
words  warrant  and  order,  describing  the  in- 
strument forged,  are  the  same  as  warrant  or 
order.    State  v.  Jones,  1  McMullan,  336. 

121.  An  indictment  for  uttering  a  forged 
order  of  a  school  district,  purporting  to  be 
signed  by  the  clerk  and  director  of  the  dis- 
trict, and  to  be  addressed  to  the  treasurer 
of  the  district,  must  allege  that  the  forged 
order  purported  to  be  the  order  of  a  corpo- 
ration duly  authorized  to  issue  it.  Snow  v. 
State,  14  Wis.  479. 

122.  A  written  instrument  purporting  to 
be  an  order  drawn  by  "  Sister  Adeline  on 
George  Battiste,  for  nine  dollars,"  sufiicient- 
ly  describes  the  instrument  alleged  to  have 
been  forged.  McGuire  v.  State,  37  Ala.  161. 
An  indictment  alleged  the  forgery  of  a 
writing  which  purported  to  be  an  order 
drawn  by  one  Tristram  Tupper,  and  charged 
that  the  defendant  made  it  with  the  inten- 
tion to  defraud  Tristram  Tupper.  The  in- 
dictment set  out  was  signed  T.  Tupper. 
Held  that  the  variance  was  not  material. 
State  V.  Jones,  1  McMullan,  236. 

123.  County  warrant.  An  indictment  for 
altering  or  forging  a  county  warrant  is  suffi- 
cient which  alleges  that  the  defendant  false- 
ly altered  and  forged  the  warrant,  «fcc.,  in- 
tending to  defraud,  setting  forth  the  war- 
rant, without  charging,  in  the  words  of  the 
statute,  that  it  was  an  instrument  or  writing 
being,  or  purporting  to  be,  tlie  act  of  anoth- 
er, whereby  a  pecuniary  demand  or  obliga- 
tion was,  or  purported  to  be,  transferred, 
created,  &c.,  or  by  which  rights  of  property 
were,  or  purported  to  be,  transferred,  or  in 
any  manner  affected.  State  v.  Fenly,  18 
Mo.  445,  Scott,  J.,  dissentiiKj. 

124.  Power  of  attorney.  An  information 
for  uttering  a  forged  power  of  attorney  is 


sufficient,  although  it  only  charges  the  for- 
gery of  the  acknowledgment  and  cleik's 
certificate.     People  v.  Marion,  29  Mich.  31. 

125.  Party  injured.  An  indictment  for 
passing  counterfeit  money,  must  state  the 
name  of  the  person  to  whom  it  was  passed, 
with  certainty  when  known,  and  if  not 
known,  it  should  so  state.  Buckley  v.  State, 
2  Greene  (Iowa),  162.  If  the  indictment 
allege  that  counterfeit  money  was  passed  to 
persons  to  the  jury  unknown,  Avhen  the 
persons  are  known,  the  allegation  will  be 
improper,  and  ground  for  a  new  trial.  Much 
less  can  an  indictment  be  sustained  when  it 
names  the  wrong  person  to  Avhom  the  money 
was  passed.     Rouse  v.  State,  4  Ga.  136. 

126.  An  indictment  which  charged  that  a 
written  order  was  forged  and  uttered  to  de- 
fraud the  Meriden  Cutlery  Company,  was 
held  sufficient,  even  though  in  fact  there 
might  not  be  such  a  company ;  the  averment 
being  sufficiently  broad  to  reach  the  indi- 
vidual members  of  the  concern,  or  its  agent, 
or  the  persons  whose  names  were  falsely 
signed  to  the  order.  ISToakes  v.  People,  25 
N.  Y.  380;  s.  c.  5  Parker,  291. 

127.  An  indictment  for  forgery  averred 
that  the  instrument  forged  purported  to  be 
the  act  of  another,  to  wit,  of  "The  Trav- 
eler's Insurance  Company  of  Hartford,  Con- 
necticut," and  that  the  intent  was  to  defraud 
"  The  Traveler's  Insurance  Company  of  Hart- 
ford, Connecticut,  which  was  then  and  there 
a  corporation  duly  organized,"  &c.  Held 
unobjectionable,  the  artificial  person  being 
described  by  its  corporate  name,  with  the 
addition  of  the  place  in  which  it  was  cre- 
ated.    People  V.  Graham,  6  Parker,  135. 

128.  Where  the  indictment  charged  the 
defendant  with  forging  a  check,  drawn  in 
the  name  of  a  copartnership  firm,  on  the 
president  and  directors  of  the  Manhattan 
Company,  it  was  held  that  it  was  not  neces- 
sary to  allege  the  names  of  all  the  partners 
who  composed  the  copartnership  or  the 
banking  company.  People  v.  Curling,  1 
Johns.  320. 

129.  An  indictment  for  passing  and  utter- 
ing as  true  couuterfcit  coin  in  the  similitude 
of  the  coin  of  tlie  United  States,  after  nam- 
ing the  person  whom  the  prisoner  intended 


208 


FORGERY   AND   COUNTERFEITING. 


Indictment. 


to  defraud,  need  not  specify  the  name  of  the 
person  to  whom  the  coin  was  passed.  Act 
of  Afarch  3d,  1824  (4  Stat.  121).  U.  S.  v.  Be- 
jandio,  1  Wood  C.  C.  294. 

130.  Where  the  offense  consists  in  the 
fraudulent  possession  or  concealment  of  a 
thing,  it  will  be  sufficient  to  allege  that  the 
party  charged  fraudulently  possessed  or  con- 
cealed such  thing,  without  charging  or 
proving  that  any  particular  person,  corpora- 
tion, or  company,  was  intended  to  be  de- 
frauded.    Gabe  v.  State,  1  Eng.  519. 

131.  An  indictment  for  forging  an  indorse- 
ment on  a  negotiable  note  need  not  name  the 
maker  of  the  note  or  state  where  the  note 
is  payable.     Cocke  v.  Com.  13  Gratt.  750. 

132.  An  indictment  for  forging  a  receipt 
need  not  allege  that  the  person  charged  with 
the  oifense  is  indebted  to  the  individual 
against  whom  the  recei23t  is  forged.  Snell 
V.  State,  2  Humph.  347. 

133.  An  indictment  for  passing  a  counter- 
feit bank  bill  need  not  allege  that  the  person 
who  received  the  bill  knew  that  it  was  coun- 
terfeit; and  it  is  not  clear  that  the  intent  to 
defraud  must  exist  in  reference  to  such  per- 
son, and  may  not  exist  toward  third  persons. 
Wilkinson  v.  State,  10  Ind.  372. 

134.  Averment  of  time.  The  time  when 
the  coin  of  which  a  counterfeit  is  uttered 
and  published  was  current  in  the  State,  is 
material,  and  must  be  stated  in  the  indict- 
ment.    Nicholson  v.  State,  18  Ala.  529. 

135.  An  allegation  in  an  indictment  that 
the  prisoner,  on  the  fifteenth  day  of  April, 
had  in  his  possession  ten  counterfeit  bank 
bills,  knowing  them  to  be  counterfeit,  with 
the  intention  to  pass  the  same,  is  not  equiva- 
lent to  an  averment  that  he  had  them  in  his 
possession  at  one  time.  State  v.  Bonney,  34 
Maine,  223. 

136.  Where  an  indictment  alleged  that  a 
forgery  was  committed  by  the  alteration  of 
an  order  given  by  the  defendant,  but  did 
not  state  that  the  alteration  was  made  after 
it  was  circulated  and  by  him,  it  was  held  in- 
sufficient.    State  V.  Greenlee,  1  Dev.  523. 

137.  Where  a  count  in  the  indictment 
charged  the  commission  of  the  forgery  on  a 
day  after  the  trial,  it  was  held  good ;  and 
the  same  was  held  of  a  count  which  did  not 


state  in  what  part  of  the  instrument  the 
forged  words  were  placed.  Penn  v.  McKee, 
Addis.  33. 

138.  Where  an  indictment  for  forgery  al- 
leges a  single  fact  with  time  and  place,  the 
words  "  then  and  there  "  subsequently  used 
as  to  the  occurrence  of  another  fact,  refer  to 
the  same  point  of  time;  and  when  the  in- 
dictment charges  that  the  defendant  had  on 
a  day  named,  one  forged  bill,  and  then  ut- 
tered it,  and  then  knew  it  to  be  forged,  it  is 
equivalent  to  averring  one  act  of  possession, 
and  a  simultaneous  uttering  and  cfuilty 
knowledge.  Com.  v.  Butterick,  100  Mass. 
12. 

139.  Guilty  knowledge  and  intent.  An 
indictment  for  aiding  to  pass  forged  paper 
must  state  that  the  accused  knew  that  it  was 
forged.  Anderson  v.  State,  7  Ohio,  250. 
Charging  that  the  defendant  secretly  kept 
instruments  for  counterfeiting  sufficiently 
shows  a  scienter.     Sutton  v.  State,  9  lb.  133. 

140.  An  indictment  for  forgery  must  al- 
lege that  the  false  making  or  alteration  was 
with  intent  to  defraud  some  person  or  body 
corporate,  and  also  show  that  the  writing, 
if  genuine,  would  prejudice  the  person  or 
body  corporate  named.  Clarke  v.  State,  8 
Ohio,]Sr.  S.  630 ;  Com.  v.  Goodenough,Thach. 
Crim.  Cas.  132;  Com.  v.  Woodbury,  lb.  47; 
State  V.  Odel,  3  Brev.  552  ;  s.  c.  2  Const.  R. 
758.  But  the  indictment  need  not  set  out 
all  the  facts  and  circumstances  which  show 
the  intent.  People  v.  Stearns,  21  Weud. 
409. 

141.  The  indictment  need  not  allege  who 
the  party  was  that  the  defendant  intended 
to  defraud,  or  the  means  to  be  used  in  the 
commission  of  the  fraud,  or  the  object  to  be 
accomplished  by  the  same.  And  where  the 
forged  instrument  was  a  deposition  used  by 
the  prisoner  on  the  trial  of  a  libel  for  di- 
vorce, it  was  held  that  the  indictment  need 
not  contain  the  full  contents  of  the  libel  or 
petition.     State  v.  Kimball,  50  Maine,  409. 

142.  In  Massachusetts,  an  indictment  for 
having  in  possession  a  counterfeit  bank  bill 
was  held  insufficient  under  the  statute  (of 
1804,  ch.  120),  which  did  not  charge  that 
the  defendant  had  the  bill  in  his  possession 
for  the  purpose  of  rendering  the  same  cur- 


FORGERY  AND   COUNTERFEITING. 


209 


Indictment. 


rent  as  trae,  or  with  intent  to  pass  the  same, 
knowing  it  to  be  felse,  forged  and  counter- 
feit.    Com.  V.  Ailin,  Thach.  Crira.  Cas.  289. 

143.  Under  a  statute  punishing  the  having 
in  possession  counterfeit  money  "with  in- 
tent to  utter  or  pass  the  same,  or  render  the 
same  current  as  true,"  an  indictment  which 
charged  possession  "  with  intent  to  utter  and 
pass  the  same,"  omitting  the  words  "  as 
true,"  was  held  insuihcient.  People  v. 
Stewart,  4  Mich.  65G. 

144.  In  Tennessee,  an  indictment  imder 
the  statute  (of  1829,  ch.  23,  §  33)  is  sufficient 
which  charges  that  the  defendant  kept  the 
counterfeit  bank  note  with  a  ''  fraudulent " 
intent  to  pass  it,  without  alleging  that  it 
was  kept  with  a  "felonious  "  intent.  Perdue 
V.  State,  2  Humph.  494. 

145.  An  indictment  charged  the  forging 
of  a  certificate  of  the  tenor  following: 
"  Boston,  Aug.  6th,  1868.  St.  James  Hotel, 
Franklin  Square.  I  hereby  certify  that  L. 
W.  Hinds  &  Co.  have  placed  in  my  hotel  a 
card  of  advertisements,  as  per  their  agree- 
ment by  contract.  J.  P.  M.  Stetson,  Propri- 
etor," with  intent  thereby,  then  and  there, 
to  injure  and  defraud.  Held^  that,  as  the 
fraudulent  character  of  the  instrument  was 
not  manifest  on  its  face,  it  should  have  been 
made  to  appear  by  averments,  and  that,  for 
the  want  thereof,  judgment  must  be  arrested. 
Com.  V.  Hinds,  101  Mass.  209. 

146.  Where  it  was  alleged  that  H.  feloni- 
ously and  fraudulently  forged  a  certain  writ- 
ing as  follows :  "  Mr.  C. :  Charge  H.'s  account 
to  us.  A.  &  B.,"  with  intent  to  defraud  said 
A.  and  B.,  it  was  held  that  it  should  have 
been  charged  that  H.  was  indebted  to  0. 
State  V.  Humphrey,  10  Humph.  442.  But 
see  ante,  mb.  132. 

147.  Where  the  intent  in  forgery  is  de- 
scribed in  the  statute  by  different  terms 
stated  disjunctively,  it  may  be  described  in 
the  indictment  by  the  use  of  all  stated  con- 
junctively.   People  V.  Ah  Woo,  28  Cal.  205. 

148.  An  indictment  for  counterfeiting  the 
coin  of  the  United  States  under  the  act  of 
Congress  of  1825,  §20  (4  Stats,  at  Large,  121), 
need  not  charge  an  intent  to  pass  the  coin 
as  true  or  to  defraud.  U.  S.  v.  Peters,  2 
Abb.  494. 

14 


149.  Descriptive  averment.  The  words 
"  false,  forged,  and  counterfeit,"  in  an  in- 
dictment import  that  the  instrument  de- 
scribed purports  on  its  face  to  be,  but  is  not 
in  fact,  genuine.  U.  S.  v.  Howell,  11  Wall. 
432. 

150.  Immaterial  averments.  The  omis- 
sion, in  an  indictment  for  forging  a  check, 
of  the  figures  denoting  the  number  of  the 
check,  and  of  the  letter  C  written  under 
the  signature,  is  not  a  variance.  Cross  v. 
People,  47  111.  152. 

151.  An  indictment  for  having  in  posses- 
sion counterfeit  United  States  treasury 
notes  with  intent  to  pass  them,  need  not  al- 
lege that  they  were  made  in  the  resemblance 
of  the  genuine  notes.  U.  S.  v.  Trout,  4  Bis. 
105. 

152.  An  indictment  for  forgery  is  not  de- 
fective in  omitting  the  averment  that  the 
instrument  was  stamped,  where  a  stamp  is 
required.     Cross  v.  People,  47  111,  152. 

153.  An  indictment  for  forging  a  paper 
made  by  an  agent  in  the  name  of  his  prin- 
cipal need  not  aver  the  authority  of  the 
agent,  or  tliat  it  was  drawn  by  him ;  setting 
out  the  check  in  Tioec  verba  with  an  allegation 
that  it  was  made  with  intent  to  defraud  the 
party  whose  name  is  signed  to  it,  being  all 
that  is  necessary.     Cross  v.  People,  supra. 

154.  An  indictment  for  having  in  posses- 
sion instruments  used  in  counterfeiting  coin 
need  not  charge  that  the  offense  was  to  have 
been  committed  feloniously.  Miller  v.  State, 
2  Scam.  233;  Quigley  v.  People,  2  lb. 
301. 

155.  Where  an  indictment  under  a  stat- 
ute, that  any  one  should  be  deemed  guilty 
of  forgery  who  should  falsely  make,  deface, 
destroy,  alter,  &c.,  any  record,  deed,  &c.,  or 
any  other  instrument  in  writing  whatever, 
with  intention  to  defraud  any  person ; 
charged  that  the  defendant  did  the  act  un- 
lawfully and  feloniously,  omitting  the  word 
falsely,  it  was  held  sufficient.  State  v. 
Dark,  8  Black f  526. 

156.  An  indictment  against  a  justice  of 
the  peace  for  altering  a  writ  issued  by  him, 
after  service  and  before  the  return  day, 
which  did  not  charge  the  offense  as  forgery, 
was  held  bad.    Com.  v.  Mycall,  2  Mass.  136. 


210 


FOKGERY  AND   COUNTERFEITmG. 


Indictment. 


157.  An  indictment  for  forgery  need  not 
state  the  names  of  the  persons  whom  the 
prisoner  procured  to  forge  the  instrument, 
or  with  whom  he  acted,  and  who  assisted 
in  the  forgery.  Hufl'mau  v.  Com.  6  Rand. 
685. 

158.  Charging  several  acts.  Where  an 
indictment  charges  in  the  same  count  two 
distinct  oftenses,  requiring  different  punish- 
ments, as  the  forging  of  a  mortgage,  and 
receipt  indoi'sed  thereon,  the  judgment  will 
be  arrested.  People  v.  Wright,  9  Wend. 
193. 

159.  If  the  same  person  be  guilty  of  mak- 
ing a  counterfeit  check,  and  also  of  attempt- 
ing to  pass  it,  or  of  passing  it  as  true  or 
genuine,  with  the  intent  to  damage  or 
defraud  another,  he  may  be  indicted  and 
tried  for  these  connected  and  consecutive 
acts  as  constituting  one  transaction ;  or  he 
may  be  indicted  and  convicted  for  each 
distinct  offense.  People  v.  Shotwell,  37  Cal. 
394;  People  v.  Frank,  28  lb.  507. 

160.  An  indictment  which  alleges  that  the 
defendant  did  falsely  make  and  counterfeit 
a  certain  writing,  which  is  set  forth,  is  not 
bad  for  duplicity.  State  v.  Hastings,  53 
JSTew  Hamp.  453. 

161.  An  indictment  for  forgery  which 
charges  that  the  defendants  forged  and 
caused  to  be  forged,  and  aided  and  assisted 
in  forging,  is  not  bad  for  duplicity.  State 
V.  Morton,  37  Vt.  310. 

162.  The  forging  of  an  instrument,  and 
the  uttering  and  publishing  it  as  true, 
knowing  it  to  be  false,  may  be  charged  in 
the  same  indictment.  Haskins  v.  State,  11 
Ga.  93 ;  People  v.  Rynders,  13  Wend.  435. 

163.  It  is  proper  for  an  indictment  to 
charge  as  one  offense  the  having  in  posses- 
sion and  uttering  and  publishing  several 
counterfeit  bank  bills,  and  a  verdict  of 
guilty  may  be  rendered  on  the  whole 
charge  or  jaart,  according  to  the  proof  But 
when  set  forth  in  one  count,  it  is  to  be 
treated  as  one  offense.  Com.  v.  Thomas,  10 
Gray,  483. 

164.  An  indictment  which  alleges  that 
the  defendant  forged  and  counterfeited  gold 
and  silver  coin,  and  had  in  his  possession 
counterfeit  coin,  knowinsr  the  same  to   be 


false  and  counterfeited,  with  intent  to  utter 
and  pass  the  same  as  true,  is  not  bad  for 
duplicity.     State  v.  Myers,  10  Iowa,  448. 

165.  Where,  in  an  indictment  for  forgery, 
the  instrument  alleged  to  have  been  forged 
is  set  out  in  each  of  two  counts,  it  will  not 
be  presumed  that  each  is  the  same  instru- 
ment without  an  allegation  to  that  effect. 
People  V.  Shotwell,  37  Cal.  394. 

166.  Insufficient  or  improper  averments. 
Where  the  indictment  describes  the  meaning 
of  the  instrument  forged,  a  defect  will  not 
be  cured  by  reciting  the  instrument  in  ha>c 
verba.  State  v.  Bean,  19  Vt.  530.  When  the 
indictment  states  in  what  the  forgery  con- 
sisted, it  must  be  averred  truly,  and  be 
proved  as  stated.  People  v.  Marion,  38 
Mich.  355 ;  s.  c.  3  Green's  Crim.  Reps.  573. 

167.  Where  an  indictment  described  the 
instrument  forged  as  "purporting  to  be 
signed  by  the  president  and  directors,"  and 
then  set  it  out,  which  it  did  not  appear  to 
have  been  by  order  of  the  president  and 
directors — Held  that  the  repugnancy  was 
fatal.     State  v.  Shawley,  5  Hayw.  356. 

168.  An  indictment  charged  the  defend- 
ant with  forging  a  bank  check.  The  check 
which  was  set  out,  was  not  payable  to  bear- 
er, or  to  the  order  of  any  named  person.  It 
was  therefore  incomplete,  and  could  not  have 
defrauded  any  one.  Hell.,  on  demurrer,  that 
the  indictment  was  bad.  Williams  v.  State, 
51  Ga.  535. 

169.  An  indictment  averred  that  the  pris- 
oner feloniously  did  forge,  &c.,  "  a  certain 
instrument  in  writing  commonly  called  a 
certificate,- the  same  being  a  certificate  of  the 
acknowledgment,  by  one  L.,  of  a  certain 
mortgage,"  setting  forth  the  certificate.  The 
certificate,  as  thus  set  forth,  purported  to 
have  been  made  by  E ,  commissioner  of 
deeds,  but  it  had  no  venue,  and  there  was 
nothing  on  its  face  to  show  of  what  county 
or  city  of  the  State  K.  was  a  commffesioner. 
Held  bad.     Vincent  v.  People,  5  Parker,  88. 

170.  An  indictment  for  uttering  and  pass- 
ing as  true  an  uncurrent  and  worthless  bank 
bill,  "of  the  tenor  following,"  set  forth  an 
instrument  similar  to  an  ordinary  bank  bill, 
but  with  no  signature  of  any  person  as  pres- 
ident or  cashier.     It  was  then  alleged  that 


FOEGEKY  AND   COUNTERFEITING. 


211 


Indictment. 


Place  of  Trial. 


"  a  more  particular  description  of  which  said 
Lank  bill  the  said  jurors  have  not,  and  can- 
not give."  Held  that  the  indictment  veas 
insufficient.     Com.  v.  Chaney,  7  Allen,  537. 

171.  An  indictment  charged  the  forgery  of 
an  order  for  the  payment  of  money,  of  the 
tenor  following :  "M.,  C.  &C'o.  Pay  Binam 
$3  75.  J.  L.  C."  Held^  that  as  the  writing 
did  not  purport  to  be  drawn  by  or  on  any 
person,  the  indictment  was  bad  for  uncer- 
tainty.    Bynam  v.  State,  17  Ohio,  N.  S.  142. 

172.  An  indictment  charged  the  forgery 
of  an  order  for  the  delivery  of  goods,  of  the 
following  tenor:  "Dayton,  Sept.  14,  '60. 
jVIessrs.  Langdon  &  Bro.  Gents.  Let  the 
bearer  have  one  of  your  smallest  with  load, 
and  charge  to  me.  R.  Chambers."  Held 
bad  for  uncertainty.  Carberry  v.  State,  11 
Ohio,  N.  S.  410. 

173.  An  indictment  which  alleges  the 
forging  of  a  receipt  against  a  "  book  ac- 
count," is  bad  for  uncertainty.  Had  the 
charge  been  forging  an  acquittance  for 
goods,  it  would  have  been  proper.  State  v. 
Dalton,  11  Ired.  379. 

174.  Where  an  indictment  charged  tliat 
an  instrument  was  forged  in  the  name  of 
James  C.  Fogg,  the  tenor  of  which  writing 
obligatory  is  as  follows,  that  is  to  say,  &c., 
and  the  instrument  set  out  purported  on  its 
face  to  be  executed  by  Jas.  G.  Fogg  and  Jo- 
seph G.  Fogg  the  defendant — it  was  held, 
that  the  charge  in  the  indictment  was  bad 
for  repugnance.  Fogg  v.  State,  9  Yerg. 
392. 

175.  An  indictment  alleged  that  the  note 
forged  purported  to  have  been  made  by  one 
Nathaniel  Durkie,  and  then  set  out  the  note, 
from  which  it  appeared  that  the  note  was 
made  by  N.  Durkie.  Held  that  the  repug- 
nancy was  fatal.  State  v.  Houseal,  2  Brev. 
219. 

176.  Where  an  indictment  charged  the 
counterfeit  coin  to  be  in  imitation  of  coin  of 
"  the  State  of  Missouri,  called  a  Mexican 
dollar, "  it  was  held  contradictory  and  re- 
pugnant.    State  V.  Shoemaker,  7  Mo.  177. 

177.  In  Vermont,  an  allegation  in  an  in- 
dictment, that  the  coins  intended  to  be  coun- 
terfeited, "  were  current  silver  coins  of  this 
State  and  of  the  United  States,"  not  being 


equivalent  to  the  words  in  the  statute 
"  which  shall  be  made  current  by  the  laws 
of  this,  or  the  United  States, "  it  was  held, 
on  demurrer,  that  the  indictment  was  insuf- 
ficient.    State  V.  Bowman,  6  Vt.  594. 

178.  The  averment  in  an  indictment  for 
forging  coins  "  which  are  current  by  law  and 
usage  in  this  State,"  would,  by  reasonable 
intendment,  refer  to  the  time  of  presenting 
the  indictment  rather  than  to  the  time  of 
having  in  possession,  and  would  therefore 
be  bad.  unless  it  might  be  rejected  as  sur- 
plusage.    State  V.  Griffin,  18  Vt.  198. 

179.  Conclusion.  In  South  Carolina,  an 
indictment  for  counterfeiting,  which  con- 
cluded, "  contrary  to  the  statute,"  instead 
of  "  contrary  to  the  form  of  the  statute," 
was  held  fatally  defective.  State  v.  Toad- 
vine,  1  Brev.  16. 

4.  Place   of   trial. 

ISO.  For  counterfeiting  U.  S.  coin.  Al- 
though the  courts  of  the  United  States  have 
exclusive  jurisdiction  over  the  ofl^ense  of 
counterfeiting  the  United  States  coin  (Rouse 
V.  State,  4  Ga.  136),  yet  the  possession  of 
tools  designed  for  making  counterfeit  coin, 
coupled  with  the  intent  to  use  them  for  that 
pui-pose,  is  an  offense  distinct  from  the  act 
of  counterfeiting,  and  cognizable  by  the 
State  courts.  State  v.  Brown,  2  Oregon, 
221.  But  as  to  the  concurrent  jurisdiction 
of  the  State  courts,  see  Harlan  v.  People,  1 
Doug.  207;  Com.  v.  Fuller,  8  Mete.  313; 
State  V.  Butman,  1  Brev.  32 ;  Chess  v.  State, 

1  Blatchf.  198;  Hendrick's  Case,  8  Leigh, 
707. 

181.  Forgeries  against  the  laws  of  the 
United  States  must  be  tried  in  the  district 
where  they  are  committed.     U.  S.  v.  Britton, 

2  Mason,  464. 

182.  Where  the  forgery  is  in  one  coun- 
ty and  the  uttering  in  another  county.  In 
Alabama,  where  a  forgery  is  committed  in 
one  county,  and,  pursuant  to  a  fraudulent 
combination  there  between  the  prisoner  and 
the  forger,  the  forged  instrument  is  uttered 
and  published  in  another  county,  the  pris- 
oner is  an  accessory  before  the  fact  to  the 
offense  of  uttering  and  publishing  (Code  of 
Ala.  §  3526),  and  may  be  indicted  in  the 


212 


FOEGERY  AND   COUNTERFEITING. 


Evidence. 


county  in  -which  it  was  committed,  although 
all  his  acts  in  relation  to  it  were  done  in  the 
other  county.     Scully  v.  State,  39  Ala.  240. 

5.  Evidence.        y^ 

183.  Party  whose  name  is  forged  may 
be  witness.  On  a  trial  for  forgery,  the  per- 
son whose  name  is  alleged  to  have  been 
forged  may  be  a  witness  to  prove  that  fact. 
Simons  v.  State,  7  Ohio,  116;  Eesp.  v. 
Ross,  2  Yeates,  1 ;  contra,  State  v.  A.  W.  1 
Tyler,  260 ;  State  v.  Whitten,  1  Hill,  S.  C. 
100. 

184.  When  the  instrument  alleged  to  have 
been  forged  has  been  secreted  by  the  ac- 
cused, the  person  whose  name  is  charged  to 
have  been  forged,  and  who  has  seen  and 
copied  the  instrument,  may  prove  the  in- 
strument. Com.  V.  Snell,  3  Mass.  82 ;  State 
V.  Phelps,  11  Vt.  116. 

185.  A  bank  check,  in  the  name  of  B.,  was 
passed  by  C.  to  D.,  who  received  the  money 
and  sent  it  to  C,  as  his  agent.  The  check 
was  afterward  discovered  to  be  a  forgery, 
and  the  bank  got  possession  of  the  money 
before  it  reached  the  hands  of  C.  On  the 
trial  of  an  indictment  for  the  forgery,  B. 
was  held  to  be  a  competent  witness  to 
prove  the  offense.  People  v.  Howell,  4 
Johns.  296. 

186.  A  judgment  having  been  obtained 
before  a  justice  of  the  peace,  against  A.  and 
his  surety  B.,  B.  paid  a  part  of  the  judg- 
ment, and  took  the  constable's  receipt  which 
he  fraudulently  altered  so  as  to  make  the 
sum  larger.  Afterward,  A.  repaid  B. 
what  appeared  by  the  receipt  to  have  been 
paid  by  him.  Held  on  the  trial  of  an  in- 
dictment against  B.  for  the  forgery,  A.  was 
a  competent  witness.  State  v.  Bateman,  3 
Ired.  474. 

187.  Proof  must  support  charge.  Where 
a  person  or  thing  necessary  to  be  described 
in  an  indictment,  is  described  with  unneces- 
sary particularity,  all  the  circumstances  of 
the  description  must  be  proved.  People  v. 
Marion,  28  Mich.  355 ;  s.  c.  2  Green's  Crim. 
Reps.  572.  Where,  therefore,  an  indictment 
for  passing  counterfeit  bank  bills,  charged 
that  the  bank  was  "  a  corporation  duly  au- 
thorized for  that  purpose  by  the  State  of 


Massachusetts,"  it  was  held  that  the  State 
must  prove  the  fact  as  alleged.  State  v. 
Newland,  7  Iowa,  242. 

188.  An  indictment  for  forgery,  charged 
the  defendant  with  uttering,  as  trae,  to  L., 
a  false  and  forged  deed  of  a  piece  of  land, 
with  intent  to  defraud  him.  It  was  proved 
that  the  deed  was  deposited  by  the  defend- 
ant with  L.  as  an  equitable  mortgage  to 
secure  board  already  had,  and  not  the  price 
of  future  board,  and  that  the  defendant  did 
not  board,  or  at  the  time  of  the  deposit 
intend  to  board  longer  with  L.,  which  the 
latter  well  knew.  Held  that  the  indict- 
ment was  not  sustained. ,  Colvin  v.  State, 
11  Ind.  361. 

189.  An  indictment  for  forging  a  railroad 
ticket  described  the  instrument  as  "  purport- 
ing to  be  a  ticket  or  pass  issued  by,"  &c., 
"  whereby  said  corporation  promise  and  as- 
sure to  the  owner  and  holder  thereof  a 
passage  in  their  cars  over  their  railroad, 
extending,"  &c.,  and  "as  signifying  to  the 
holder  that  it  must  be  used  continually  after 
once  entering  the  cars,  without  stopping  at 
any  of  the  intermediate  places  on  the  line  of 
the  railroad  between  said,"  &c.,  "unless 
indorsed  by  the  conductor."  The  terms  and 
stipulations  of  the  ticket  proved  were: 
"  good  this  day  only,  unless  indorsed  by  the 
conductor."  Held  that  the  variance  was 
fatal.     Com.  v.  Ray,  3  Gray,  441. 

190.  In  Massachusetts,  where  an  indict- 
ment under  the  statute  (Gen.  Stats,  ch.  162, 
§  2),  alleged  that  the  defendant  uttered  and 
published  as  true,  with  intent  to  defraud,  a 
false,  forged  and  counterfeit  promissory 
note,  and  the  evidence  was  that  he  uttered 
and  published  as  true,  a  counterfeit  bank 
bill  upon  an  incorporated  banking  company 
of  the  State,  it  was  held  that  the  variance 
was  fatal.    Com.  v.  Dole,  2  Allen,  165. 

191.  Where  the  indictment  charges  the 
forging  of  an  accountable  receipt  "  for  money 
and  other  property,"  and  the  instrument 
produced  in  evidence,  though  a  receipt,  is 
not  an  accountable  receipt,  the  variance 
will  be  fatal.  Com.  v.  Lawless,  101  Mass. 
32. 

192.  An  indictment  for  forging  a  promis- 
sory note  without  a  seal,  will  not  be  sup- 


FOKGERY   AND   COUNTERFEITING. 


213 


Evidence. 


ported  by  evidence  tending  to  prove  that 
defendant  forged  a  note  under  seal.  Hart 
V.  State.  20  Ohio,  49. 

193.  An  indictment  for  the  forgery  of  an 
order  for  $48  is  not  supported  by  proof  of 
an  order  for  $49.  State  v.  Handy,  20  Maine, 
81.  "Where  a  receipt  set  out  in  an  indict- 
ment for  forgery,  purported  to  have  been 
given  to  extinguish  an  order  for  sixty  dol- 
lars, and  the  receipt  offered  in  evidence 
purported  to  extinguish  an  order  for  sixty- 
five  dollars,  it  was  held  that  the  variance 
was  fatal.     Shirley  v.  State,  1  Oregon,  269. 

194.  To  sustain  an  indictment  for  having 
ten  counterfeit  bills  in  possession,  it  must  be 
proved  not  only  that  the  accused  had  the  ten 
bills  in  his  possession  on  the  same  day,  but 
at  the  same  moment.  Edwards  v.  Com.  19 
Pick.  134. 

195.  Evidence  of  the  passing  in  payment 
of  base  metal  in  the  likeness  or  similitude  of 
gold,  will  not  support  an  indictment  which 
charges  the  passing  in  payment  "counter- 
feit gold  coin."     Rouse  v.  State,  4  Ga.  136. 

196.  Where  the  examining  court  remanded 
the  prisoner  for  trial  for  "  feloniously  using 
and  employing  as  true,  for  his  own  benefit, 
a  certain  counterfeit  note,  well  knowing  the 
same  to  be  counterfeit,"  it  was  held  that  an 
indictment  for ' '  forging  "  the  note  could  not 
be  sustained.     Page's  Case,  9  Leigh,  686. 

197.  An  indictment  for  having  in  posses- 
sion a  counterfeit  bank  note  for  the  jDuri^ose 
of  selling,  bartering,  or  disposing  of  the 
same,  is  not  sustained  by  proof  of  having  in 
possession  such  note  with  intent  to  pass  the 
same  to  an  innocent  person  as  true  and  genu- 
ine.    Hutchins  v.  State,  13  Ohio,  198. 

198.  Proof  of  part  of  charge  sufficient. 
The  averment  in  an  indictment  that  a  whole 
instrument  which  is  set  forth,  has  been 
forged,  is  satisfied  by  proof  of  a  forgery  of 
a  material  part.  Com.  v.  Butterick,  100 
Mass.  12. 

199.  An  indictment  charged  the  prisoner 
with  forging  and  uttering  as  true  a  bank 
check,  which  was  set  out  in  the  indictment, 
and  purported  to  have  been  drawn  on  the 
Bank  of  Jersey  City  ;  and  the  words  "  certi- 
fied by  Sparks,  Bank,  J.  C."  were  written 
.across  the   face  of  it.    The  only   writing 


proved  to  have  been  forged  was  these  words. 
Held  that  the  court  did  not  err  in  refusing 
to  instruct  the  jury  that,  as  the  indictment 
did  not  charge  the  forgery  of  the  certificate, 
the  prisoner  could  not  be  convicted.  Peo- 
ple v.  Clements,  26  N.  Y.  193,  Balcom,  J., 
dissenting  ;  s.  c.  5  Parker,  337. 

200.  Under  an  indictment  charging  the 
forgery  of  several  indorsements  on  a  prom- 
issory note,  it  is  not  necessary  to  prove  that 
all  of  the  indorsements  are  forgeries.  Peo- 
ple V.  Rathbun,  21  Wend.  509. 

201.  A  trifling  variance  not  regarded. 
Although  the  description  set  forth  in  an 
indictment  for  uttering  a  forged  instrument 
must  conform  to  the  instrument  given  in 
evidence,  yet  variances  which  are  merely 
literal,  and  leave  the  sound  and  sense  in 
substance  the  same,  are  not  deemed  material 
within  the  rule.  Butler  v.  State,  22  Ala.  43 ; 
U.  S.  V.  Hinman,  1  Bald.  292 ;  Com.  v.  Whit- 
man, 4  Pick.  233. 

202.  On  the  trial  of  an  indictment  for 
forging  a  promissory  note,  it  need  not  be 
proved  that  pictures  or  devices  were  made 
in  imitation  of  those  used  in  the  genuine 
note  for  ornament  or  distinction.  Such 
pictures,  ornaments,  and  devices,  though 
they  form  parts  of  a  bank  plate,  are  no  part 
of  the  instrument  or  contract  impressed  by 
it.  The  operative  words  must  resemble 
and  conform  to  the  similar  parts  of  the  gen- 
uine instrument ;  but  this  resemblance  and 
conformity  is  not  exact  similitude  of  ap- 
pearance and  position.  People  v.  Osmer,  4 
Parker,  242.  Abbreviations  in  the  seal 
which  do  not  form  a  complete  word  may 
be  disregarded.  U.  S.  v.  Mason,  12  Blatchf. 
497. 

203.  An  indictment  for  passing  a  forged 
promissory  note  as  true,  purporting  to  be 
made  by  A.  payable  to  B.  or  order,  is  sup- 
ported by  proof  of  the  uttering  of  such 
note  with  the  indorsement  of  B.'s  name  on 
the  back.     Com.  v.  Adams,  7  Mete.  50. 

204.  In  Massachusetts,  an  indictment  un- 
der the  statute  (R.  S.  ch.  127)  charged  that 
the  defendant  "  had  in  his  possession  a 
piece  of  false  and  counterfeit  coin,  counter- 
feited in  the  similitude  of  the  good  and 
legal   silver  coin  current   in  this  common- 


214 


FORGEEY  AND   COUNTERFEITING. 


Evidence. 


■wealth,  by  the  laws  and  usages  thereof, 
called  a  dollar,  with  intent  to  pass  the  same 
as  true,  knowing  the  same  to  be  false  and 
counterfeit."  Held^  supjiorted  by  proof  that 
the  defendant  had  in  his  possession  a  coin 
counterfeited  in  the  similitude  of  a  Mexican 
dollar,  Tvith  such  intent  and  knowledge. 
Com.  V.  Stearns,  10  Mete.  256. 

205.  An  indictment  for  forgery  described 
a  bank  bill  "of  the  tenor  following,"  pur- 
porting to  be  signed  by  C.  R.  Drown, 
'•  cashier,"  whereas  the  bill  offered  in  evi- 
dence purported  to  be  signed  by  C.  R. 
Drown,  "  cash."  Whether  the  variance  was 
fatal — query.  In  the  same  indictment  the 
name  of  the  cashier  was  stated  to  be 
Broun  ;  whereas,  on  the  bank  bill,  it  was 
Brown.  Held  immaterial.  Com.  v.  Woods, 
10  Gray,  477.  And  see  State  v.  Wheeler,  34 
Vt.  261. 

206.  Where,  on  the  trial  of  an  indictment 
for  passing  a  counterfeit  bank  bill,  there  was 
a  variance  as  to  the  signature  of  the  bill 
between  the  note  set  out  and  that  given  in 
evidence,  and  it  appeared,  that  the  came 
was  illegible,  and  that  the  discrepancy 
arose  from  the  attempt  to  make  a  precise 
imitation  of  the  name,  it  was  held  that  the 
variance  was  not  material.  Mathena  v. 
State,  20  Ark.  70. 

207.  Where  an  indictment  for  forgery 
alleged  that  an  order  was  drawn  upon  the 
"president,  directors,  and.  company  of  the 
Bank  of  V.,"  and  it  was  proved  that  the 
order  was  drawn  upon  the  "Bank  of  V.," 
it  was  held  that  the  variance  was  not  mate- 
rial.    State  V.  Morton,  27  Vt.  310. 

208.  Under  an  indictment  alleging  that 
the  defendant  had  a  counterfeit  bank  bill  at 
Boston,  "  with  intent  then  and  there  to 
utter  and  pass  the  same,"  it  may  be  j^roved 
that  he  had  it  with  such  an  intent  at  a  place 
out  of  the  State,  it  being  immaterial  where 
the  defendant  intended  to  pass  the  bill. 
Com.  V.  Price,  10  Gray,  472. 

209.  In  Vermont,  under  a  statute  impos- 
ing a  penalty  for  having  in  possession  any 
mould,  jiattern,  die,  &c.,  adapted  or  de- 
signed for  coining,  it  is  sufficient  to  prove 
that  the  defendant  had  in  his  possession  half 
of  a  mould.    State  v.  Griffin,  18  Vt.  198. 


210.  Where  an  indictment  for  forgery  de- 
scribed the  note  according  to  its  purport 
and  effect,  and  not  according  to  its  tenor,  a 
variance  in  the  word  "promised"  and 
"promise"  is  not  material.  Coin  v.  Par- 
menter,  5  Pick.  279. 

211.  The  averment  in  an  indictment  for 
forgery,  of  an  intent  to  defraud  an  indi- 
vidual, is  sustained  by  proof  of  an  intent  to 
defraud  a  firm  of  which  such  individual 
is  a  member.  State  v.  Hastings,  53  New 
Hamp.  452:  Stoughton  v.State,  2  Ohio,  562. 

212.  Where  an  indictment  charged  the 
prisoner  with  having  forged  and  counter- 
feited a  certain  order  for  the  payment  of 
money,  purjjorting  to  be  made  and  drawn 
by  A.  and  B.,  selectmen  of  the  town  of  C, 
it  was  held  unnecessary  to  prove  that  those 
men  were  in  fact  selectmen  of  the  town. 
State  V.  Flye,  26  Maine,  312. 

213.  Must  be  confined  to  the  issue.  On 
the  tiial  of  an  indictment  for  forging  and 
uttering  a  deposition  used  by  the  accused 
in  an  action  for  divorce  brought  by  him,  it 
is  not  error  in  the  court  to  refuse  to  allow 
him,  on  cross-examination  of  the  person 
whose  signature  to  the  deposition  is  alleged 
to  be  forged,  to  show  that  the  facts  stated 
in  the  deposition  are  true.  State  v.  Kimball, 
50  Maine,  409,  Kent,  J.,  dissenting.  But 
on  a  trial  for  forging  a  mortgage,  it  was 
held  competent  for  the  prosecution  to  show 
that  a  deed  which  was  given  in  evidence  by 
the  jDrisoner,  in  a  suit  in  chancery  relating 
to  the  mortgage,  liad  been  altered  so  as  to 
make  it  correspond  with  the  mortgage.. 
Perkins  v.  People,  27  Mich.  386 ;  s.  c.  2 
Green's  Crim.  Reps.  567. 

214.  Instrument  must  be  produced.  The 
instrument  alleged  to  be  forged  must  be 
produced,  or  its  absence  accounted  for. 
Manaway  v.  State,  44  Ala.  375 ;  Com.  v. 
Hutchinson,  1  Mass.  7.  On  the  trial  of  an. 
information  for  passing  counterfeit  money, 
the  money  must  be  produced  in  court,  before 
evidence  is  given  of  its  being  counterfeit. 
State  V.  Osborn,  1  Root,  152;  State  v. 
Bloget,  lb.  534.  But  proof  that  the  de- 
fendant admitted  the  crime,  or  destroyed 
the  money,  will  excuse  its  non- production. 
State  V.  Ford,  2  lb.  93. 


FORGERY  AND   COUNTERFEITING. 


215 


Evidence. 


215.  Under  an  indictment  for  passing  a 
counterfeit  bank  bill,  to  render  admissible 
evidence  that  the  defendant  had  passed 
other  counterfeit  bills  of  the  same  denomina- 
tion, those  bills  should  be  produced  in  court, 
or,  if  in  the  possession  of  the  defendant, 
he  should  have  had  notice  to  produce  them. 
State  V.  Cole,  19  Wis.  129. 

216.  Existence  of  bank.  On  the  trial  of 
an  indictment  for  forging  a  bank  bill,  the 
existence  of  the  bank  need  not  be  proved, 
unless  it  is  charged  that  the  prisoner  intended 
to  defraud  the  bank.  Com.  v.  Smith,  6 
Serg.  &  Rawle,  568 ;  McCartney  v.  State,  3 
Ind.  35R ;  People  v.  Peabody,  25  Wend. 
473.  And  when  the  indictment  charges  that 
the  instrument  forged  purported  to  be  drawn 
on  a  bank,  the  existence  of  the  bank  need  not 
be  proved.     State  v.  Pierce,  8  Iowa,  231. 

217.  On  the  trial  of  an  indictment  for  the 
forgery  of  a  bank  note,  purporting  to  have 
been  issued  by  a  certain  banking  association, 
it  may  be  proved  by  parol  that  there  is 
such  an  institution  in  existence,  doing  busi- 
ness in  the  State,  without  offering  in  evi- 
dence the  articles  of  association  under  which 
such  bank  was  organized.  Dennis  v.  People, 
1  Parker,  469;  People  v.  Chadwick,  2  lb. 
163;  Reed  v.  State,  15  Ohio,  217;  State  v. 
Cleaveland,  6  Nev.  181. 

218.  Where  on  a  trial  for  passing  counter- 
feit bank  bills,  the  bank  officers  cannot  be 
produced,  the  next  best  evidence  is  that  of 
persons  who  know  of  the  existence  of  the 
bank,  and  the  character  of  the  bills.  Com. 
V.  Riley,  Thach.  Crim.  Cas.  67;  State  v. 
Stalmaker,  2  Brev.  1. 

219.  On  the  trial  of  an  indictment  for 
passing  the  counterfeit  bank  bills  of  a  bank 
in  another  State,  the  incorporation  of  the 
bank  may  be  proved  by  a  copy  of  the  act 
of  incorporation,  duly  certified,  or  by  the 
production  of  a  sworn  copy.  Stone  v.  State, 
1  Spencer,  401 ;  or  by  the  statutes  in  which 
the  charter  is  printed.  Jones  v.  State,  5 
Sneed,  346. 

220.  An  indictment  for  having  in  posses- 
sion, with  intent  to  utter,  counterfeit  bank 
bills,  knowing  the  same  to  be  false,  which 
alleges  that  the  bills  purported  to  be  issued 
by  the  "president,  directors,  and  company 


of"  an  incorporated  banking  company  duly 
established  in  another  State,  is  supported 
by  proof  that  the  bills  were  issued  by  an 
association  formed  there  under  a  general 
banking  act  of  the  United  States.  Com.  v. 
Hall,  97  Mass.  570.  See  Com.  v.  Tenney,  lb. 
50. 

221.  On  the  trial  of  an  indictment  for 
having  in  possession  the  false  and  counter- 
feit bills  of  a  foreign  bank,  with  intent  to 
pass  the  same,  the  prosecution  is  not  bound 
to  prove  it  to  be  an  incorporated  bank. 
Sasser  v.  State,  13  Ohio,  453;  People  v. 
Davis,  21  Wend.  309. 

222.  Name  of  bank.  Where  although 
in  an  indictment  for  having  in  possession 
counterfeit  bank  bills,  with  intent  to  pass 
the  same,  the  bills  need  not  be  described, 
yet  if  it  be  alleged  that  they  are  the  bills 
of  certain  named  banks,  they  must  be  proved 
as  laid.     Clark  v.  Com.  16  B.  Mon.  206. 

223.  Where  the  indictment  charged  the 
counterfeiting  a  bill  of  an  incorporated  bank, 
incorporated  by  the  name  of  ''  The  President 
and  Directors  of  the  Bank  of  South  Carolina," 
and  the  bill  proved  was  of  "The  Bank  of 
South  Carolina,"  it  was  held  that  the  vari- 
ance was  fatal.     State  v.  Waters,  3  Brev.  507. 

224.  President  of  bank.  On  the  trial  ot 
an  information  for  uttering  and  passing  a 
counterfeit  bill,  it  was  held  that  parol  evi- 
dence was  admissible  to  show  that  the  jjer- 
son  whose  name  appeared  on  such  bill  as 
president  was  president  of  the  bank  by 
which  the  same  purported  to  be  issued. 
State  V.  Smith,  5  Day,  175. 

225.  Counterfeit  bank  bills.  On  the 
trial  of  an  indictment  for  passing  counter- 
feit money,  the  court  may  permit  experts  to 
testify  to  the  false  character  of  the  bills,  with- 
out requiring  proof  that  there  was  a  bank  in 
existence  issuing  genuine  bills,  of  which 
those  in  question  might  be  counterfeits. 
Jones  V.  State,  11  Ind.  357;  U.  S.  v.  Foye,  1 
Curtis,  364. 

226.  On  the  trial  of  an  indictment  for 
passing  counterfeit  bank  bills,  it  is  not  nec- 
essary to  prove  that  they  are  counterfeit  by 
an  officer  of  the  bank.  Martin's  Case,  2 
Leigh,  745.  And  see  Foulker's  Case,  2  Rob. 
836. 


216 


FOEGERY  AND   COUNTERFEITING. 


Evidence. 


227.  Exports  who  never  saw  the  officers 
of  ii  bank  write  are  competeut  witnesses  to 
prove  the  note  counterfeit.  Farrington  v. 
State,  10  Ohio,  354;  May  v.  State,  14  lb. 
40)  1. 

228.  On  the  trial  of  an  indictment  for 
passing  counterfeit  bills  of  a  bank  out  of  the 
State,  the  testimony  of  a  person  who  was 
acquainted  with  the  handwriting  of  the 
president  and  cashier,  though  he  had  neyer 
seen  them  write,  was  admitted  to  show  that 
their  signatures  were  not  genuine.  State  v. 
Ravelin,  1  Chip.  295. 

229.  A  person  in  the  exchange  business 
and  the  teller  of  a  bank,  both  of  whom  have 
a  knowledge  of  counterfeit  bank  bills  and  of 
the  genuine  notes  of  a  bank  which  the  pri- 
soner is  charged  with  counterfeiting,  are 
competent  to  testify  as  experts  to  the  char- 
acter of  the  note  charged  to  have  been  coun- 
terfeited ;  and  the  fact  that  they  could  dis- 
cover no  perceptible  difference  between  it 
and  the  genuine  notes,  and  that  their  opin- 
ion against  its  genuineness  was  based  main- 
ly upon  the  imperfectness  and  indistinctness 
of  the  engraved  impression  on  it,  is  no  rea- 
son for  rejecting  their  evidence.  Johnson 
v.  State,  35  Ala.  370. 

230.  The  testimony  of  persons  who  are 
acquainted  with  the  signatures  of  the  presi- 
dent and  cashier  of  a  bank,  from  having 
seen  bills  of  the  bank  in  circulation,  is  ad- 
missible to  prove  that  a  bill  which  purports 
to  be  a  bill  of  the  bank  is  a  forgery.  State 
V.  Carr,  5  New  Hami).  367 ;  Com.  v.  Smith, 
€  Serg.  &  Rawle,  568.  Where  a  person  had, 
for  several  years,  been  in  the  habit  of  re- 
ceiving and  paying  away  notes  of  a  partic- 
ular bank,  it  was  held  that  he  was  a  com- 
petent witness  to  prove  the  genuineness  or 
forgery  of  a  note  on  that  bank,  though  he 
had  never  seen  the  president  or  cashier 
write,  and  never  had  a  letter  from  them. 
State  V.  Chandler,  3  Hawks,  393. 

231.  On  a  trial  for  passing  a  forged  bank 
note,  a  person  was  held  competent  to  prove 
that  the  note  was  counterfeit,  who  had  for 
ten  years  been  employed  as  cashier  of  a 
bank,  and  in  that  capacity  had  received  and 
passed  away  a  great  number  of  the  notes  of 
this  bank,  without  ever  having  had  one  re- 


turned as  a  counterfeit,  and  who  testified 
that  he  believed  he  could  readily  distinguish 
between  a  genuine  and  a  counterfeit  note, 
not  only  from  the  signatures,  but  also  from 
the  paper,  engraving,  and  general  appear- 
ance of  the  note.  State  v.  Harris,  5  Ired. 
287. 

232.  On  a  trial  for  altering  a  bank  bill, 
the  bank  being  out  of  the  State,  forty  miles 
distant,  the  forgery  was  allowed  to  be 
proved  by  two  witnesses  who  had  often  re- 
ceived and  paid  out  bills  purporting  to  be 
made  by  the  bank,  but  neither  of  whom  had 
ever  seen  the  president  or  cashier  write. 
Com.  V.  Carey,  2  Pick.  47. 

233.  On  the  trial  of  an  indictment  for 
having  in  possession  a  counterfeit  bank  note, 
it  is  not  sufficient  for  witnesses  to  swear  to 
the  identity  of  the  note,  unless  it  has  been 
constantly  in  their  possession,  or  they  put  a 
private  mark  upon  it.  Com.  v.  Kinison, 
4  Mass.  646. 

234.  Proof  of  handwriting  in  general. 
On  the  trial  of  an  information  for  uttering  a 
forged  power  of  attorney,  it  is  competent  to 
prove  that  both  the  power  and  the  deed 
purporting  to  have  been  executed  in  pursu- 
ance of  it,  are  in  the  handwriting  of  a  con- 
federate of  the  defendant.  People  v.  Marion, 
29  Mich.  31, 

235.  The  methods  of  proving  handwriting 
are,  by  the  testimony  of  those:  1st.  Who 
have  seen  the  person  write.  2d.  Who  have 
received  letters  of  such  a  nature  as  render  it 
highly  probable  that  they  were  written  by 
the  person.  3d.  Who  have  inspected  and 
become  familiar  with  authentic  documents 
which  bear  the  signature  of  the  person. 
State  v.  Allen,  1  Hawks,  6. 

236.  In  a  trial  for  forgery,  a  paper  was 
handed  to  a  witness  with  all  the  writing  but 
the  signature  concealed,  and  the  witness 
asked  whether  the  signature  was  his.  Held, 
that  the  witness  was  not  bound  to  answer 
without  first  seeing  the  contents  of  the 
paper.  Com.  v.  Whitney,  Thach.  Crim.  Cas. 
588. 

237.  Comparison  of  hands.  When  a 
writing  has  been  proved  to  be  genuine,  a 
comparison  may  be  made  between  it  and 
the  writing  in   dispute   by  witnesses   who 


FOEGERT  AND   COUNTERFEITING. 


217 


Evidence. 


may  give  their  opinions  founded  on  such 
comparison,  and  then  the  writings  and  the 
testimony  of  the  witnesses  respecting  tlie 
same  are  to  be  submitted  to  the  jury.  State 
V.  Hastings,  53  New  Hamj).  452 ;  s.  c.  3 
Green's  Crim.  Reps.  334.  Contra^  except  as 
to  ancient  writings.  State  v.  Givens,  5  Ala. 
747. 

238.  In  general,  comparison  of  hands  is 
not  admissible  as  evidence  to  prove  or  dis- 
prove the  genuineness  of  a  signature  or  writ- 
ing; but  when  the  proof  is  so  contradictory 
as  to  leave  it  doubtful,  such  evidence  may  be 
given.     People  v.  Hewit,  2  Parker,  20. 

239.  On  the  trial  of  an  indictment  for  forg- 
ery, a  writing  irrelevant  to  the  issue  is  not 
admissible  in  evidence  to  enable  the  jury  to 
institute  a  comparison  of  handwriting  by 
juxtaposition  of  the  two  documents  in  order 
to  ascertain  whether  both  were  written  by 
the  same  person.  State  v.  Fritz,  23  La.  An. 
55. 

240.  The  handwriting  of  the  supposed 
maker  or  iudorser  of  the  forged  instrument 
cannot  be  submitted  to  the  jury  for  the  pur. 
pose  of  enabling  them  to  comjoare  it  with 
that  of  the  forged  instrument.  Bishop  v. 
State,  30  Ala.  34. 

241.  Contents  of  writing.  Where  on  a 
trial  for  forgery  it  is  proved  that  the  orig- 
inal paper  is  lost,  or  destroyed,  or  in  the 
hands  of  the  defendant,  or  of  an  accomplice, 
or  a  third  person,  evidence  may  be  given  of 
its  contents  without  notice  to  produce  it. 
Pendleton's  Case,  4  Leigh,  694;  U.  S.  v. 
Doebler,  1  Bald.  519;  McGinnis  v.  State,  24 
Ind.  500 ;  overruling  Armitage  v.  State,  13 
lb.  441,  and  Williams  v.  State,  16  lb.  461. 

242.  Where  the  instrument  alleged  to  have 
been  forged  is  set  out  verl>atim  in  the  in- 
dictment, and  is  proved  to  have  been  mu- 
tilated, the  prosecution  may  introduce  sec- 
ondary evidence  of  the  contents  of  the  mu- 
tilated part,  after  first  proving  the  existence 
of  the  writing  before  mutilation  as  set  out, 
and,  in  connection  with  such  secondary  evi- 
dence, may  then  offer  in  evidence  the  muti- 
lated writing.  Thompson  v.  State,  30  Ala.  28. 

243.  Secondary  evidence  of  the  contents 
of  the  instrument  alleged  to  have  been 
forged,  which  is  cJiarged  in  the  indictment 


to  have  been  destroyed  or  withheld  by  the 
defendants  is  not  admissible  on  proof  that  it 
was  last  seen  on  the  trial  of  a  habeas  corpus 
at  the  suit  of  another  one  of  the  defendants, 
in  the  possession  of  his  attorney,  who  is  not 
called  to  'answer  as  to  his  possession.  Mor- 
ton v.  State,  30  Ala.  527. 

244.  Name  of  party.  Under  an  indict- 
ment charging  the  passing  of  counterfeit 
coin  to  a  particular  person,  the  christian 
name  of  the  individual  must  be  proved  as 
laid.  Where  he  was  called  Eli  Clements  in 
the  indictment,  and  there  was  no  proof  that 
his  christian  name  was  Eli,  it  was  held  that 
it  was  error  to  charge  the  jury  that  they 
might  infer  from  the  testimony  that  his 
name  was  Eli.     Gabe  v.  State,  1  Eng.  519. 

245.  Where  an  indictment  for  forging  a 
promissory  note,  in  setting  out  the  note  gave 
the  name  of  the  maker  as  "  Otha  Carr^''  and 
the  note  offered  in  evidence  purported  to 
have  been  made  by  "  OatJia  Carr,''''  it  was 
held  that  the  variance  was  fatal.  Brown  v. 
People,  66  111.  344. 

246.  A  bank  note  alleged  to  have  been 
forged  was  set  out  in  the  indictment,  and  the 
name  of  the  president  of  the  bank  stated  to 
be  "  Sedbetter .''''  The  name  in  the  instrument 
ofiered  in  evidence  was  '■'■  Ledbetter.''''  Held 
that  the  variance  was  fatal.  Zellers  v.  State, 
7  Ind.  659. 

247.  Where  notes  alleged  to  have  been 
forged,  as  set  out  in  the  indictment  were 
payable  to  ''  E.  Cymour  or  bearer,"  and  those 
offered  in  evidence  were  payable  to  ''  E.  Sey- 
mour or  bearer,"  it  was  held  that  the  vari- 
ance was  fatal.  Porter  v.  State,  15  Ind.  433 ; 
s.  c.  17  lb.  415. 

248.  Agent  or  servant.  The  charge  of 
attempting  to  pass  a  forged  instrument  will 
be  austained  by  proof  that  the  attempt  was 
made  through  an  agent.  U.  S.  v.  Morrow, 
4  Wash.  733. 

249.  Under  an  indictment  for  altering  an 
order  in  writing  for  money  payable  to  the 
defendant,  evidence  that  another  did  it,  the 
defendant  knowing  and  assenting  to  it,  was 
held  sufficient  to  warrant  a  conviction.  Com. 
V.  Parmenter,  5  Pick.  279. 

250.  Where  a  counterfeit  bank  bill  is 
actually  delivered  to  an  agent  or  servant  of 


218 


FOEGERY   AND   COUNTERFEITING. 


Evidence. 


the  person  defrauded,  it  may  be  alleged  and 
proved  that  the  uttering  and  passing  were  to 
the  former,  although  he  had  no  beneficial 
interest  in  the  transaction,  and  the  evidence 
would  also  support  an  allegation  of  an  intent 
to  defraud  the  principal.  Com.  v.  Starr,  4 
Allen,  301. 

251.  The  agent  of  a  company  to  whom  a 
forged  demand  against  the  company  was 
presented,  is  a  competent  witness  to  prove 
his  agency,  on  a  trial  for  forgery,  against  the 
person  who  attempted  to  collect  the  money. 
Manaway  v.  State,  44  Ala.  375. 

252.  Declarations  of  party  injured. 
Where  on  the  trial  of  an  indictment  for 
forging  the  name  of  A.  to  a  note  and  con- 
tract, dated  respectively  the  16th  and  17th  of 
April,  it  was  proved  that  at  those  dates  A. 
was  ill  in  bed,  that  he  died  on  the  20th  of 
April,  and  that  he  had  abandoned  all  hopes 
of  getting  well  as  early  as  the  13th— it  was 
held  that  the  defense  might  show  that  on 
the  18th  of  the  same  month,  A.  declared  that 
he  had  executed  the  note  and  contract  in 
question.  People  v.  Blakeley,  4  Parker, 
176. 

253.  Acts  and  declarations  of  defendant. 
Where  two  have  confederated  to  pass  coun- 
terfeit notes,  or  any  joint  concurrent  action 
in  passing  them  is  proved,  the  act  of  one  is 
evidence  against  the  other.  U.  S.  v.  Hin- 
man,  1  Bald.  292. 

254.  On  the  trial  of  an  indictment  for 
having  a  counterfeit  bank  bill  with  intent  to 
pass  the  same,  knowing  it  to  be  counterfeit, 
the  previous  declaration  of  the  defendant, 
that  he  was  accustomed  to  buy  and  sell 
counterfeit  money  and  was  familiar  with 
different  kinds  of  forged  notes  or  bills,  is 
admissible  as  tending  to  jorove  guilty  knowl- 
edge ;  but  not  a  letter  containing  counterfeit 
money  received  by  him  through  the  post 
ofiice,  which  he  had  not  opened  when  ar- 
rested.    Com.  V.  Edgerly,  10  Allen,  184. 

255.  On  a  trial  for  knowingly  having  in 
possession  an  instrument  adapted  and  de- 
signed for  coining  or  making  counterfeit 
coin,  with  intent  to  use  it,  or  permit  it  to  be 
used  for  that  pui-pose,  it  was  held  that  the 
defendant  could  not  prove  his  declarations 
to  an  artificer,  at  the  time  he  employed  him 


to  make  such  instrument,  as  to  his  object  in 
having  it  made.  Com.  v.  Kent,  6  Mete. 
221. 

256.  Presumption  as  to  bank.  On  a  trial 
for  counterfeiting  bank  bills,  proof  that  tlie 
bills  of  a  bank  are  received  by  public  officers 
of  the  State,  and  that  such  bills  are  in  general 
circulation,  is  sufficient  to  raise  the  pre- 
sumption that  the  acts  required  to  be  done 
by  the  bank  before  its  charter  should  take 
effect  were  preformed.  State  v.  Calvin,  R. 
M.  Charlt.  151. 

257.  Presumption  from  conduct  of  de- 
fendant. On  the  trial  of  an  indictment  for 
having  in  possession  with  intent  to  utter  and 
pass  counterfeit  notes  of  the  United  States, 
the  fact  that  the  prisoner  when  arrested 
gave  no  explanation  of  the  manner  in  which 
he  came  by  the  notes,  is  a  circumstance 
proper  for  the  consideration  of  the  jury. 
U.  S.  V.  Kenneally,  5  Bis.  122. 

258.  On  a  trial  for  forgery,  proof  that  the 
accused  employed  a  fabricated  deposition  in 
aid  of  the  instrument  is  admissible  as  tend- 
ing to  show  his  guilt.  State  v.  Williams, 
27  Vt.  724. 

259.  Where  it  was  proved  that  the  de- 
fendant passed  a  counterfeit  bank  bill,  and 
that  he  gave  different  accounts  as  to  the 
person  from  whom  he  received  it,  and  did 
not  attempt  uj^on  the  trial  to  give  any  ex- 
planation, it  was  held  that  the  evidence  was 
sufficient  to  sustain  a  verdict  of  guilty. 
Perdue  v.  State,  2  Humph.  494. 

260.  Where  the  defendant  in  an. indict- 
ment for  uttering  and  passing  as  true  a 
counterfeit  bank  bill,  in  order  to  jirocure 
delay  in  his  trial,  on  the  ground  of  the  ab- 
sence of  a  material  witness,  made  an  affidavit 
in  which  he  attempted  to  account  for  the 
possession  of  the  counterfeit  money,  and  it 
was  proved  that  at  other  times  he  had  ac- 
counted for  its  possession  in  a  different 
manner,  it  was  held  that  the  jury  might 
take  his  contradictory  statements  into  con- 
sideration as  indicative  of  guilt.  Com.  v. 
Starr,  4  Allen,  301. 

261.  On  a  trial  for  forging  a  check  on  a 
bank,  it  was  not  i)roved  that  the  accused 
wrote  or  signed  the  check ;  but  there  were 
circumstances  tending  strongly  to  establish 


FORGEKY  AND  COUNTERFEITING. 


21l> 


Evidence. 


that  he  fraudulently  uttered  it.  He  left 
with  an  expressman  a  sealed  envelope,  di- 
rected to  C.  «&  S.,  containing  the  check,  and 
an  order  to  C.  &  S.  to  deliver  specified  gold 
leaf  to  the  bearer,  and  to  receipt  the  bill. 
He  also  requested  the  expressman  to  deliver 
the  letter,  and  get  from  C.  &  S.  a  box  -which 
he  was  to  carry  to  a  hotel.  And  the  prisoner 
met  him  there,  claimed  and  received  the 
box,  and  paid  tbe  express  charges.  Held, 
that  there  was  sufficient  evidence  to  be  sub- 
mitted to  the  jury.  Watson  v.  People,  64 
Barb.  130. 

262.  Under  an  indictment  against  several 
for  forging  an  indorsement  on  a  bank  check, 
it  is  competent  to  prove,  as  tending  to  show 
concert,  that  the  defendants  agreed  to  pro- 
cure money  by  means  of  forged  paper  from 
banks,  without  reference  to  any  particular 
bank.     State  v.  Morton,  27  Vt.  310. 

263.  Where  a  person  draws  a  bill  of  ex- 
change on  himself,  payable  to  his  own  order, 
accepts  and  indorses  it,  the  presumption  is, 
that  the  second  indorsement  was  made  after 
the  first.     Com.  v.  Butterick,  100  Mass.  13. 

264.  Presumption  from  possession.  The 
possession  by  the  prisoner,  of  the  forged 
note  described  in  the  indictment,  with  other 
similar  forged  notes,  and  the  plates,  imple- 
ments and  materials  for  forging  such  notes, 
is  prima  facie  evidence  that  the  prisoner  is 
a  forger.  Sjjencer's  Case,  2  Leigh,  751; 
State  v.  Britt,  3  Dev.  123;  Perkins  v.  Com. 
7  Gratt.  651;  Com.  v.  Talbot,  2  Allen,  161. 

265.  On  a  trial  for  forging  bank  bills, 
proof  that  the  prisoner  had  in  his  possession 
other  similar  bills  about  the  same  time,  is 
admissible,  although  other  indictments  are 
pending  against  him  for  these  acts.  Com. 
v.  Percival,  Thach.  Crim.  Cas.  293;  Com.  v. 
Chandler,  lb.  187;  State  v.  Williams,  2 
Rich.  418;  State  v.  McAllister,  24  Maine, 
139. 

266.  The  knowingly  and  secretly  keeping 
instruments  adapted  for  counterfeiting,  raises 
the  presumption  that  they  were  intended  to 
be  used  for  that  purpose,  which  the  defend- 
ant is  required  to  rebut.  People  v.  Page, 
Idaho,  114. 

267.  On  a  trial  for  forgery  in  obliterating 
the  writing  of  a  check,   and   substituting 


therefor  other  words  and  figures,  it  is  com- 
petent to  prove  by  a  witness  who  is  not  an 
expert,  that  certain  effects  followed  the  ap- 
plication of  a  powder  in  extracting  ink  from 
a  paper,  which  powder  was  found  in  the 
possession  of  the  defendants,  and  the  paper 
upon  which  the  effect  sworn  to  by  the  wit- 
ness was  produced  may  be  shown  to  the 
jury.  People  v.  Brotherton,  47  Cal.  388 ;  s. 
c.  2  Green's  Crim.  Reps.  444. 

268.  To  constitute  the  offense  of  having 
in  possession  counterfeit  blank  and  unfin- 
ished bank  bills,  it  is  not  necessary  to  prove 
the  intent  to  fill  them  up  by  showing  an 
attempt  to  do  so;  the  intention  being  suf- 
ficiently manifested  by  the  circumstance  of 
possession.     People  v.  Ah  Sam,  41  Cal.  645. 

269.  On  the  trial  of  an  indictment  for 
having  counterfeit  coin  with  intent  to  pass- 
the  same,  and  with  intent  to  defraud  F.  and 
others,  the  evidence  tended  to  prove  that 
the  defendant  had  a  large  amount  of  coun- 
terfeit coin  in  his  possession  for  the  purposes 
of  sale,  and  that  F.,  acting  in  concert  with 
the  police,  succeeded  in  purchasing  of  the 
defendant  counterfeit  coin  of  the  nominal 
value  of  several  hundred  dollars.  Held^ 
sufficient  to  sustain  a  conviction.  People  v. 
Farrell,  30  Cal.  316. 

270.  Genuine  papers  of  the  same  kind  as 
the  one  alleged  to  be  forged,  which  were 
presented  with  it,  and  taken  from  the  accused 
at  the  same  time,  are  admissible  in  evidence 
as  part  of  the  res  gestce.  Manaway  v.  State, 
44  Ala.  375. 

271.  On  a  trial  for  forgery,  the  prosecution, 
after  connecting  the  prisoner  with  other  per- 
sons in  the  transaction,  may  prove  that 
different  parts  of  the  machine  employed  in 
the  counterfeiting  were  found  in  possession 
of  such  other  persons.  U.  S.  v.  Craig,  4 
W^ash.  C.  C.  729. 

272.  On  the  trial  of  a  person  for  having 
in  his  possession  an  altered  bank  bill  with 
intent  to  pass  the  same,  it  was  held  error 
in  the  court  to  allow  the  prosecution  to 
prove  that  the  wife  of  the  prisoner,  who^ 
was  arrested  about  the  same  time  he  was, 
had  in  her  possession  engraved  figures  cut 
from  genuine  bills,  there  being  no  other  evi- 
dence of  any  concert  between  the  prisoner 


220 


FORGERY  AND  COUNTERFEITING. 


Evidence. 


and  his  wife,  or  that  they  were  mutually 
engaged  in  altering  bunk  bills,  or  that 
either  of  them  had  any  knowledge  of  the 
facts  -which  were  proved  against  the  other. 
People  V.  Thomas,  3  Parker,  256,  Dean,  J., 
■contra  ;  affi'd  3  N.  Y.  Ct.  of  Appeals  Decis. 
571. 

273.  Presumption  as  to  place.  Evidence 
that  the  prisoner  attempted  to  pass  a  forged 
note  in  a  certain  county  is  presumptive  evi- 
dence that  that  was  the  place  of  the  forgery. 
Bland  v.  People,  3  Scam.  364;  Spencer's 
Case,  3  Leigh,  751 ;  Johnson  v.  State,  35 
Ala.  370 ;  State  v.  Morgan,.  2  Dev.  &  Batt. 
348 ;  contra^  Com.  v.  Parmenter,  5  Pick.  279. 

274.  Where  a  forged  instrument  pur- 
ported to  have  been  made  in  Charleston, 
S.  C,  and  it  was  shown  that  the  prisoner  at 
its  date  was  there  and  had  the  same  in  his 
possession,  it  was  held  suiEcient  to  show 
that  it  was  made  there.  State  v.  Jones,  1 
McMullan,  236. 

275.  Where  an  altered  check  was  pro- 
duced at  Boston,  and  the  prisoner  gave  no 
explanation  of  the  time  or  place  of  the  alter- 
ation, it  was  held  that  the  presumption  was 
that  the  alteration  was  made  in  Massa- 
chusetts.    U.  S.  V.  Britton,  2  Mason,  464. 

276.  Character.  Where  on  the  trial  of 
an  indictment  for  having  counterfeit  bank 
bills  with  the  intent  to  pass  them,  the  ac- 
cused had  not  put  his  character  in  issue,  it 
was  held  error  to  admit  in  evidence  the 
confession  of  the  prisoner  that  he  had  been 
a  convict  in  a  State  jDrison.  People  v. 
White,  14  Wend.  111.  See  Ackley  v.  Peo- 
ple, 9  Barb.  609. 

277.  Guilty  knowledge  and  intent.  To 
sustain  an  indictment  for  having  a  counter- 
feit bank  note  in  possession,  three  things 
must  be  proved:  1,  the  possession  of  the 
bank  bill ;  2,  the  knowledge  of  its  being 
counterfeit ;  and  3,  the  intention  to  pass  it 
with  a  view  to  defraud.  Harland  v.  People, 
1  Doug.  207. 

278.  On  a  trial  for  forgery,  it  is  not 
error  in  the  court  to  instruct  the  jury  that 
they  will  be  authorized  to  infer  an  intent  to 
defraud  from  the  character  of  the  instru- 
ment, if  they  find  that  it  was  forged.  State 
V.  Kimball,  50  Maine,  409. 


279.  An  indictment  for  uttering  a  forged 
instrument  in  writing  with  intent  to  de- 
fraud may  be  sustained,  although  it  is 
proved  that  the  person  to  whom  the  forged 
instrument  was  addressed  was  not  ac- 
quainted with  the  supposed  drawer,  and 
had  no  account  with  him,  nor  any  goods  in 
his  possession  belonging  to  him.  People  v. 
Way,  10  Cal.  336. 

280.  On  the  trial  of  an  indictment  for 
uttering  counterfeit  coin,  guilty  knowledge 
must  be  proved,  and  the  possession  by  the 
prisoner  of  instruments  for  coining  may  be 
shown  for  this  purpose.  Wash  v.  Com.  16 
Cratt.  530;  State  v.  Antonio,  3  Brev.  563. 

281.  But  where  on  trial  of  an  indictment 
for  having  in  possession  counterfeit  bank 
notes  with  guilty  intent,  the  prosecution 
were  allowed  to  prove  that  appliances  and 
materials  for  the  manufacture  of  counterfeit 
coin  were  found  in  the  possession  of  the  de- 
fendant, in  order  to  show  guilty  knowledge 
and  intent,  it  was  held  error,  the  only  evi- 
dence admissible  for  this  purpose  being  the 
possession  of  other  counterfeits  similar  in 
kind.     Bluff  V.  State,  10  Ohio,  N.  S.  547. 

282.  Under  an  indictment  for  having  in 
possession  counterfeit  money  with  intent  to 
pass  it,  the  possession  must  be  proved  by 
positive  evidence,  but  the  intent  may  be 
shown  from  circumstances.  Peoj^le  v.  Gard- 
ner, 1  Wheeler's  Crim.  Cas.  33. 

283.  On  the  trial  of  an  indictment  for 
having  in  the  defendant's  possession  a 
counterfeit  bank  bill  of  another  State,  and 
uttering  and  publishing  the  same  as  true, 
the  follow'ing  instruction  was  held  correct: 
That  the  indictment  would  be  supported  by 
proof  that  the  defendant  being  himself  ap- 
prised that  the  bill  was  counterfeit,  and 
knowing  that  it  was  the  purpose  of  H., 
upon  obtaining  it  by  purchase,  to  utter  and 
render  it  current  as  true,  had  it  in  his  pos- 
session with  intent  to  sell  it  to  H.,  and  did 
actually  sell  it  to  him,  to  enable  him  to  dis- 
pose of  it  in  violation  of  law,  and  partici- 
pated with  him  in  carrying  that  pui"pose  in- 
to execution.     Com.  v.  Davis,  11  Gray,  4. 

284.  On  the  trial  of  an  indictment  for  ut- 
tering and  passing  as  true  a  counterfeit 
bank  bill,  evidence  that  the  defendant  had 


rOEGEKY   AND   COUNTERFEITING. 


221 


Evidence. 


been  employed  in  the  business  of  printing 
parts  of  genuine  bank  bills  is  admissible  to 
show  knowledge  on  his  part  that  the  bills 
he  passed  were  counterfeit.  And  evidence 
that"  he  swallowed  a  counterfeit  bill  when 
arrested,  the  morning  after  the  commission 
of  the  offense  alleged  in  the  indictment,  the 
bill  being  similar  to  those  passed  by  him,  is 
also  admissible  to  show  guilty  knowledge 
and  intent.     Com.  v.  Hall,  4  Allen,  305. 

285.  On  a  trial  for  having  counterfeit 
notes  in  possession,  evidence  is  admissible 
that  other  counterfeits  were  found  secreted 
in  the  prisoner's  house,  in  possession  of  his 
wife.  Hess  v.  State,  5  Ohio,  5.  But  whether 
on  the  trial  of  a  person  for  passing  a  coun- 
terfeit gold  piece,  evidence  that  the  defend- 
ant had  in  his  possession  and  attempted  to 
secrete  counterfeit  bank  notes,  is  admissible 
on  the  question  of  guilty  knowledge — query. 
Lane  v.  State,  16  Ind.  14. 

286.  On  the  trial  of  an  indictment  for 
passing  a  forged  bank  note  or  check,  evi- 
dence that  the  prisoner  uttered  another 
forged  note  or  check  on  the  same  bank 
about  the  same  time,  is  admissible  to  show 
guilty  knowledge.  State  v.  Eobinson,  1 
Harr.  507;  Mount  v.  Com.  1  Duvall,  90; 
Steele  v.  People,  45  HI.  152. 

287.  On  the  trial  of  an  indictment  for 
having  in  possession  with  intent  to  pass,  and 
for  passing  with  intent  to  defraud,  it  is  com- 
petent to  prove  on  the  question  of  guilty 
knowledge,  that  the  prisoner,  on  the  same 
day  and  at  the  same  gambling  sitting,  passed 
as  genuine  spurious,  as  distinguished  from 
counterfeit  bank  bills,  and  that,  when  ar- 
rested, he  had  several  such  bills,  both  signed 
and  unsigned,  in  his  possession.  State  v. 
Brown,  4  R.  I.  528. 

288.  On  the  trial  of  an  indictment  for  pass- 
ing a  counterfeit  bank  note,  after  it  had  been 
proved  that  the  defendant  passed  the  note, 
it  was  held  competent  to  show  that  he 
passed  other  counterfeit  notes  of  the  same 
kind  to  other  persons,  the  day  after  he  com- 
mitted the  offense  charged.  Hendrick's 
Case,  5  Leigh,  707.  To  show  guilty  knowl- 
edge, it  may  be  proved  that  the  prisoner 
passed  other  counterfeit  notes  at  different 
times,  before  and  subsequent.    State  v.  Mise, 


15  Mo.  153;  Martin's  Case,  2  Leigh,  745; 
Com.  V.  Woodbury,  Thach.  Crim.  Cas.  47; 
Peck  V.  State,  2  Humph.  78;  U.  S.  v.  Doeb- 
ler,  1  Bald.  519;  State  v.  Van  Heuten,  2 
Penn.  672;  U.  S.  v.  Mitchell,  1  Bald.  366; 
Powers  V.  State,  9  Humph.  274 ;  McCartney 
V.  State,  3  Ind.  353;  State  v.  Tuitty,  2 
Hawks,  248;  Reed  v.  State,  15  Ohio,  207; 
State  V.  Van  Houten,  Penning.  2d  ed.  495 ; 
Com.  V.  Price,  10  Gray,  472. 

289.  But  to.  enable  the  prosecution  to  give 
evidence  of  other  utterings  of  forged  notes  or 
bills  subsequent  to  that  charged  in  the  in- 
dictment, they  must* in  some  way  be  con- 
nected with  the  principal  case,  or  the  notes 
and  bills  must  be  of  the  same  manufacture 
and  be  precisely  similar.  Dibble  v.  People, 
4  Parker,  199;  affi'd  3  N.  Y.  Ct.  of  Appeals. 
Decis.  518.  And  see  People  v.  Corbin,  5ft 
N.  Y.  363. 

290.  On  a  trial  for  passing  a  counterfeit 
note  of  a  particular  bank,  evidence  of  pass- 
ing a  counterfeit  note  of  another  bank  at 
another  time  is  not  admissible.  U.  S.  v.. 
Roudenbush,  1  Bald.  514.  Therefore,  on  a 
trial  for  forging  a  bank  note  of  the  bank  of 
the  State  of  North  Carolina,  it  was  held  er- 
ror to  admit  evidence  of  an  attempt  by  the 
defendant,  three  years  previous,  to  utter 
forged  bank  notes  of  the  Northern  Bank  of 
Kentucky.  Morris  v.  State,  8  Sm.  &  Marsh. 
762. 

291.  On  the  trial  of  an  indictment  for  ut- 
tering forged  notes,  evidence  is  admissible 
to  show  that  the  prisoner,  at  or  near  the 
same  time,  uttered  other  similar  notes,  al- 
though he  admits  that  he  passed  such  notes, 
and  that,  if  they  were  not  genuine,  he  knew 
the  fact,  at  the  same  time,  however,  denying 
the  forgery;  the  prosecution  having  a  right 
to  make  out  their  own  case,  without  relying 
on  an  admission  of  the  defendant.  Com.  v. 
Miller,  3  Cush.  243. 

292.  On  a  prosecution  for  uttering  a 
forged  note,  evidence  is  admissible  on  the 
question  of  guilty  knowledge  to  show  that 
the  defendant  passed  another  forged  note, 
although  he  had  been  acquitted  on  an  in- 
dictment for  uttering  the  hitter  note,  the 
acquittal  only  weakening  the  force  of  this 
evidence.     State  v.  Houston,  1  Bailey,  300. 


222 


FORGERY  AIS'D   COUNTERFEITING. 


Evidence. 


293.  On  the  trial  of  an  information  against 
A.  for  uttering  a  counterfeit  bank  bill, 
knowing  it  to  be  counterfeit,  it  was  proved 
that  A.  and  B.  had  entered  into  a  conspiracy 
to  utter  counterfeit  bills  similar  to  the  bill 
described  in  the  information.  Held  that 
on  the  question  of  guilty  knowledge  evi- 
dence was  admissible  to  prove  that,  at  two 
diflferent  places,  a  day  or  two  previous  to 
the  alleged  offense,  and  at  another  place 
«oon  after  its  commission,  B.  uttered  other 
counterfeit  bills  of  the  same  bank,  A.  being 
in  company  with  B.  immediately  before  and 
after  such  putting  off'byB.,  but  not  actu- 
ally present  with  him  at  those  times.  State 
V.  Spalding,  19  Conn.  233. 

294.  On  the  trial  of  an  indictment  for 
passing  a  forged  note,  knowing  it  to  be 
forged,  evidence  that  the  prisoner  tried  to 
hire  a  person  to  procure  for  him  counterfeit 
money,  that  he  inquired  whether  he  had 
brought  him  any,  and  declared  that  he  in- 
tended to  cultivate  the  acquaintance  of  a 
counterfeiter,  and  intended  to  remove  to 
another  place,  is  admissible  as  tending  to 
prove  the  scienter.  Finn  v.  Com.  5  Rand. 
701. 

295.  On  the  trial  of  an  indictment  for 
passing  counterfeit  money,  evidence  that 
about  the  time  of  the  alleged  offense  the 
wife  of  the  defendant  sold  to  the  witness 
other  counterfeit  money  belonging  to  the 
defendant,  in  his  absence,  and  that  the 
defendant  was  afterward  informed  of  the 
transaction  and  sanctioned  it,  is  admissible 
as  tending  to  show  knowledge  on  the  part 
of  the  defendant  that  the  bill  passed  by  him 
was  counterfeit.  Bersch  v.  State,  13  Ind. 
434. 

296.  The  manner  in  which  the  accused 
read  the  note  to  a  person  to  whom  he  offered 
it,  may  be  proved  to  show  the  quo  animo 
with  which  the  note  was  made  and  uttered. 
Butler  V.  State,  22  Ala.  43. 

297.  Evidence  that  the  prisoner,  when 
arrested,  two  or  three  hours  after  an  alleged 
attempt  on  his  part  to  pass  a  counterfeit 
bank  note,  had  in  his  possession  a  large 
amount  of  similar  counterfeited  notes,  which 
he  tried  to  conceal  from  the  officer,  while 
willingly  exhibiting  the  genuine  bank  notes 


in  his  possession,  is  admissible  against  him, 
as  tending  to  show  guilty  knowledge  and 
intent.     Johnson  v.  State,  85  Ala.  370. 

298.  Evidence  that  genuine  notes  of  the 
bank,  which  the  prisoner  is  charged  with 
counterfeiting,  were  at  that  time  current,  is 
admissible  against  him,  as  bearing  on  the 
question  of  fraudulent  intent,  and  tending 
to  show  a  motive  for  the  commission  of  the 
offense.     lb. 

299.  On  the  trial  of  an  indictment  for  the 
forgery  of  a  deed,  it  may  be  proved  by  the 
grantor,  without  notice  to  produce  papers, 
that  the  defendant  had  previously  brought 
to  him  the  draft  of  a  deed  which  he  saw, 
and  read,  but  did  not  execute,  and  which 
w\i3  different  from  the  deed  which  was 
afterwards  brought  to  him  as  the  same,  and 
as  such  executed.  State  v.  Shurtliff,  18 
Maine.  368. 

300.  Where  the  indictment  charges  the 
intent  to  defraud  a  particular  bank  or  per- 
son, the  intent  must  be  proved  as  laid. 
Com.  V.Whitney,  Thach.  Crim.  Gas.  588; 
U.  S.  V.  Moses,  4  Wash.  726  ;  State  v.  Har- 
rison, G9  N.  C.  143 ;  s.  c.  1  Green's  Crim.  Reps. 
537. 

301.  Intoxication  of  defendant.  Intoxi- 
cation is  not  a  defense  to  an  indictment  for 
passing  counterfeit  money  if  the  defendant 
was  possessed  of  his  reason,  and  was  capa- 
ble of  knowing  whether  the  note  passed  by 
him  was  good  or  bad.  U.  S.  v.  Roudenbush, 
1  Bald.  514.  But  the  fact  that  the  prisoner 
was  intoxicated  when  he  passed  a  counter- 
feit bill  is  a  circumstance  proper  to  be  sub- 
mitted to  the  jury  in  determining  whether 
he  knew  that  the  bill  was  counterfeit.  Pig- 
man  V.  State,  14  Ohio,  555. 

302.  To  be  considered  by  jury.     On  the 

trial  of  an  indictment  for  passing  a  forged 
bank  check,  no  other  writing  being  intro- 
duced in  evidence,  and  the  indorsement  and 
signature  being  proved,  it  was  held  projjer 
to  submit  the  check  to  the  jury,  with  or 
without  the  aid  of  experts,  to  determine 
whether  the  whole  instrument,  with  the  in- 
dorsement was  made  by  one  and  the  same 
hand.  State  v.  Scott,  45  Mo.  302.  And  see 
State  V.  Five,  26  Maine,  812. 


FORGERY.— FORMER   ACQUITTAL   OR   CONVICTION.    223 


Verdict. 


General  Principles. 


6.  Verdict. 

303.  Need  not  negative  mitigating  cir- 
cumstance. On  a  trial  for  uttering  and 
publishing  as  true  a  forged  instrument,  the 
verdict  need  not  negative  the  fact  that  the 
defendant  received  the  forged  instrument 
from  another  person,  in  good  faith  and  for 
a  valuable  consideration,  although  that  fact, 
if  found  by  the  jury,  would  reduce  the 
oflfense  to  forgery  in  the  third  degree.  Scully 
V.  State,  39  Ala.  240. 

304.  Bad  for  uncertainty.  An  indict- 
ment contained  a  count  for  the  forgery  of  a 
note,  and  another  count  for  the  forgery  of  an 
indorsement  on  the  note.  The  jury  rendered 
the  following  verdict :  "  Not  guilty  on  the 
first  count.  On  the  second  count,  viz.,  that 
of  uttering  a  negotiable  note,  knowing  it  to 
be  forged,  we  find  the  prisoner  guilty.  Held 
that  the  verdict  was  bad  for  uncertainty. 
Cocke  V.  Com.  13  Graft.  750. 


/ormcr  wlcquittal  ox  £on- 
inctiou. 

1.  Genekal  principles. 

2.  Former  acquittal. 

3.  Former  conviction. 

4.  Plea. 

5.  Evidence. 

1.  General  principles. 
1.  Rights  of  prisoner.  Where  the  ac- 
cused has  been  acquitted,  and  his  acquittal 
has  not  been  procured  by  his  own  fraud  or 
evil  practice,  he  shall  not  again  be  put  in 
jeopardy  by  a  second  trial.  But  in  case  of 
conviction,  the  accused  is  entitled  to  a  new 
trial,  in  the  same  manner  as  in  civil  actions. 
State  V.  Brown,  16  Conn.  54  ;  State  v.  Davis, 
4  Blackf.  345 ;  State  v.  Spear,  G  Mo.  644 ; 
Gerard  v.  People,  3  Scam.  362;  State  v. 
Slack,  6  Ala.  676;  People  v.  Allen,  1  Parker, 
445;  State  v.  Johnson,  8  Blackf.  533;  Case 
of  Serjeant,  2  City  Hall  Rcc.  44.  A  former 
acquittal  is  not,  however,  a  bar  to  a  second 
prosecution  for  the  same  offense,  unless  the 
real  merits  were  gone  into  under  the  first  in- 
dictment.    Com.  V.  Curtis,  Thach.  Crim.  Cas. 


202.  In  Arkansas,  in  cases  of  misdemeanor 
punishable  by  fine  only,  after  trial  and  ac- 
quittal, there  may  be  a  second  trial  for  the 
same  oflense.     Jones  v.  State,  15  Ark.  261. 

2.  Where  persons  are  indicted  for  an 
assault  and  battery  committed  upon  A.,  B. 
or  C,  the  indictment  and  conviction  may 
be  pleaded  in  bar  of  a  second  prosecution ; 
and  on  the  tiial  of  such  issue  it  will  be  com- 
petent for  the  defendants  to  show  that  on 
the  former  trial  proof  of  an  assault  upon 
such  person  was  given,  and  that  it  was  the 
assault  for  which  the  jury  found  their  ver- 
dict; and  such  proof  will  entitle  the  de- 
fendants to  acquittal.  People  v.  White,  55 
Barb.  606. 

3.  What  required  to  constitute  a  bar. 
A  former  trial  is  not  a  bar,  unless  the  first 
indictment  was  such  that  the  prisoner  might 
have  been  convicted  upon  proof  of  the  facts 
set  forth  in  the  second  indictment.  Burns 
V.  People,  1  Parker,  182  ;  Price  v.  State,  19 
Ohio,  423 ;  Durham  v.  People,  4  Scam.  172  ; 
State  V.  Glasgow,  Dudley,  S.  C.  40 ;  Com.  v. 
Wade,  17  Pick.  395 ;  Com.  v.  Roby,  12  Pick. 
496 ;  State  v.  Birmingham,  Busbee,  120 . 
Roberts  v.  State,  14  Ga.  8.  Where  the  jury 
could  lawfully  have  found  the  defendant 
guilty  of  a  lesser  oflense,  an  acquittal  of  a 
higher  will  be  a  bar  to  an  indictment  for  the 
lower.     State  v.  Standifer,  5  Porter,  523. 

4.  Pendency  of  second  indictment.  The 
pendency  of  an  indictment  is  not  a  ground 
for  a  plea  in  abatement  to  another  indict- 
ment in  the  same  court  for  the  same  cause ; 
nor  is  it  a  ground  for  arresting  judgment. 
Com.  V.  Drew,  3  Cush.  279  ;  Com.  v.  Mur- 
phy, 11  lb.  472;  Com.  v.  Berry,  5  Gray,  93. 

5.  Demurrer  to  plea  to  jurisdiction.  On 
a  trial  for  murder,  the  prisoner  jileaded  in 
bar  to  the  jurisdiction  of  the  court,  to  which 
the  prosecution  demurred  and  the  court  sus- 
tained the  demurrer  and  ordered  the  pris- 
oner to  plead  over  to  the  indictment.  Held 
that  there  had  been  no  trial  within  the  pro- 
visions of  the  State  and  national  constitu- 
tions, which  protect  persons  from  being 
twice  put  in  jeopardy  for  the  same  oflense. 
Gardiner  v.  People,  6  Parker,  155. 

6.  Impanneling  jury  without  arraign- 
ment.    Where  there  is  no  arraignment  of 


224 


FOKMER  ACQUITTAL  OE  CONVICTION. 


General  Principles. 


Former  Acquittal. 


the  prisoner,  nor  waiver  of  it,  the  irapannel- 
ing  of  a  jury  is  a  mere  irregularity,  and  the 
prisoner  may  be  tried  on  another  indictment 
for  the  same  offense.  Bryaus  v.  State,  34 
Ga.  323. 

7.  Where  the  offense  is  against  sepa- 
rate jurisdictions.  Altliough  a  person  can- 
not be  twice  punished  under  the  same  juris- 
diction, yet  he  may  be,  where  the  offense  is 
against  two  different  jurisdictions — as  for  a 
violation  of  the  charter  of  a  city  and  a  penal 
law  of  the  State.  Ambrose  v.  State,  6  Ind. 
351 ;  Phillips  v.  People,  55  111.  439. 

2.  Former  acquittal. 

8.  Discharge  by  magistrate.  In  Vir- 
ginia a  discharge  by  an  examining  court 
upon  an  accusation  of  felony,  is  not  a  bar  to 
another  prosecution  for  the  same  offense,  un- 
der the  statute  (Code,  ch.  205,  §  11),  unless 
the  record  shows  that  the  discharge  was 
upon  the  investigation  of  the  facts.  McCann 
V.  Com.  14  Gratt.  570. 

9.  Quashing  indictment.  Where  an  in- 
dictment is  quashed  by  reason  of  some  of 
the  grand  jurors  who  found  the  bill  being 
incompetent,  the  prisoner  may  be  tried  on 
another  indictment.  Brown  v.  State,  5  Eng. 
607. 

10.  When  the  indictment  is  so  defective 
that  no  judgment  can  be  given  upon  it,  there 
may  be  a  second  prosecution  notwithstand- 
ing an  acquittal.  Canter  v.  People,  2  N.  Y. 
Trans.  Appeals,  1. 

11.  The  fact  that  permission  was  given  to 
the  defendant  to  withdraw  his  plea  of  not 
guilty  and  file  a  plea  of  misnomer  in  abate- 
ment, and  the  abatement  of  the  indictment 
on  that  ground,  will  not  bar  a  second  prose- 
cution for  the  same  offense.  Com.  v.  Farrell, 
105  Mass.  189. 

12.  But  where  a  prosecuting  attorney, 
having  discovered  a  material  omission  in  an 
indictment  for  perjury,  supplied  it  without 
the  leave  of  the  court,  and  the  case  went  to 
trial  on  the  indictment  as  amended,  and  the 
defendant  was  acquitted — Held  that  such 
acquittal  was  a  bar  to  a  subsequent  indict- 
ment for  the  same  offense.  People  v.  Cook, 
10  Mich.  164. 

13.  Suspension  of  trial.     A  former  in- 


dictment for  the  same  offense,  arraignment 
thereon,  plea  of  not  guilty,  commencement 
of  the  trial  by  calling  one  juror,  and  its  sus- 
pension against  the  consent  of  the  prisoner, 
is  not  a  bar  to  a  second  indictment.  Ferris 
v.  People,  48  Barb.  17. 

14.  Entry  of  nolle  prosequi.  A  nolle 
prosequi  entered  by  the  prosecution,  and  a 
consequent  discharge  of  the  prisoner,  is  not 
a  bar  to  another  indictment  for  the  same  of- 
fense. Com.  V.  Wheeler,  2  Mass.  172;  Lind- 
say V.  Com.  2  Va.  Cas.  345 ;  Wortham  v. 
Com.  5  Rand.  609 ;  Walton  v.  State,  3  Sneed, 
687. 

15.  But  if,  after  the  juiy  have  been  charged 
with  the  cause,  a  nolle  prosequi  is  entered 
without  the  consent  of  the  defendant,  and 
the  record  shows  no  necessity  for  the  dis- 
charge, the  defendant  cannot  be  put  on  his 
trial  a  second  time  for  the  same  offense. 
Mount  v.  State,  14  Ohio,  295 ;  Reynolds  v. 
State,  3  Kelly,  53 ;  U.  S.  v.  Shoemaker,  2  Mc- 
Lean, 114. 

16.  Discharge  of  jury.  The  arbitrary 
discharge  of  the  jury,  against  the  consent  of 
the  prisoner,  without  any  cause,  and  where 
no  circumstances  exist  calling  for  the  exer- 
cise of  the  discretion  of  the  court,  is  a  bar 
to  his  subsequent  trial  upon  the  same  indict- 
ment. Grant  v.  People,  4  Parker,  527 ;  Ned 
V.  State,  7  Porter,  187 ;  Com.  v.  Cook,  6  Serg. 
&  Rawle,  577. 

17.  But  the  discharge  of  the  jury  by  the 
court  in  a  case  of  manifest  necessity,  such  as 
the  sudden  illness  of  a  juror,  the  illness  of 
the  prisoner,  or  other  urgent  cause,  will  not 
exempt  the  prisoner  from  being  again  put 
upon  trial.  U.  S.  v.  Perez,  9  Wheat.  579 ; 
U.  S.  V.  Haskell,  4  Wash.  C.  C.  402 ;  State  v. 
Hall,  4  Halst.  256;  U.  S.  v.  Shoemaker,  2 
McLean,  114;  Com.  v.  Roby,  12  Pick.  496. 

18.  Separation  of  jury.  Irregularities, 
whereby  a  lawful  verdict  is  prevented,  are 
not  a  bar  to  a  second  trial.  Consequently, 
there  may  be  another  trial  notwithstanding 
the  jury,  after  the  cause  was  submitted  to 
them,  separated  without  authority,  and  with- 
out having  agreed  on  a  verdict.  People  v. 
Reagle,  60  Barb.  527;  contra,  State  v.  Garri- 
gues,  1  Hayw.  276. 

19.  Acquittal   through  error  of  court. 


FORMER  ACQUITTAL  OR   CONVICTION. 


225 


Former  Acquittal. 


An  error  of  the  court  or  jury  in  regarding  as 
material  an  immaterial  variance  between 
the  allegations  and  the  proof,  will  not  ren- 
der the  acquittal  less  available  as  a  bar  to  a 
subsequent  prosecution.  People  v.  Hughes, 
41  Cal.  234. 

20.  When  a  verdict  of  not  guilty  has  been 
rendered  in  favor  of  a  party,  under  a  decision 
of  the  court  that  the  indictment  upon  which 
it  is  rendered  was  insufBcieut  to  sustain  a 
conviction,  yet  if  that  decision  was  wrong, 
and  in  fact  a  conviction  could  have  been 
maintained  under  the  indictment,  such  ver- 
dict and  judgment,  when  pleaded,  will  pro- 
tect the  party  against  a  second  conviction 
for  the  same  offense.  Black  v.  State,  36 
Ga.  447,  Walker,  J.,  dissenting. 

21.  Where  there  is  no  punishment.  The 
amendment  of  a  statute  reviving  the  original 
law  for  the  punishment  of  murder,  does  not 
affect  a  prisoner  who  meanwhile  had  ob- 
tained a  judgment  that  the  existing  law  did 
not  authorize  any  punishment;  the  effect  of 
such  judgment  being  equivalent  to  acquittal. 
Hartung  v.  People,  26  N.  T.  167;  s.  c.  28 
K  Y.  400. 

22.  In  case  of  variance.  A  discharge  on 
the  ground  of  a  variance  between  the  indict- 
ment and  proof  is  not  a  bar  to  a  trial  and 
conviction  upon  a  subsequent  indictment  for 
the  same  offense.  2  N.  Y.  R.  S.  701,  §  24; 
Canter  V.  People,!  N.  Y.  Ct.  of  Appeals  Decis. 
305.  But  where  the  defendant  was  tried 
and  acquitted  under  an  indictment  charging 
him  with  forgery  by  the  alteration  of  an  or- 
der drawn  on  the  firm  of  J.  Irwin  &  Co., 
such  acquittal  was  held  a  bar  to  a  second  in- 
dictment for  the  same  forgeiy,  which  de- 
scribed the  firm  as  "John  Irwin  &  Co." 
Durham  v.  People,  4  Scam.  172. 

23.  Acquittal  of  codefendant.  The  ac- 
quittal of  a  codefendant  is  not  a  bar  to  a 
])rosecution  against  the  other  defendant. 
State  V.  McClintock,  1  Iowa,  302. 

24.  Acquittal  of  joint  ofifense.  The  ac- 
quittal of  several  defendants  charged  with 
committing  an  offense  jointly,  will  not  bar  a 
prosecution  against  each  one  charged  with 
part  of  the  same  offense  separately  commit- 
ted by  him.     Com.  v.  MeChord,  2  Dana,  242. 

25.  Acquittal  of  part  of  entire  transac- 

15 


tion.     A.  having  stolen  a  horse,  wagon  and 

harness,  two  indictments  were  found  against 
him,  one  for  stealing  the  horse,  and  the 
other  for  stealing  the  wagon  and  harness. 
Held,  that  a  trial  and  acquittal  on  one  of  the 
indictments  was  a  good  plea  in  bar  against 
the  other.  Fisher  v.  Com.  1  Bush,  Ky.  211, 
28.  Acquittal  on  some  of  several  counts. 
Where  each  count  of  an  indictment  charges 
a  distinct  and  substantive  offense,  and  on 
the  trial  the  defendant  is  acquitted  of  the 
charge  on  either  count,  he  cannot  be  again 
put  in  jeopardy  upon  that  charge.  Esmon 
V.  State,  1  Swan,  14 ;  Campbell  v.  State,  9 
Yerg.  333. 

27.  Where  an  indictment  charges  the  same 
offense  in  different  ways  in  several  counts, 
and  the  defendant  is  acquitted  upon  some 
of  the  counts,  and  convicted  upon  others,  in 
case  of  a  new  trial  he  may  be  tried  on  all 
the  counts.  Lesslie  v.  State,  18  Ohio,  N.  S. 
390. 

28.  After  a  trial  upon  two  coimts  of  an  in- 
dictment, which  results  in  a  disagreement  of 
the  jury,  the  defendant  may  be  tried  on  the 
whole  indictment;  and  it  is  discretionary 
with  the  prosecution  whether  he  shall  be 
tried  again  on  the  whole,  or  any  part  of  the 
charge  at  the  same  tenn  of  the  court.  The 
only  limitation  to  this  discretion  is  that  the 
counts  upon  which  the  disagreement  has 
taken  place,  cannot  be  again  put  to  the 
same  jury.     Com.  v.  Burke,  16  Gray,  32. 

29.  In  case  of  distinct  offenses.  Where 
a  person  at  the  same  time,  and  in  the  same 
transaction,  commits  two  distinct  crimes,  an 
acquittal  of  one  will  not  be  a  bar  to  an  in- 
dictment for  the  other.  State  v.  Standifer, 
5  Porter,  523.  Where,  therefore,  the  pris- 
oner was  a  second  time  indicted  for  the 
same  act  of  shooting  that  was  charged  in  the 
first  indictment,  but  a  different  person  was 
alleged  in  the  second  indictment  to  have 
been  killed,  a  plea  of  former  acquittal  was 
held  bad.     Vaughan  v.    Com.  2  Va.  Cas. 

At  o. 

30.  An  acquittal  under  an  indictment 
charging  the  prisoner  with  mixing  arsenic 
with  flour,  and  causing  it  to  be  administered 
to  A.,  with  intent  to  kill  her,  is  not  a  bar  to 
a  subsequent  indictment,  charging  the  pris- 


226 


FORMER  ACQUITTAL   OR   CONYICTIOK 


Former  Acquittal. 


oiicr  with  the  same  act  of  mixing  the  arsenic 
•and  causing  it  to  be  administered  to  B., 
-with  intent  to  kill  him.  People  v.  Warren, 
1  Parker,  338. 

31.  An  acquittal  of  the  charge  of  larceny 
of  certain  goods  is  not  a  bar  to  an  indict- 
ment for  the  larceny  of  certain  other  goods, 
although  the  last  mentioned  goods  are  of 
such  a  character  that  the  language  of  the 
first  indictment  might  describe  them,  there 
l)eiDg  no  evidence  of  the  identity  of  the 
offenses,  except  the  introduction  of  the  for- 
mer indictment.  Com.  v.  Sutherland,  109 
Mass.  342. 

32.  The  defendant  was  tried  and  acquitted 
under  an  indictment  charging  him  with 
stealing  eight  and  a  half  dollars  from  the 
dwelling-house  of  J.  W.,  belonging  to  J.* 
W.  and  in  his  possession.  But  the  defend- 
ant was  convicted  under  a  second  indict- 
ment charging  him  with  stealing  eight  and 
a  half  dollars,  the  property  of  R.  P.  from 
the  house  of  R.  P.,  the  money  being  in  the 
possession  of  J.  W.  Held,  that  as  the  only 
identity  in  the  two  cases  was  the  amount  of 
money  stolen  and  its  possession,  the  convic- 
tion was  proper.  Morgan  v.  State,  34  Texas, 
677. 

33.  An  acquittal  of  the  prisoner  on  an  in- 
dictment charging  him  with  having  stolen, 
taken  and  carried  away  one  bank  note  of 
the  Planters'  Bank  of  Tennessee,  payable  on 
demand  at  the  Merchants'  and  Traders'  Bank 
of  New  Orleans,  was  held  not  a  bar  to  a 
second  indictment,  charging  him  with  hav- 
ing stolen,  taken  and  carried  away,  one 
bank  note  of  the  Planters'  Bank  of  Tennes- 
see, payable  on  demand  at  the  Mechanics' 
and  Traders'  Bank  of  New  Orleans.  Hite 
V.  State,  9  Yerg.  357. 

34.  A  person  was  indicted  for  stealing  a 
sheep,  the  property  of  A.,  and  acquitted  on 
the  ground  that  the  owner  of  the  property 
was  unknown.  He  was  then  again  indicted 
for  the  same  offense,  the  sheep  being  charged 
to  be  the  property  of  some  one  to  the  jurors 
unknown.  Helcl^  that  the  former  trial  was 
not  a  bar  to  a  conviction  upon  the  second 
indictment.     State  v.  Revels,  Busbee,  200. 

35.  An  acquittal  of  a  prisoner  charged  with 
burning  a  barn,  on  account  of  the  misde- 


scription of  the  name  of  the  owner  of  the 
barn,  was  held  not  to  be  a  bar  to  another 
indictment  wniha  proper  description.  Com. 
V.  Mortimer,  2  Va.  Cas.  325 ;  Com.  v.  Wade, 
17  Pick.  395. 

36.  Where  a  person  was  tried  and  ac- 
quitted for  embezzling  cloth  used  in  making 
overcoats,  it  was  held  no  bar  to  the  trial  of 
a  second  indictment  charging  him  with  em- 
bezzling the  overcoats  which  were  made  of 
the  cloth.     Com.  v.  Clair,  7  Allen,  525. 

37.  In  case  of  larceny.  The  trial  of  an 
indictment  at  common  law  for  larceny  of 
bonds,  and  acquittal,  is  not  a  bar  to  the  trial 
of  a  second  indictment  for  the  felonious  and 
fraudulent  conversion  of  the  same  bonds,  it 
not  being  alleged  or  proved  that  the  defend- 
ant was  not  intrusted  with  the  custody  of 
the  bonds.     Com.  v.  Tenney,  97  Mass.  50. 

38.  An  acquittal  of  larceny  cannot  be 
pleaded  in  bar  to  an  indictment  for  the  same 
offense  charged  as  a  conspiracy  unlawfully 
to  obtain  the  goods.  State  v.  Sias,  17  New 
Hamp.  558. 

39.  Whether  a  person  who  has  been  tried 
under  an  indictment  for  larceny  and  receiv- 
ing stolen  goods,  and  acquitted  of  the  former 
and  convicted  of  the  latter,  can  be  tried 
again  under  a  subsequent  indictment  charg- 
ing him  with  being  an  accessory  before  the 
fact  to  the  stealing  of  the  same  goods — query. 
State  V.  Larkin,  49  New  Hamp.  30. 

40.  An  acquittal  for  stealing  goods  will 
not  bar  a  subsequent  prosecution  for  obtain- 
ing the  same  goods  by  false  pretenses,  al- 
though the  evidence  is  the  same  in  each 
case.     Dominick  v.  State,  40  Ala.  680. 

41.  In  case  of  forgery.  An  acquittal 
under  an  indictment  for  forging  and  utter- 
ing a  false  order  was  held  not  to  be  a  bar  to 
a  subsequent  indictment  for  fraudulently  ob- 
taining store  goods  by  means  of  such  forged 
order.     Com.  v.  Quann,  2  Va.  Cas.  89. 

42.  An  acquittal  for  the  forgery  of  a  cer- 
tiiicate  of  deposit  of  money  in  a  bank,  is 
not  a  bar  to  a  subsequent  indictment  for  an 
attempt  to  obtain  money  from  another  bank 
by  a  forged  letter  inclosing  the  certificate  of 
deposit,  and  requesting  the  amount  to  be 
sent  to  the  writer  of  the  letter.  People  v. 
Ward,  15  Wend.  231.     But  where  a  person 


FORMER  ACQUITTAL   OR   CONVICTION, 


227 


Former  Acquittal. 


Former  Conviction. 


having  been  tried  and  acquitted  for  having 
in  possession  a  counterfeit  plate,  pleaded 
the  acquittal  in  bar  of  second  indictment 
charging  him  with  the  possession  of  another 
counterfeit  plate,  and  it  appeared  that  both 
involved  but  a  single  act  of  possession,  a 
nolle  prosequi  was  entered  on  the  second  in- 
dictment. U.  S.  V.  Miner,  11  Blatchf.  511; 
«.  c.  2  Green's  Crim.  Reps.  246. 

43.  A.  was  indic£ed  for  forging  the  follow- 
ing instrument  and  uttering  it  to  B.  as  the 
act  of  B.'s  mother:  ''  I  have  bought  of  A. 
two  frocks  for  $7 ;  ask  your  employers  for 
the  money  and  let  him  have  it."  (Signed) 
"Mrs.  B."'  Held,  that  an  acquittal  was  a  bar 
to  an  indictment  aftenvard  found  for  obtain- 
ing the  money  from  B.  by  the  false  pretense 
that  the  instrument  was  true.  People  v. 
Krummer,   4  Parker,  217. 

44.  In  case  of  seduction.  An  acquittal 
for  seduction  is  a  bar  to  a  second  indict- 
ment for  fornication  growing  out  of  the  same 
act.     Dinkey  v.  Com.  17  Penn.  St.  126. 

3.  Former  conviction. 

45.  Where  the  proceedings  were  illegal. 
A  former  conviction  to  be  an  available  de- 
fense to  another  prosecution,  must  have  been 
lawful.  If  the  court  had  not  jurisdiction, 
or  the  proceedings  were  illegal,  or  the  indict- 
ment invalid,  tlie  conviction  will  be  treated 
fis  a  nullity.  State  v.  Spencer,  10  Humph. 
431 ;  State  v.  Ray,  Rice,  1 ;  Com.  v.  Goddard, 
13  Mass.  455;  State  v.  Odell,  4  Blackf.  156; 
Com.  V.  Peters,  12  Mete.  887;  People  v. 
Barrett,  1  Johns.  66;  Com.  v.  Roby,  12  Pick. 
496. 

46.  A  person  convicted  at  a  court  not 
duly  authorized  by  law,  may  be  lawfully 
tried,  precisely  as  if  no  such  proceeding  had 
ever  taken  place.  Dunn  v.  State,  2  Ark.  229 ; 
State  V.  Payne,  4  Mo.  376 ;  Rector  v.  State, 
1  Eng.  187. 

47.  In  Tennessee,  under  the  statute  (of 
Jan.  11,  1848),  a  former  trial  and  conviction 
for  an  assault  and  battery  before  a  justice  of 
the  peace,  was  held  to  be  a  bar  to  a  subse- 
quent indictment  for  the  same  offense,  even 
if  the  act  were  unconstitutional.  McGinnis 
V.  State,  9  Humph,  43.  But  if  an  illegal  fine 
was  imposed,  the  defendant  might  be  in- 


dicted for  the  same  offense.    State  v.  Atkin- 
son, 9  Humph.  677. 

48.  If  a  person  be  tried  on  a  charge  of 
larceny,  and  convicted,  and  perform  the 
sentence,  such  conviction  and  performance 
of  the  sentence,  will  bar  an  indictment  for 
the  same  offense,  although  the  proceedings 
were  erroneous,  and  might  have  been  set 
aside.     Com.  v.  Loud,  3  Mete.  328. 

49.  Conviction  obtained  by  fraud.  Where 
a  person  having  been  summoned  to  attend 
before  the  grand  jury,  to  testify  against  an- 
other for  selling  spirituous  liquors,  the  day 
before  he  was  so  to  appear,  went  before  a 
justice  of  the  peace,  and  made  a  complaint 
for  the  same  offense,  upon  which  the  defend- 
ant pleaded  guilty  and  was  fined  by  the 
justice  after  hearing  the  evidence;  it  was 
held  that  these  proceedings  before  the 
justice,  being  a  fraud,  were  not  a  bar  to  an 
indictment  for  the  same  ofiense.  State  v. 
Lowry,  1  Swan,  34. 

50.  In  North  Carolina,  an  indictment  for 
assault  and  battery  having  been  found  in  the 
Superior  Court  against  the  defendant,  pend- 
ing the  same,  and  before  his  arrest,  he  caused 
himself  to  be  indicted  for  the  same  offense 
in  the  County  Court,  and  there  voluntarily 
submitted  and  was  fined ;  it  was  held  that 
the  conviction  in  the  County  Court  was  a 
bar  to  the  indictment  in  the  Superior  Court. 
State  V.  Casey,  Busbee,  209.  But  in  Massa- 
chusetts, it  has  been  held  that  if  a  person  is 
convicted  for  assault  and  battery  before  a 
justice  of  the  peace  on  his  own  confession, 
and  fined,  it  is  no  bar  to  an  indictment  for 
the  same  ofiense.  Com.  v.  Alderman,  4  Mass. 
477.  And  the  same  in  New  Hampshire, 
State  V.  Little,  1  New  Hamp.  257 ;  and  Vir- 
ginia, Com.  V.  Jackson,  2  Va.  Cas.  501. 
Likewise  in  Tennessee,  State  v.  Colvin,  11 
Humph.  599.  But  see  Com.  v.  Dascom,  111 
Mass.  404. 

51.  In  Missouri,  the  defendant  having 
committed  an  assault  and  battery  went  be- 
fore a  justice  and  instituted  proceedings 
against  himself,  and  was  fined  three  dollars 
and  costs.  Afterward  the  injured  party 
caused  him  to  be  prosecuted  for  the  same 
offense.  Held  that  the  former  conviction 
was  not  a  bar,  it  being  apjiarent  that  the 


228 


FORMER  ACQUITTAL   OK   CO^YICTION. 


Former  Conviction. 


first  prosecution  was  a  mere  sham.     State  v. 
Cole,  48  Mo.  70. 

52.  Improper  dismissal  of  indictment. 
Tlie  prisoner  having  been  tried  and  con- 
victed of  forgery,  took  exceptions  to  the 
charge  of  the  judge  to  the  jury.  The  mat- 
ter was  then  continued,  and  marked  "low" 
upon  the  docket  of  that  term.  At  the  sue- 1 
cceding  term  the  defendant,  by  leave  of} 
court,  withdrew  his  exceptions,  and  the  at- 
torney of  the  State  suggesting  he  wouhl  not 
further  prosecute  the  indictment,  the  court 
ordered  it  dismissed.  At  a  subsequent  term 
of  the  court  the  defendant  was  again  in- 
dicted for  forgeiy,  and  the  allegations  were 
in  all  respects  similar  to  those  in  the  former 
indictment.  Held  that  the  plea  of  autefois 
convict  was  good.  State  v.  Elden,  41  Maine, 
165. 

53.  Insufficient  verdict.  Where  the  ver- 
dict is  insulficient  to  sustain  a  conviction, 
the  former  trial  cannot  be  opposed  in  bar  of 
a  second  prosecution.  State  v.  Ritchie,  3 
La.  An.  715.  The  prisoner  having  been 
found  "  guilty  of  forging  a  receipt  for  the 
use  of  H.  P.,  under  an  indictment  charging 
it  to  have  been  for  the  use  of  H.  B.,"  the 
verdict  was  abandoned.  Held  on  a  second 
indictment  charging  as  the  jury  found  on 
the  first,  that  the  former  discharge  could 
not  be  pleaded  in  bar.  State  v.  Huffman, 
Addis.  140. 

54.  Arrest  of  judgment.  If  after  con- 
viction the  judgment  is  arrested,  the  pro- 
ceeding set  aside,  and  the  prisoner  dis- 
charged, he  cannot  be  considered  to  have 
been  legally  in  jeopardy,  and  cannot  plead 
the  conviction  in  bar  to  a  subsequent  indict- 
ment.    Gerard  v.  People,  3  Scam.  363. 

55.  But  if  after  a  conviction  on  a  valid 
indictment,  judgment  is  erroneously  arrested, 
it  is  a  bar  to  a  subsequent  prosecution.  The 
judgment  of  discharge  so  made  may,  how- 
ever, be  reversed  on  appeal,  and  in  that 
case  the  former  judgment  will  be  enforced 
against  the  prisoner.  State  v.  Norvell,  2 
Yerg.  24. 

56.  Improper  reversal  of  judgment. 
Where  the  judgment  is  reversed  on  the 
ground  alone  that  a  wrong  judgment  was 
given  upon  a  lawful  and  regular  trial  and 


conviction,  the  prisoner  cannot  constitution- 
ally be  tried  again.  Shepherd  v.  People,  2.> 
N.  Y.  406,  Davies,  Smith  and  Gould,  JJ., 
dissenting.  But  see  Ratzky  v.  People,  29 
N.  Y.  124,  and  McKee  v.  People,  32  lb.  239, 
referring  to  a  special  statute  where  this  is 
now  permitted. 

57.  Where  on  a  trial  in  the  Court  of  Ses- 
sions, the  offense  charged  in  the  indictment 
was  an  assault  and  battery  with  a  deadly 
weapon  with  intent  to  kill,  and  the  jury 
found  the  prisoner  "  guilty  of  the  crime  of 
assault  and  battery  with  intent  to  kill,"  and 
the  judgment  was  reversed  by  the  Supreme 
Court  on  the  ground  that  the  verdict  was 
for  simple  assault  and  battery,  it  was  held 
that  the  latter  court  could  neither  give  a 
new  judgment  nor  send  the  case  back  for  a 
proper  judgment,  but  that  the  reversal  was 
final.     O'Leary  v.  People,  4  Parker,  187. 

58.  "Where  there  are  several  indict- 
ments. Where  commissioners  are  liable  to 
indictment  for  not  keeping  the  streets  of  a 
town  in  repair,  if  two  or  more  of  the  streets 
of  the  town  are  out  of  repair  at  the  same 
time,  and  several  indictments  are  found 
therefor,  a  conviction  on  one  of  such  indict- 
ments is  a  bar  to  the  rest.  State  v.  Com- 
missioners, 2  Murphy,  371. 

59.  Two  indictments  having  been  found 
against  a  person  for  passing  counterfeit  bank , 
bills,  he  demanded  his  trial  on  both,  but 
was  tried  only  on  one,  convicted  and  sen- 
tenced to  be  hanged,  but  was  pardoned  by 
the  governor,  and  again  arrested  on  the 
second  indictment.  Held  that  the  prisoner 
was  entitled  to  his  discharge.  State  v.  Stal- 
naker,  2  Brev.  44. 

60.  A  conviction  on  one  of  several  infor- 
mations for  having  several  forged  bills  in 
possession  is  a  bar  to  a  subsequent  informa- 
tion founded  on  the  jjossession  of  any  part 
of  the  same  parcel  of  bills.  State  v.  Ben- 
ham,  7  Conn.  414. 

61.  Must  be  for  same  offense.  A  con- 
viction or  acquittal,  to  be  a  bar  to  another 
prosecution,  must  be  for  the  same  offense. 
Where  a  person  was  convicted  for  advising 

1  the  slave  of  another  person  to  run  away,  it 
was  held  no  bar  to  another  indictment  for  a 
similar  offense  committed  at  the  same  time, 


FORMER  ACQUITTAL   OR   CONVICTION. 


229 


Former  Conviction. 


but  with  reference  to  another  slave.     Smith 
V.  Com.  7  Gratt.  593. 

62.  Where  there  has  been  a  conviction  for 
burglary,  a  plea  of  autrefois  convict  is  a  good 
answer  and  defense  to  a  subsequent  indict- 
ment committed  at  the  same  time  and  by 
means  of  the  burglary,  it  being  all  the  same 
felony,  and  the  lesser  being  merged  and 
satisfied  in  the  conviction  and  punishment 
of  the  greater.  People  v.  Smith,  57  Barb. 
46 ;  State  v.  Lewis,  2  Hawks,  98.  But  in 
such  case,  an  acquittal  of  the  larceny  will 
not  operate  in  bar  of  another  trial  for  the 
burglary.     Copenhaveu  v.  State,  15  Ga.  264. 

63.  Where  a  person  was  convicted  of 
arson,  it  was  held  that  such  conviction  was 
a  bar  to  an  indictment  for  murder,  which 
was  a  consequence  of  the  arson.  State  v. 
Cooper,  1  Green,  361. 

64.  Where  two  persons  are  injured  by  the 
same  assault  and  battery,  and  the  defendant 
has  been  legally  convicted  for  the  assault 
and  battery  committed  on  one  of  them,  it 
will  be  a  bar  to  an  indictment  for  the  assault 
and  battery  committed  on  the  other.  State 
V.  Damon,  2  Tyler,  387. 

65.  A  fine  for  a  breach  of  the  peace  is  a 
bar  to  a  subsequent  indictment  against  the 
same  party  for  an  assault  and  battery,  in 
which  the  breach  of  the  peace  for  which  he 
was  so  fined  had  been  committed.  Com.  v. 
Miller,  5  Dana,  320. 

66.  A  conviction  for  an  affray,  is  a  bar  to 
a  subsequent  prosecution  for  an  assault  and 
battery  founded  on  the  same  transaction. 
Fritz  V.  State,  40  Ind.  18. 

67.  A  conviction  upon  an  indictment  for 
an  attempt  to  commit  a  rape  is  a  bar  to  an 
indictment  for  rape.  State  v.  Shepard,  7 
Conn.  56. 

68.  A  conviction  for  a  riot  at  a  religious 
meeting  will  bar  an  indictment  for  dis- 
turbing the  meeting  by  the  same  acts.  State 
V.  Townsend,  2  Harring.  543. 

69.  A  conviction  for  horse  racing  may  be 
pleaded  in  bar  to  an  indictment  for  betting 
on  the  same  race.  Fiddler  v.  State,  7 
Humph.  508. 

70.  Convictionof  lesser  offense.  Where  a 
prisoner,  in  committing  a  felony  not  capital, 
at  the  same  time   intentionally  commits  a 


capital  felony,  if  the  State  thinks  proper  to 
prosecute  for  the  lesser  offense,  a  conviction 
thereof  will  operate  as  a  bar  to  an  indict-  '^ 
ment  for  the  capital  oflense.    State  v.  Cooper, 
1  Green,  362. 

71.  Where  a  person  has  been  tried  for 
murder,  and  convicted  of  a  lesser  grade  of 
homicide,  he  cannot  be  again  tried  for  the 
higher  crime.  State  v.  Martin,  30  Wis.  216. 
Therefore  where  a  person  having  been  put 
upon  his  trial  for  murder  is  found  guilty  of 
murder  in  the  second  degree,  and  a  new  trial 
granted,  he  cannot  be  tried  again  for  murder 
in  the  first  degree,  but  only  .for  murder  in 
the  second  degree.  State  v.  Ross,  29  Mo. 
33,  Scott,  J.,  dissenting;  Clem  v.  State, 
42  Ind.  420;  s.  c.  2  Green's  Crim.  Reps. 
687. 

72.  The  defendant  having  been  found 
guilty  of  manslaughter  under  an  indictment 
for  murder,  the  verdict  was  on  his  motion 
set  aside.  Held  that  although  the  prisoner 
could  not  on  a  second  trial  be  compelled  to 
answer  to  the  charge  of  murder,  yet  that  he 
might  be  tried  and  convicted  under  the 
same  indictment  of  manslaughter.  People 
V.  Gilmore,  4  Cal.  376;  Slaughter  v.  State, 
6  Humph.  410  ;  State  v.  Desmond,  5  La. 
An.  398;  State  v.  Brette,  6  lb.  658.  On 
such  second  trial,  it  is  proper  for  the  court 
to  instruct  the  jury  that  if  they  believe 
from  the  evidence  that  the  defendant  was 
guilty  of  murder,  that  will  not  justify  them 
in  acquitting  him  of  manslaughter.  Bar- 
nett  V.  People,  54  111.  825. 

73.  In  Ohio,  where  on  a  trial  for  murder, 
the  defendant  is  found  guilty  of  an  inferior 
degree  of  homicide,  the  legal  effect  of  grant- 
ing a  new  trial  is  to  set  aside  the  whole 
verdict,  and  leave  the  case  for  retrial  upon 
the  same  issues  on  which  it  was  first  tried. 
State  v.  Behimer,  20  Ohio,  N.  S.  572.  The 
practice  is  the  same  in  Kansas.  State  v. 
McCord,  8  Kansas,  232;  s.  c.  1  Green's 
Crim.  Reps.  400. 

74.  Where  the  same  act  constitutes 
distinct  offenses.  A  person  may  be  twice 
punished  for  the  same  act,  when  the  act  is 
of  such  a  character  as  to  constitute  two 
distinct  crimes;  as  for  keeping  a  drinking 
house  and  tippling  shop,  and  also  for  being 


230 


FOEMER  ACQUITTAL  OR  CONVICTION. 


Former  Conviction. 


a  common  seller  of  intoxicating  liquors, 
although  the  same  illegal  acts  contribute  to 
make  up  each  offense.  State  v.  Inness,  53 
Maine,  530.  In  Maine,  a  conviction  for 
being  a  common  seller  of  spirituous  liquors 
is  not  a  defense  to  a  complaint  for  a  single 
act  of  sale,  though  such  act  be  within  the 
time  embraced  in  the  indictment.  State  v. 
Maher,  35  Maine,  225 ;  State  v.  Coombs,  32 
lb.  529.  The  contrary  has  been  held  in 
Vermont.  State  v.  Nutt,  28  Vt.  598.  In 
Massachusetts,  a  person  may  be  tried  for 
maintaining  a  tenement  for  the  illegal  keep- 
ing and  sale  of  intoxicating  liquors,  al- 
though he  has  previously  been  tried  and 
convicted  for  keeping  the  liquors  with 
intent  to  sell  them.  Com.  v.  McShane.  110 
Mass.  502 ;  s.  c.  2  Green's  Crim.  Reps.  279. 

75.  Neither  a  conviction  nor  pardon  for  a 
particular  offense  is  a  bar  to  a  trial  for  any 
other  distinct  offense.  Hawkins  v.  State,  1 
Porter,  475.  In  South  Carolina  it  was  held 
that  a  conviction  for  a  subsequent  offense 
which  was  pardoned  by  the  governor,  was 
not  a  bar  to  the  prosecution  of  any  other 
offense  not  mentioned  in  the  pardon.  State 
V.  McCarty,  1  Bay,  334. 

76.  A  conviction  for  assault  and  battery 
will  not  bar  a  trial  for  an  assault  with  inten- 
tion to  do  great  bodily  injury.  State  v.  Fos- 
ter, 33  Iowa,  525.  Or  for  an  assault  with  a 
deadly  weapon.  Severin  v.  People.  87  111. 
414.  And  see  Freeland  v.  People,  16  lb.  380. 
So  a  conviction  for  assault  and  battery  with 
intention  to  murder  is  not  a  bar  to  an  indict- 
ment for  murder.  Com.  v.  Roby,  12  Pick. 
496.  And  a  conviction  for  assault  and  bat- 
tery is  not  a  bar  to  a  subsequent  indictment 
for  manslaughter,  when  the  person  assaulted 
afterward  dies  of  tlie  wounds  caused  by  the 
blows.     Burns  v.  People,  1  Parker,  182. 

77.  Where  the  commission  of  an  assault 
and  battery  is  incidental  to  a  riot,  a  convic- 
tion for  the  one  will  not  bar  a  prosecution 
for  the  other.  Wininger  v.  State,  13  Ind. 
540 ;  Scott  V.  U.  S.  1  Morris,  142.  But  A., 
having  been  convicted  under  an  indictment 
for  an  assault  and  battery  upon  B.,  a  second 
indictment  was  found  against  him  and  others 
for  riot  and  beating  the  said  B.  Held  that 
the  former  conviction  was  a  bar  to  the  sec- 


ond indictment.  Com.  v.  Kinney,  2  Va.. 
Cas.  139. 

78.  A  conviction  for  an  afiray  will  bar  a 
prosecution  for  an  assault  and  battery  com- 
mitted during  the  aflray.  Fritz  v.  State,  40  ; 
Ind.  18 ;  s.  c.  1  Green's  Crim.  Reps.  554.  But  -tt 
where  on  the  trial  of  an  indictment  for  as- 
sault and  battery  it  appeared  that  the  de- 
fendant with  others  had  been  convicted  of 

an  ailray,  and  that  the  assault  and  batteiy 
was  committed  on  a  female  while  endeavor- 
ing to  rescue  her  son  from  the  violence  of  the 
affrayers,  it  was  held  that  the  conviction  for 
the  affray  was  not  a  bar  to  the  present  prose- 
cution.    State  V.  Parish,  8  Rich.  322. 

79.  A  fine  imposed  for  contempt  in  com.- 
mitting  an  assault  and  battery  in  the  pres- 
ence of  the  court,  is  not  a  ground  for  a  plea 
of  former  conviction  to  an  indictment  for  the 
same  assault  and  battery.  State  v.  Yancey,. 
1  Car.  Law  Rep.  519. 

80.  A  conviction  or  acquittal  of  larceny 
is  not  a  bar  to  a  subsequent  prosecution  for 
receiving,  concealing,  and  aiding  in  the  con- 
cealment of  the  stolen  goods.  Foster  v. 
State,  39  Ala.  229. 

81.  A  conviction  for  larceny  in  a  building 
cannot  be  pleaded  in  bar  to  a  charge  of  burg- 
lariously breaking  and  entering  the  build- 
ing; the  former  being  a  distinct  offense,  al- 
though the  theft  ensued  upon  the  breaking. 
Wilson  V.  State,  24  Conn.  57 ;  People  v.  Mc- 
Closkey,  5  Parker,  57. 

82.  A  conviction  upon  an  indictment  for 
lewd  and  lascivious  cohabitation,  is  not  a 
bar  to  a  trial  for  adultery.  Maurice  v.  Com. 
108  Mass.  433. 

83.  Need  not  be  judgment.  There  need 
not  be  a  judgment  in  order  to  render  the 
prisoner's  plea  in  bar  an  answer  to  a  second 
indictment  for  the  same  offense,  the  verdict 
being  sufBcient  for  that  purjjose.  Mount  v.. 
State,  14  Ohio,  295;  State  v.  Norvell,  2 
Yerg.  24. 

84.  But  in  Massachusetts,  a  verdict  against 
the  defendant,  on  which  no  judgment  has 
been  rendered,  on  the  trial  of  an  indictment 
for  a  nuisance  under  the  statute  (of  1855,  ch. 
405),  in  maintaining  a  building  for  the  un- 
lawful sale  of  spirituous  liquors,  is  not  a  bar 
to  the  trial  of  an  indictment  for  beina:  a  com- 


FORMER  ACQUITTAL   OR   CONVICTION. 


231 


Former  Conviction. 


Plea. 


Evidence. 


men  seller  of  spirituous  liquors  at  the  same 
time  and  place.    Com.  v.  Lahy,  8  Gray,  4.59. 

85.  Improper  or  insufficient  verdict. 
Where  the  defendant  may  be  convicted 
upon  the  indictment,  of  either  robbery  in 
the  first  degree  or  grand  larceny,  but  is  con- 
victed of  robbery  in  the  second  degree,  the 
verdict  operates  as  an  acquittal.  State  v. 
Branson,  55  Mo.  6-3;  s.  c.  2  Green's  Crim. 
Reps.  608  ;  State  v.  Pitts,  57  Mo.  85. 

86.  Where  a  judgment  of  conviction  is 
reversed  on  the  motion  of  the  prisoner,  he 
may  be  tried  again,  although  the  ground  of 
reversal  is  the  insufficiency  of  the  verdict, 
and  although  he  has  already  suflered  a  por- 
tion of  the  prescribed  term  of  imprisonment. 
Turner  v.  State,  40  Ala.  21 ;  Waller  v.  State, 
lb.  325;  JeflFries  v.  State,  lb.  381. 

4.  Plea. 

87.  At  common  law.     By  the  common 

law,  the  plea  of  autrefois  convict  implies 
merely  a  regular  trial,  and  verdict  of  guilty, 
or  a  confession  upon  a  sufficient  indictment. 
Shepherd  v.  People,  25  N.  Y.  406. 

88.  What  to  contain.  A  plea  of  former 
acquittal  or  conviction,  must  set  out  in  full 
the  former  indictment  and  conviction  or  ac- 
quittal, allege  the  identity  of  the  prisoner 
and  of  the  oifenses  charged  in  the  two  in- 
dictments, and  show  that  the  court  had  ju- 
risdiction at  the  time  of  the  former  trial,  and 
that  the  merits  of  the  charge  were  then  in- 
vestigated. Henry  v.  State,  33  Ala.  389; 
Foster  v.  State,  29  lb.  229 ;  Lyman  v.  State, 
47  lb.  686;  State  v.  Hodgkins,  42  New 
Ilamp.  474  ;  Crocker  v.  State,  47  Ga.  568; 
Wortham  v.  Com.  5  Rand.  669  ;  McQuoid  v. 
People,  3  Gilman,  76 ;  Clem  v.  State,  42  Ind. 
420 ;  s.  c.  2  Green's  Crim.  Reps.  687. 

89.  In  considering  the  identity  of  the 
ofienses,  it  must  appear  by  the  plea,  that  the 
offense  charged  in  both  cases  was  the  same 
in  law  and  fact.  The  plea  will  be  vicious  if 
the  offenses  charged  in  the  two  indictments 
be  distinct  in  point  of  law,  however  nearly 
they  may  be  connected  in  fact.  An  acquittal 
for  a  felony  is  no  bar  to  an  indictment  for  a 
misdemeanor;  and  an  acquittal  for  a  misde- 
meanor is  no  bar  to  an  indictment  for  a 
felony.     Tlierefore,  a  plea  to  an  indictment 


for  rape,  that  the  defendant  has  already  been 
convicted  of  assault  and  battery  for  the  same 
offense,  is  bad.  People  v.  Saunders,  4 
Parker,  196. 

90.  Demurrer  to.  When  the  attorney  for 
the  prosecution  demurs  to  a  plea  of  former 
acquittal  or  conviction,  he  thereby  admits 
the  existence  of  the  record  of  such  former 
acquittal  or  conviction.  Com.  v.  Myer?,  1 
Va.  Cas.  188.  When  a  demurrer  to  a  plea 
of  former  conviction  is  sustained,  the  judg- 
ment should  be  that  the  defendant  answer 
over.  He  may  then  plead  a  better  plea  of 
former  conviction,  or  not  guilty,  or  both. 
Fulkuer  v.  State,  3  Heisk.  33 ;  s.  c.  1  Green's 
Crim.  Reps.  664. 

91.  Trial.  Where  a  person  is  detained  on 
an  indictment  for  the  murder  of  his  wife, 
the  effect  of  a  former  trial  and  conviction 
for  her  abduction  can  be  considered  only  by 
the  court  that  shall  try  him  for  the  murder, 
and  cannot  be  determined  on  luiheas  corpus. 
People  V.  Ruloff,  3  Parker,  126. 

92.  Where   the  prisoner  pleads   a  former 
conviction  and  also  not  guilty,  he  cannot  be 
tried  on  the  last  plea  until  the  first  has  been 
decided   against  him.     Com.    v.  Merrill,  8" 
Allen,  545;  Com.  v.  Bakeman,  105  Mass.  53. 

93.  The  issue  joined  upon  a  special  plea  of 
a  former  trial  cannot  be  tried  by  the  court 
without  a  jury  by  consent  of  the  prisoner. 
Grant  v.  People,  4  Parker,  527. 

94.  Although  when  there  is  a  plea  of 
former  conviction,  and  also  of  the  general 
issue,  the  trial  of  both  at  the  same  time  is 
irregular,  yet  when  it  is  by  agreement  of  the 
parties,  the  defendant  is  bound  by  the  result. 
Com.  V.  Dascom,  111  Mass.  404. 

5.  Evidence,    fr 

95.  Burden  of  proof.  It  is  incumbent  on 
the  defendant  to  maintain  by  evidence,  his 
plea  of  a  previous  conviction,  and  to  es- 
tablish the  identity  of  the  offense  charged 
with  that  of  which  he  is  convicted.     Com. 

V.  Daley,  4  Gray,  209.     A  former  acquittal       J 
cannot  be  proved  under  the  general  issue,     f 
Com.    V.    Chesley,   107   Mass.    223.     It  has 
been  held  otherwise  as  to  a  former  convic- 
tion.    Danneburg  v.  State,  20  Ind.  181 ;  Lee 
V.  State,  42  lb.  152. 


232  FOKMER   ACQUITTAL  OR   CONVICTIO^^— FUGITIYES. 


Evidence. 


From  Foreign  Country. 


96.  Judgment.  A  previous  judgment  is 
conclusive  evidence  between  the  State  and 
the  defendant  of  all  the  facts  necessarily  ad- 
judicated by  it,  although  it  be  founded  upon 
a  plea  of  guilty,  or  of  nolo  contendere.  State 
V.  Lang,  63  Maine,  215. 

97.  Oral  testimony.  Where  the  record  of 
former  conviction  did  not  clearly  identify 
the  offense  for  which  the  prisoner  had  been 
convicted  with  that  with  which  he  was  aft- 
erward charged,  it  was  held  that  oral  testi- 
mony was  admissible  to  show  whether  the 
acts  were  identical.  Duncan  v.  Com.  6 
Dana,  295.  And  see  Goudy  v.  State,  4 
Blackf.  548. 

98.  On  the  trial  of  an  indictment  for  sell- 
ing spirituous  liquors  without  a  license  on 
the  10th  of  March  and  10th  of  April,  18G0, 
the  defendant  pleaded  in  bar  a  conviction  of 
having  "violated  the  excise  law  "  on  the 
16th  of  April,  1857,  and  on  the  1st  day  of 
April,  1860,  and  on  divers  other  days  be- 
tween those  times  and  the  9th  of  May,  1860. 
The  only  proof  in  sujjport  of  the  plea  was 
the  record  of  the  former  conviction.  Held, 
that  as  the  defendant  had  not  shown  by 
proof  aliunde  that  the  offenses  mentioned 
in  the  record  of  conviction  produced  in 
evidence  were  the  same  offenses  set  forth  in 
the  indictment,  the  record  was  not  a  bar. 
People  V.  Cramer,  5  Parker,  171. 


i^ornicatiou. 


See  Adultery;  Bastardy;  Rape;   Seduc- 
tion. 


JTraub. 


See  False   pretenses. 


i^tgitiucs  from  Justice. 

1.  From  foreign  country. 

2.  From  other  State. 


1.  From  foreign  country. 
1.  "Who  is.     A  person  who  has  been  mere- 


ly charged  or  accused  before  a  magistrate  in 
France  authorized  to  arrest,  is  not  one  ac- 
cused mis  en  accusation  within  the  terms  of 
the  treaty  of  1843,  between  the  United 
States  and  France,  and  he  cannot  be  de- 
manded by  the  French  government  nor  sur- 
rendered by  that  of  the  United  States.  In 
re  Metzger,  1  Barb.  248 ;  1  Parker,  108. 

2.  Right  to  demand  surrender.  The 
United  States  have  never  recognized  the 
right  of  foreign  nations  to  demand  the  sur- 
render of  fugitives  from  justice,  independ- 
ently of  treaty  stipulations.  Matter  of  Fet- 
ter, 3  Zabr.  311 ;  Case  of  Ferreira  Dos 
Santos,  3  Brock.  498. 

3.  Extradition  treaties.  A  treaty  in  fu- 
turo  is  in  the  nature  of  a  contract,  and  the 
courts  cannot  regard  it  until  legislative  ac- 
tion shall  be  had  on  the  subject.  In  re 
Metzger,  supra. 

4.  Construction  of  extradition  treaties  and 
conventions  between  the  United  States  and 
foreign  governments,  as  touching  the  ques- 
tion of  the  jurisdiction  of  the  United  States 
over  crimes  committed  in  foreign  countries. 
I?i  re  Stupp,  13  Blatchf.  501 ;  s.  c.  2  Green's 
Crim.  lieps.  183. 

5.  Extradition  treaties  considered  on  the 
question  whether  they  include  surrender  for 
crimes  committed  prior  to  such  treaties.  In 
re  Giacomo,  12  Blatchf.  391. 

6.  Jurisdiction  in  proceedings  for  extra- 
dition. Authority  to  issue  warrants  for  the 
arrest  of  fugitives,  under  the  tenth  article 
of  the  treaty  between  the  United  States  and 
Great  Britain,  concluded  on  the  ninth  day 
of  August,  1842,  and  under  other  treaties 
between  this  government  and  foreign  gov- 
ernments, is  conferred  by  act  of  Congress 
(of  Aug.  13th,  1848,  eh.  167),  upon  the 
several  judges  of  the  State  courts,  and  upon 
the  justices  of  the  Supreme  Court  and  the 
District  Courts  of  the  United  States,  and  the 
commissioners  appointed  by  the  courts  of 
the  United  States.  In  re  Heilbonn,  1  Parker, 
439. 

7.  A  United  States  commissioner  has  au- 
thority, under  the  act  of  Congress  of  1848, 
ch.  167,  to  entertain  a  complaint  for  the 
extradition  of  a  person  charged  with  crime 
in  a  foreign  country,  without  being  specially 


FUGITIVES  FROM  JUSTICE. 


233 


From  Foreign  Country, 


autborized  or  appointed  by  the  court  to  do 
po.  In  re  Kane,  14  How.  U.  S.  103,  per  Mc- 
Lean, Wayne,  Catron  and  Grier,  J  J. ;  contra, 
Taney,  C.  J.,  Daniel  and  Nelson,  J  J. 

8.  The  judges  and  commissioners  upon 
■whom  the  act  of  Congress  of  1848,  ch.  167, 
confers  jurisdiction  in  jDroceedings  for  the 
extradition  of  persons  charged  with  crime 
in  a  foreign  country,  have  authority  to  en- 
tertain a  complaint  made  for  that  purpose 
by  a  consul  of  Great  Britain,  without  a  pre- 
vious requisition  by  his  government  upon 
the  President  of  the  United  States.  lb. 
jier  McLean,  Wayne,  Catron,  and  Grier,  JJ. ! 
contra,  Taney,  C.  J.,  Daniel  and  Nelson, 
JJ.  But  see  Case  of  Ferreira  Dos  Santos, 
2  Brock.  493. 

9.  Authority  cannot  be  exsrcised  by- 
State.  The  United  States  government  has 
exclusive  authority  to  regulate  and  control 
the  surrender  of  fugitives  from  justice  from 
foreign  countries ;  and  therefore  the  statute 
of  a  State  providing  for  such  surrender  is 
unconstitutional.  People  v.  Curtis,  50  N.  Y. 
321 ;  Holmes  v.  Jennison,  14  Pet.  540 ;  Ex 
pavte  Holmes,  12  Vt.  631. 

10.  A  fugitive  from  a  foreign  country  can- 
not be  arrested  by  a  State  magistrate,  on  the 
accusation  of  a  private  person,  of  having 
committed  murder,  in  order  to  give  the 
executive  of  the  United  States  an  opportu- 
nity to  surrender  him.  Com.  v.  Deacon,  10 
Serg.  &  Rawle,  125. 

11.  What  necessary  to  give  jurisdiction. 
Before  the  court  can  entertain  jurisdiction 
of  proceedings  for  the  apprehension  and 
committal  of  an  alleged  fugitive  from  jus- 
tice, whose  extradition  is  demanded,  there 
must  have  been  a  requisition  by  the  foreign 
government  uj^on  the  government  of  the 
United  States,  and  the  authority  of  the  lat- 
ter obtained  to  arrest  the  fugitive.  Matter 
of  Farez,  7  Abb.  N.  S.  84. 

12.  Whether  a  United  States  commissioner 
can  entertain  prpceedings  for  the  arrest  of  a 
fugitive  from  justice  from  a  foreign  country 
for  the  purpose  of  his  extradition  under  a 
treaty,  until  a  mandate  has  been  granted  by 
the  government  of  tlie  United  States — query. 
In  re  Macdonnell,  11  Biatchf.  79;  s.  c.  1 
Green's  Crim.  Reps.  151. 


13.  Complaint.  The  complaint  upon 
which  a  warrant  of  arrest  is  asked  should 
set  forth  briefly  and  clearly  the  substance  of 
the  offense  charged.  The  complaint  need 
not  be  drawn  with  the  precision  of  an  in- 
dictment ;  but  it  should  set  forth  the  sub- 
stantial and  material  features  of  the  indict- 
ment. In  re  Henrich,5  Biatchf.  414,  per  Ship- 
man,  J.     See  In  re  Farez,  7  lb.  345 ;  lb.  34. 

14.  Warrant.  A  warrant  issued  by  a 
United  States  commissioner  for  the  arrest  of 
a  person  charged  with  crime,  in  order  that 
he  may  be  surrendered  to  a  foreign  govern- 
ment, is  void  unless  it  shows  on  its  face  that 
the  commissioner  has  jurisdiction  to  issue  it, 
and  also  that  a  requisition  has  been  made  by 
the  foreign  government  on  the  United  States, 
and  the  authority  of  the  latter  obtained  to 
make  the  arrest.  In  re  Farez,  7  Biatchf.  34. 
A  general  averment  of  the  commissioner's 
authority  is  sufficient.  lb.  345.  In  describ- 
ing the  offense,  the  warrant  may  pursue  the 
language  of  the  treaty.  In  re  Macdonnell, 
1 1  Biatchf.  79 ;  s.  c.  3  Green's  Crim.  Reps. 
151. 

15.  The  warrant  continues  in  force  after 
the  examination  had  before  the  commissioner 
has  been  set  aside  for  error.  In  re  Farez,  7 
Biatchf.  491 ;  In  re  Macdonnell,  11  lb.  170  ; 
s.  c.  2  Green's  Crim.  Reps.  166. 

16.  Evidence.  The  evidence  to  detain  a 
fugitive  from  justice  in  order  to  surrender 
him  to  a  foreign  government,  must  be  such 
as  would  be  sufficient  to  commit  the  accused 
for  trial,  if  the  offense  had  been  committed 
here.  Matter  of  Washburn,  3  Wheeler's 
Crim.  Cas.  473. 

17.  In  iiroceedings  under  the  act  of  Con- 
gress of  1848,  ch.  167,  for  the  extradition  of 
a  person  charged  with  a  crime  in  Great 
Britain,  proof  that  the  person  who  as  justice 
of  the  peace  took  the  affidavits  of  the  com- 
mission of  the  crime,  and  issued  the  wai'rant 
in  Great  Britain  for  the  arrest  of  the  accused, 
was  accustomed  to  act  as  justice  of  the 
peace,  was  held  to  be  sufficient  prima  facie 
evidence  of  his  authority  to  take  the  affi- 
davits and  issue  the  warrant.  In  re  Kane, 
14  How.  U.  S.  103.  Per  McLean,  Wayne, 
Catron,  and  Grier,  JJ. ;  contra,  Taney,  C.  J., 
Daniel,  and  Nelson,   J  J. 


234 


FUGITIVES   FROM  JUSTICE. 


From  Foreign  Country. 


From  Other  State. 


18.  Adjournment.  In  extradition  cases, 
tlie  commissioner  while  bearing  the  evidence 
may  adjourn  the  proceedings  for  the  pro- 
duction of  further  testimony.  In  re  Mac- 
donnell,  11  Blatchf.79;  s.  c.  2  Green's  Crim. 
Keps.  151. 

19.  Review  of  decision.  The  action  of  a 
United  States  commissioner  committing  a 
fugitive  from  justice  for  surrender  under  an 
extradition  treaty,  may  be  reviewed  by  the 
court  on  a  writ  of  habeas  corpus,  and  a  writ 
of  certiorari ;  and  the  court  will  consider 
the  evidence  on  which  he  rendered  his  de- 
cision. In  re  Henrich,  5  Blatchf.  414.  But 
his  decision  will  not  be  reversed  except  in  a 
case  which  would  justify  a  court  in  granting 
a  new  trial  for  a  verdict  against  evidence. 
lb.  As  to  the  power  of  the  court  to  revise 
the  decision  of  the  commissioner,  see,  how- 
ever, /ft  re  Stupp,  12  Blatchf.  501;  s.  c.  2 
Green's  Crim.  Reps.  182 ;  In  re  Macdonnell, 
11  lb.  170;  s.  c.  2  Green's  Crim.  Reps.  166. 

20.  The  decisions  of  the  commissioner  on 
questions  of  evidence,  cannot  be  reviewed 
on  habeas  corpus  during  the  progress  of  the 
preceedings  before  him.  In  re  Macdonnell, 
11  Blatchf.  79 ;  s.  c.  2  Green's  Crim.  Reps. 
151. 

21.  Proceedings  and  i^ractice  in  the  sur- 
render of  fugitives  from  justice  under  ex- 
tradition treaties.  In  re  Henrich,  5  Blatchf. 
414 ;  In  re  Farez,  7  lb.  345 ;  Ex  parte  Ross,  2 
Bond,  252. 

2.    From  other  State. 

22.  "Who  deemed.  A  person  may  be  a 
fugitive  from  justice  from  another  State, 
who  goes  into  such  State,  commits  a  crime 
there,  and  then  returns  home.  Kingbury's 
Case,  106  Mass.  223. 

23.  U.  S.  Constitution.  The  clause  of  the 
Constitution  of  the  United  States,  which 
directs  the  surrender  of  a  fugitive  from 
justice  upon  the  demand  of  the  executive  of 
the  State  from  which  he  escaped,  contains 
no  grant  of  power,  but  is  the  mere  regulation 
of  an  existing  right.  Matter  of  Fetter,  3 
Zabr.  311. 

24.  The  provisions  of  the  statute  of  Mas- 
sachusetts (R.  S.  ch.  142,  §  8)  for  the  arrest 
of  persons  charged  with  the  commission  of 


offenses  in  other  States,  are  not  contrary  to 
the  Constitution  or  laws  of  the  United 
States.     Com.  v.  Tracy,  5  Mete.  536. 

25.  Need  not  have  been  requisition.  A 
fugitive  from  justice  from  either  of  the 
States  may,  under  the  provision  of  the  Con- 
stitution of  the  United  States  (art.  4,  sec.  2) 
be  arrested  and  detained  for  the  purpose  of 
his  surrender  before  a  requisition  is  actually 
made  upon  the  executive  therefor.  Matter 
of  Fetter,  3  Zabr.  311;  State  v.  Bugine,  4 
Harring.  572. 

26.  A  criminal  fugitive  from  Alabama 
may  be  arrested  in  Louisiana,  or  any  other 
State  to  which  he  may  escape,  through  the 
agency  of  the  judicial  tribunals  of  the  latter 
State,  without  the  order  of  its  governor,  or 
the  demand  of  the  governor  of  Alabama. 
Morrell  v.  Quarks,  35  Ala.  544. 

27.  Arrest  after  letting  to  bail.  Where 
a  requisition  was  made  by  the  governor  of 
Iowa  upon  the  governor  of  Massachusetts, 
for  the  surrender  of  a  fugitive  fi'om  justice, 
and  the  governor  of  the  latter  State  issued  a 
warrant  for  his  arrest  to  an  agent  of  lowa^ 
and  another  warrant  to  a  sheriff,  it  was  l^eld 
that  an  arrest  by  the  sheriff,  and  a  letting  of 
the  fugitive  to  hail  on  habeas  corpus,  did  not 
affect  the  right  of  the  agent  to  make  an  ar- 
rest.    Com.  V.  Hall,  9  Gray,  202. 

28.  Must  be  charge  pending.  To  enable 
a  magistrate  to  arrest  and  examine  an  al- 
leged fugitive  from  justice  from  another 
State,  it  must  be  shown  by  a  complaint  in 
writing  on  oath,  that  a  crime  has  been  com- 
mitted, that  the  accused  has  been  charged 
in  the  other  State  with  the  commission  of 
such  a  crime,  and  that  he  has  fled  there- 
from, and  is  found  here.  An  affidavit  from 
which  it  can  only  be  inferred  that  a  crime 
has  been  committed,  is  not  sufficient.  Mat- 
ter of  Leland,  7  Abb.  N.  S.  64. 

29.  A  mere  requisition  by  the  governor  of 
one  State  upon  the  governor  of  another 
State  for  the  arrest  and  surrender  of  a  per- 
son accused  of  crime,  without  any  authenti- 
cation of  the  charge,  is  not  sufficient  to 
justify  such  arrest  and  imprisonment.  Mat- 
ter of  Rutter,  7  Abb.  N.  S.  67.  But  see 
Kingsbury's  Case,  106  Mass.  223. 

30.  In  Iowa,  to  authorize  the  arrest  of  a 


FUGITIVES   FROM   JUSTICE.— GAMING. 


235 


From  Other  State. 


What  Constitutes. 


fugitive  from  justice  from  another  State,  un- 
der the  statute  (Revision,  §4523), there  must 
be  a  charge  pending  against  the  accused  in 
such  other  State;  and  a  recognizance  for 
his  appearance,  "when  there  is  no  charge 
pending  against  him,  is  void.  State  v.  Huf- 
ford,  28  loTva,  391.  It  is  the  same  in  Cali- 
foi-nia.  Ex  parte  White,  4:0  Ca.\.  iU.  And 
see  Ex  parte  Cubreth,  lb.  436. 

31.  Evidence  required  for  issuing  war- 
rant. To  authorize  a  magistrate  to  issue  a 
warrant  for  the  arrest  and  examination  of 
an  alleged  fugitive  of  justice  from  another 
State,  it  must  be  made  to  appear  to  him,  by 
a  complaint  in  writing  on  oath,  that  a  crime 
has  been  committed  in  the  foreign  State, 
that  the  accused  has  been  charged  in  such 
State  with  the  commission  of  sucli  crime, 
and  that  he  has  fled  from  the  State,  and  is 
here.  These  facts  are  to  be  distinctly  al- 
leged. It  is  not  sufficient  that  they  may  be 
inferred  from  what  is  stated.  Matter  of 
Hay  ward,  1  Sandf.  701. 

32.  An  affidavit  that  A.  has  been  charged 
In  Pennsylvania,  on  the  oath  of  B.,  with 
felony,  viz.,  with  cheating  and  defrauding 
B.  and  others,  residents  of  that  State,  and 
that  he  is  a  fugitive  from  justice  from  that 
State,  is  not  sufficient  to  authorize  the  arrest 
of  A.  here,  for  the  reason  that  the  affidavit 
does  not  show  that  the  alleged  crime  was 
committed  in  Pennsylvania,  or  that  A.  fled 
from  that  State.     lb. 

33.  It  would  be  judicious  in  the  magis- 
trate in  all  such  cases  to  require  an  authen- 
ticated copy  of  the  charge  or  complaint  made 
in  the  foreign  State.     lb. 

34.  In  Indiana,  to  confer  jurisdiction  upon 
a  magistrate  under  the  statute  (R.  S.  1843) 
relative  to  fugitives  from  justice,  it  must  be 
proved  that  the  person  sought  to  be  appre- 
hended, fled  from  the  State  in  which  he  com- 
mitted the  crime,  in  order  to  escape  punish- 
ment for  it.  Degant  v.  Michael,  2  Carter, 
39G. 

35.  "Warrant.  Warrants  issued  by  the 
governor  for  the  arrest  of  fugitives  from  jus- 
tice, must  be  under  the  great  seal  of  the 
State,  and  if  the  impression  of  the  seal  is 
illegible,  the  warrant  will  be  void.  VaJlad 
V.  Sherifl",  11  Mo.  24. 


36.  A  warrant  from  the  governor  of  a  State 
commissioning  an  agent  to  bring  a  criminal 
from  the  State  to  which  he  has  fled  into  the 
State  having  jurisdiction  of  the  ofiense,  re- 
citing that  he  has  made  a  lawful  requisition 
for  the  surrender  of  the  fugitive,  is  prima 
facie  evidence  that  all  legal  requisites  have 
been  complied  with,  necessary  for  the  protec- 
tion of  the  agent.  The  word  "  take  "  in  such 
a  warrant  is  synonymous  with  "arrest." 
Com.  V.  Hall,  9  Gray,  262. 

37.  Review.  The  correct  mode  of  re- 
viewing the  decision  of  a  State  judge  made 
in  such  case  is  by  appeal  to  the  Supreme 
Court  of  the  State ;  from  there  to  the  Court 
of  Appeals ;  and  thence  to  the  Supreme  Court 
of  the  United  States.  In  re  Heilbonn,  1 
Parker,  429. 

38.  Stay  of  proceedings.  Where  ',the 
fugitive  is  remanded,  the  court  will  not 
grant  a  stay  of  proceedings  on  the  prosecu- 
tion of  a  writ  of  error.  Matter  of  Clark,  9 
Wend.  212. 

39.  Proceedings  and  practice  in  the  de- 
mand and  surrender  of  a  fugitive  from  jus- 
tice escaping  into  another  State.  People  v. 
Brady,  56  N.  Y.  182. 

40.  Reward.  One  who  asks  and  receives 
from  a  sheriff  a  warrant  and  special  author- 
ity to  arrest  a  fugitive  from  justice,  and 
who  executes  the  warrant,  and  delivers  the 
accused  to  the  sheriff,  is  not  entitled  to  the 
reward  offered  by  the  governor  for  the  arrest 
of  such  fugitive.  Malpass  v.  Caldwell,  70 
N.  C.  130. 

See  Habeas  corpus. 


1.  What  constitutes. 

2.  Indictment. 

3.  Evidence. 


1.  What  constitutes. 

1.  In  general.  A  contest  pursuant  to  a 
bet  or  wager  which  is  to  be  determined  by 
the  result,  is  gaming.  State  v.  Smith,  1 
Meigs,  99;  Bagley  v.  State,  1  Humph.  486. 

2.  To  throw  dice,  or  play  at  any  game  of 
chance  or  skill,  on  the  issue  of  which  money 


230 


GAMING. 


What  Constitutes. 


or  propcrtj'  depends,  is  illegal  gaming. 
Com.  V.  Gourdicr,  14  Gray,  390;  Com.  v. 
Taylor,  lb.  26. 

3.  Iq  New  Hampshire,  where  the  indict- 
ment charged  that  the  defendant  kept  a 
gaming  place  "for  money,  hire,  gain,  and 
reward,"  and  the  evidence  showed  that  it 
was  customary  for  the  party  losing  to  pay 
for  the  use  of  the  table  one  shilling  a  game, 
it  was  held  tliat  this  was  a  gaming  for 
money  within  the  statute.  State  v.  Leigh- 
ton,  3  Foster,  167. 

4.  In  Illinois,  though  the  articles  played 
for  may  be  intrinsically  valueless,  yet  if  they 
are  understood  to  represent  value,  and  are 
such  that  the  winner  can  in  fact,  without 
any  violation  of  the  law,  obtain  value  for 
them,  they  are  within  the  statute  against 
gaming.     Gibbons  v.  People,  33  111.  443. 

5.  In  Missouri,  the  keeping  of  a  lotto 
table,  at  which  the  game  is  played  for 
money,  is  an  indictable  offense.  Lowry  v. 
State,  1  Mo.  722.  In  Arkansas,  the  same 
has  been  held  as  to  the  game  known  as 
"  TcenoP  Portis  v.  State,  27  Ark.  360 :  s.  c.  1 
Green's  Crim.  Reps.  325.  But  the  latter  game 
is  not  a  lottery  within  the  meaning  of  the 
internal  revenue  laws.  U.  S.  v.  Hornibrook, 
2  Dillon,  229  ;  s.  o.  1  Green's  Crim.  Reps.  328. 

6.  Throwing  dice  to  determine  who  shall 
pay  for  whisky  or  treats  is  gaming  within 
the  meaning  of  the  statute  of  Kentucky. 
McDaniel  v.  Com.  6  Bush,  Ky.  326. 

7.  A  pack  of  cards  is  not  a  gambling  de- 
vice within  the  meaning  of  the  statute  of 
Kansas.     State  v.  Hardin,  1  Kansas,  474. 

8.  A  "  gift  enterprise  "  is  gaming  within 
the  statute  of  Tennessee.  Bell  v.  State,  5 
Sneed,  507.  And  the  same  is  true  as  to 
betting  on  the  result  of  a  cock  fight.  John- 
eon  V.  State,  4  lb.  614. 

9.  In  Tennessee,  the  sale  of  j^ackages  of 
prize  candy  is  indictable  as  gaming.  Eu- 
banks  v.  State,  3  Heisk.  488  ;  s.  c.  1  Green's 
Crim.  Reps.  323. 

10.  In  Indiana,  it  is  an  indictable  offense 
to  win  any  sum  of  money,  however  small,  at 
a  game  of  cards.  State  v.  Albertson,  2 
Blackf.  251. 

11.  In  Massachusetts,  playing  at  bowls  is 
cinlawful  vmder   the   statute   (R.  S.  ch.  50, 


§  17).     Com.  V.  Stowell,  9  Mete.  572;  Com. 
V.  Drew,  3  Cush.  279. 

12.  In  New  Jersey,  bowling  alleys  con- 
nected with  hotels  are  unlawful,  though  the 
players  only  risk  the  price  of  the  game. 
State  V.  Records,  4  Har.  554. 

13.  In  Massachusetts,  cock  fighting  has 
been  held  unlawful,  both  under  the  statute 
and  at  common  law.  Com.  v.  Tilton,  8  Mete. 
232. 

14.  Playing  once  is  gaming.  The  offense 
of  gaming  may  be  committed  by  playing  a 
single  game.  Cameron  v.  State,  15  Ala.  383 ; 
Swallow  V.  State,  20  lb.  30 ;  Buck  v.  State, 
1  McCook,  61.  But  see  West  v.  Com.  3  J.  J. 
Marsh.  641. 

15.  Setting  up  table.  The  setting  up  of 
a  gaming  table  consists  in  providing  the 
essentials  for  the  game,  and  in  proposing  to 
play.  There  need  not  be  a  table  in  the 
literal  sense,  or  money  or  jiroperty  staked  on 
the  game  ;  but  credit  may  be  substituted.  A 
game  must  however  be  played,  and  some- 
thing be  bet.  Com.  v.  Burns,  4  J.  J.  Marsh. 
177. 

16.  In  Virginia,  where  a  billiard  table  was 
kept  for  a  stipulated  compensation  per 
game,  it  was  held  that  the  owner  was  liable 
to  indictment,  although  he  did  not  jilay  on 
it  himself  for  money,  or  permit  others  to  do 
so.     Ward's  Case,  3  Leigh,  743. 

17.  In  Kentucky,  the  setting  uji  of  a 
gaming  table,  at  which  money  or  any  other 
thing  shall  be  bet,  is  a  specific  offense,  and 
the  keeping  of  such  table  may,  if  there  be 
betting  against  it,  be  another  offense,  and 
keeping  a  bank,  and  either  inducing  or  per- 
mitting any  person  to  bet  against  it,  a  third 
offense.     Com.  v.  Burns,  4  J.  J.  Marsh.  177. 

18.  To  constitute  a  violation  of  the  statute 
of  Alabama  (Clay's  Dig.  434,  §  19),  against 
keeping  a  billiard  table  in  connection  with 
a  house  where  spirituous  liquors  are  retailed, 
the  billiard  table  need  not  be  kept  in  the 
same  room  or  under  the  same  roof  where  the 
liquors  are  sold.  It  is  sufficient  if  the  one 
is  contiguous  to  the  other  and  forms  a  part 
of  the  same  establishment.  Smith  v.  State, 
22  Ala.  54.  In  North  Carolina,  under  the 
the  statute  against  gaming  (R.  S.  ch.  34» 
§  69),  the  place  of  gaming  and  the  jolace  of 


GAMING. 


237 


What  Constitutes. 


retailing  must  be  the  same  house,  or  at  least 
part  of  the  same  establishment.  State  v. 
Black,  9  Ired.  378. 

19.  Keeping  gaming  house.  The  keep- 
ing of  a  common  gaming  house  is  an  indict- 
able offense  at  common  law.  People  v. 
Jackson,  3  Denio,  101 ;  Vanderworker  v. 
State,  8  Eng.  700. 

20.  Keeping  a  house  in  which  cards  or  dom- 
inoes are  habitually  played  for  something  to 
eat  and  drink  in  such  house,  constitutes  the 
keeping  of  a  common  gaming  bouse  at  com- 
mon law  and  the  law  of  New  Hampshire. 
Lord  V.  State,  16  New  Hamp.  325. 

21.  Keeping  a  gaming  house  may  be  a  con- 
tinuous act,  and  all  the  time  during  which 
a  house  is  thus  kept,  prior  to  the  prosecu- 
tion for  the  keeping,  constitutes  one  otfense, 
which  can  be  punished  only  in  one  prosecu- 
tion.    State  V.  Lindley,  14  Ind.  430. 

22.  Under  the  statute  of  Maine  (ch.  35, 
§  7),  which  punishes — 1st,  the  keeping  of  a 
house,  shop  or  other  place,  resorted  to  for 
the  purpose  of  gaming;  and  2d,  the  per- 
mitting a  person  to  play  at  cards,  dice, 
billiards,  or  other  game  for  money  or  other 
things,  in  any  house,  shop,  or  place  under 
his  control,  a  person  may  permit  another  to 
play  at  such  games  for  money,  in  a  place 
under  his  control,  and  yet  not  keep  a  house 
or  place  resorted  to  for  that  purpose ;  or  he 
may  own  and  control  a  house  or  place  re- 
sorted to  for  the  purpose  of  gaming,  without 
being  the  keeper  of  the  house  or  place, 
within  the  meaning  of  the  statute.  State 
V.  Currier,  23  Maine,  43. 

23.  In  Massachusetts,  where  a  person 
rented  a  shed,  across  a  passage-way  be- 
tween the  shed  and  his  store,  and  received 
the  rent  knowing  that  the  shed  was  used 
for  gaming,  it  was  held  that  he  occupied  the 
shed  within  the  meaning  of  Stat.  1798,  ch. 
20,  §  2.     Com.  V.  Dean,  1  Pick.  387. 

24.  On  the  trial  of  an  indictment  for 
keeping  a  common  gaming  house,  the  fol- 
lowing instraction  was  held  proper:  "If 
the  jury  believe  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  room  in  ques- 
ti(m  was  a  common  gaming  house,  as 
charged  in  tlie  indictment,  and  that  the 
defendant  was  present,  and  in  any  way  or 


manner  aided,  or  abetted,  or  assisted  in 
keeping,  operating  and  running  such  gam- 
ing room  as  charged  in  the  indictment,  then 
the  jury  should  find  the  defendant  guilty, 
although  he  was  not  the  actual  owner  or  pro- 
prietor thereof  Stevens  v.  People,  67  111.  587. 

25.  A  statute  forbade  the  keeping  of  a 
room  to  be  used  or  occupied  for  gambling, 
or  the  permitting  of  the  same  to  be  so  used 
or  occupied.  The  proof  showed  that  on 
several  occasions  the  accused  had  permitted 
property  to  be  gambled  for  in  his  room. 
Held,  that  to  bring  the  defendant  within 
the  statute,  the  room  need  not  have  been 
principally  used  for  gambling,  but  that  it 
was  sufficient  if  he  had  occasionally  permit- 
ted gambling  therein.  Hutchins  v.  People, 
39  N.  Y.  454. 

26.  A  tavern-keeper  is  a  housekeeper 
within  the  meaning  of  the  statute  of  Mary- 
land (Act  of  1823,  ch.  16,  §  11),  providing 
that  no  housekeeper  shall  sell  any  strong 
liquor  on  Sunday,  or  sufler  any  drunkenness, 
gaming  or  unlawful  recreations  in  his  house. 
State  V.  Pearson,  2  Md.  310. 

27.  In  New  York,  it  is  not  an  indictable 
offense  to  keep  a  room  for  the  sale  of  tickets 
in  a  lottery.  Peojile  v.  Jackson,  3  Denio,  101. 

28.  Where  a  lease  restricts  the  tenant  to 
the  use  of  the  rooms  let,  as  sleeping  apart- 
ments, the  landlord  does  not  retain  such  a 
control  of  them  as  to  make  it  his  duty  to 
prevent  illegal  gaming  in  them.  Robinson 
V.  State,  24  Texas,  152. 

29.  Betting.  In  order  to  constitute  a 
wager,  both  parties  must  incur  a  risk. 
Quarles  v.  State,  5  Humph.  561.  A  bet  is  a 
wager,  and  the  betting  is  complete  when  the 
offer  to  bet  is  completed.  The  placing  of 
money  on  a  gaming  table  is  an  offer  to  bet, 
and  if  no  objection  be  made  by  the  player 
or  owner  of  the  table  or  bank,  it  is  an  ac- 
ceptance of  the  offer,  and  the  offense  of 
betting  is  complete,  although  the  game  be 
never  finished,  and  the  stake  be  neither  lost 
nor  won.     State  v.  Welch,  7  Port.  453. 

30.  Where  a  horse,  worth  eighty  dollars, 
was  sold  to  the  defendant  for  sixty-five 
dollars,  payment  to  be  made  when  Gen. 
Taylor  should  be  elected  President  of  the 
United  States,  which  was  afterward  paid  by 


238 


GAMING. 


What  Constitutes. 


the  defendant,  it  was  held  a  wager  within 
the  statute  of  Indiana.  Parson  v.  State,  2 
Carter,  499. 

31.  In  Indiana,  betting  on  an  election  is 
an  indictable  offense.  Parsons  v.  State,  2 
Carter,  499.  In  Ohio,  the  statute  against 
gaming  applies  to  betting  on  elections. 
Veach  v.  Elliott,  1  McCook,  139.  In  Ten- 
nessee, by  the  statute  of  1823,  ch.  35,  §  2, 
betting  on  an  election  is  a  misdemeanor. 
State  Y.  Smith,  1  Meigs,  99. 

32.  In  Tennessee,  a  race  must  have  been 
run,  in  order  to  make  a  betting  on  it  the 
oflense  of  gaming.  Fiddler  v.  State,  7 
Humph.  508.  Therefore,  an  indictment  al- 
leging that  the  defendant  bet  upon  a  horse 
race,  does  not  charge  any  offense,  the  words 
not  necessarily  importing  that  the  race 
was  run.     Dobbins  v.  State,  2  Humph.  424. 

33.  In  Kentucky,  betting  is  unlawful, 
whatever  may  be  the  occasion,  and  the 
money  or  thing  staked  for  the  bet  is  for- 
feited.    Vicaro  v.  Com.  5  Dana,  505. 

34.  In  Missouri,  imder  the  statute  of  1845. 
betting  on  any  gambling  device,  is  an  in- 
dictable offense;  and  each  act  of  betting  on 
such  device,  though  at  the  same  sitting,  is  a 
separate  offense.  State  v.  Bates,  10  Mo.  166 ; 
Forney  v.  State,  13  lb.  455. 

35.  In  Alabama,  betting  at  billiards  or 
pool,  is  not  an  indictable  offense.  State  v. 
j\Ioseley,14Ala.  390;  State  v.  Allaire, Ib.435. 

36.  Inciting  others  to  bet.  In  Tennessee, 
a  person  who  incites  others  to  play  for 
money,  or  who  jjlays  knowing  that  others 
are  betting,  is  guilty  of  gaming  under  the 
statute,  although  he  does  not  bet  himself. 
Howlet  V.  State,  5  Yerg.  145.  In  Mississippi, 
where  a  person  procured  others  to  bet  for 
liim,  it  was  held  that  he  was  equally  guilty 
as  though  he  had  bet  himself.  Williams  v. 
State,  12  Smed.  &  Marsh.  58.  In  Missouri, 
allowing  cards  to  be  used  where  money  is 
bet,  is  gambling,  within  the  statute.  State 
V.  Purdom,  3  Mo.  83;  and  see  Hinklev.  Com. 
4  Dana,  519. 

37.  Horse  racing.  To  constitute  a  horse 
race,  there  need  not  be  a  bet  or  wager,  or  a 
distance  to  be  run  agreed  upon,  or  judges 
appointed  to  decide  the  race.  Watson  v. 
State,  3  Ind.  123. 


38.  In  Tennessee,  under  the  statute  (of 
1833,  ch.  10,  §  2),  a  person  is  indictable  for 
running  a  horse  race  along  a  public  road,  al- 
though no  bet  may  have  been  made  on  the 
race.     State  v.  Fiddler,  7  Humph.  502. 

39.  In  Indiana,  the  permitting  one's  horse 
to  be  run  in  a  race,  and  the  acting  as  rider 
in  such  race,  were  held  to  be  separate 
offenses  under  the  statute.  State  v.  Ness, 
1  Carter,  64. 

40.  In  Tennessee,  turf  racing  is  excepted 
from  the  statute  (of  1820,  ch.  5),  against 
gaming;  but  not  match  races  for  short 
distances,  run  at  distilleries,  grog  shops, 
and  musters.  State  v.  Posey,  1  Humph. 
384. 

41.  As  to  what  constitutes  a  race  course, 
within  the  meaning  of  the  statute  of  Vir- 
ginia against  unlawful  gaming,  see  Wilson's 
Case,  9  Leigh,  648. 

42.  In  Iowa,  horse  racing  is  not  a  game  of 
chance,  within  the  meaning  of  the  statute 
against  gambling.  Harless  v.  U.  S.  1  Morris, 
169. 

43.  "What  not  deemed  gaming.  Playing 
a  game  of  chance  without  betting  thereon, 
and  without  any  intent  or  purj)ose  that 
others  shall  do  so,  is  not  gaming  within  the 
statute  of  Georgia.  Johnson  v.  State,  8  Ga. 
451. 

44.  In  Massachusetts,  the  playing  at  bill- 
iards, cards  or  dice,  is  only  unlawful  when 
done  at  licensed  houses,  or  at  places  opened 
and  kept  for  the  purpose,  for  hire,  gain,  or 
reward,  as  places  of  common  resort.  Com. 
V.  Coding,  3  Mete.  130. 

45.  In  New  York,  it  was  held  that  playing 
the  rub,  to  determine  which  party  should  pay 
for  the  use  of  a  billiard  table,  was  not  gam- 
ing.    People  agst.   Sergeant,   8   Cow.    139. 

46.  As  "  shuffle-board  "  is  not  a  game  of 
chance,  but  one  of  skill,  the  keeping  of  such 
a  table  is  not  indictable  under  the  statute  of 
North  Carolina  against  gaming.  State  v. 
Bishop,  8  Ired.  266.  And  the  same  is  true 
of  the  game  of  ten  jsins.  State  v.  Gupton, 
lb.  271. 

47.  Offense  with  reference  to  place.  Any 
place  which  is  temporarily  made  public  by 
the  assemblage  of  people  is  a  public  place 
within  the  meaninsj  of  the  statute  of  Ala- 


GAMING. 


239 


What  Constitutes. 


bama  against  gaming.      Campbell  v.  State, 
17  Ala.  369. 

48.  A  neighborhood  road  is  "a  public 
place "  within  the  statute  of  Alabama 
against  gaming,  if  the  gaming  take  place 
near  an  assemblage  of  persons,  some  of 
whom  watch  the  playing,  and  others  pass 
about.     Mills  v.  State,  30  Ala.  86. 

49.  To  make  a  separate  building  an  ap- 
purtenance to  a  tavern  within  the  statute  of 
Virginia  against  gaming  (1  R.  C.  ch.  147, 
§  16),  it  must  be  occupied  in  connection 
with  the  tavern  for  the  accommodation  of 
guests.     Sander's  Case,  5  Leigh,  751. 

50.  Where,  at  a  public  muster  at  a  tavern, 
persons  were  engaged  in  gaming  in  a  barn 
two  hundred  yards  distant  from  the  house, 
in  a  separate  inclosure,  though  on  the  same 
premises,  the  barn  being  sixty  or  seventy 
yards  in  the  rear  of  another  barn,  in  which 
liquor  was  sold  by  the  tavern-keeper,  it  was 
held  that  the  first  mentioned  barn  was  a 
public  place  within  the  meaning  of  the 
statute  of  Virginia  against  unlawful  gaming. 
Tanner's  case,  8  Leigh,  741. 

51.  In  Alabama,  a  lawyer's  office,  though 
"a  public  house"  within  the  statute  against 
gaming  (Code,  §  3243),  is  not  "  a  public 
place."  McCauley  v.  State,  26  Ala.  135; 
Smith  V.  State,  87  lb.  472.  On  a  trial  for 
gaming,  it  was  proved  that  the  playing  took 
place  in  the  night,  during  the  session  of  the 
Circuit  Court,  in  a  lawyer's  office,  and  by 
permission  of  a  person  who  occupied  the 
room  as  a  sleeping  apartment;  that  the 
doors  were  locked,  and  the  curtains  drawn 
over  the  windows.  The  court  charged  that 
this  was  a  public  place.  Held  error.  Bur- 
dine  V.  State,  25  lb.  60. 

52.  A  broker's  office  is  a  public  house 
within  the  statute  of  Alabama  against 
gaming,  and  where  such  office  consists  of  a 
front  and  back  room,  connected  by  a  door, 
and  the  front  room  is  used  by  the  broker 
for  his  business,  the  back  room  is  also  within 
the  statute,  although  used  and  occupied  as 
a  bedroom  by  a  member  of  the  broker's 
family.     Wilson  v.  State,  31  Ala.  371. 

53.  lu  Alabama,  a  justice's  office  is  a 
"  public  house  "  within  the  statute  against 
jjamincr.     Where   the    house    consists   of  a 


front  and  back  room,  which  are  connected 
by  an  open  space  used  as  a  door,  and  the 
front  room  is  occupied  for  a  magistrate's 
office,  the  back  room  is  within  the  statute 
against  gaming,  although  only  used  by  the 
partners  of  a  dissolved  firm  for  the  oc- 
casional settlement  of  their  accounts.  Bur- 
nett V.  State,  30  Ala.  19. 

54.  A  barber's  shop  is  a  public  house 
within  the  statute  of  Alabama  against  gam- 
ing ;  and  where  a  two-storied  house  is  oc- 
cupied by  a  barber,  who  uses  the  two  rooms 
on  the  ground  floor  as  his  shop,  the  back 
room  on  the  second  floor  is  also  within  the 
statute,  although  approached  only  by  a 
flight  of  steps  on  the  outside  of  the  house, 
and  used  by  the  barber  only  in  trying  ex- 
periments in  the  daguerrean  art.  Moore  v. 
State,  30  Ala.  550 ;  s.  p.  Cochran  v.  State, 
lb.  542. 

55.  A  building  in  which  the  business  of 
saddle  and  harness  making  is  carried  on  is 
a  "  public  house "  within  the  statute  of 
Alabama  against  gaming  (Code,  §  3243) ; 
and  where  such  building  consists  of  two 
stories,  the  lower  of  which  is  used  by  the 
owner  for  the  purpose  of  carrying  on  his 
said  business,  a  back  room  in  the  second 
story,  reached  only  by  outside  stairs,  and 
used  by  the  owner  as  a  bedroom  for  one  of 
his  workmen,  is  also  within  the  statute. 
Bentley  v.  State,  32  Ala.  596. 

56.  In  Alabama,  a  storehouse  in  the 
country  is  a  public  house  within  the  mean- 
ing of  the  statute  against  gaming  (Code, 
§  3343),  although  it  consists  of  two  rooms 
one  above  the  other,  both  of  which  the 
owner  uses,  the  lower  room  as  his  store  and 
the  upper  room  as  an  appendage  thereto. 
Brown  v.  State,  27  Ala.  47. 

57.  A  room  on  the  second  floor  of  a  two- 
story  house,  which  is  approached  only  by 
means  of  steps  on  the  outside,  and  in  which 
one  of  the  proprietors  of  the  house  sleeps, 
the  lower  room  being  used  for  retailing 
spirituous  liquors,  is  within  the  statute  of 
Alabama  against  gaming  at  any  storehouse 
for  retailing  spirituous  liquors,  or  house  or 
place  where  spirituous  liquors  are  retailed 
or  given  away.  Johnson  v.  State,  19  Ala. 
527. 


240 


GAMING. 


What  Constitutes. 


58.  A  room  iu  a  warehouse  for  storing 
cotton  on  the  bank  of  a  navigable  river, 
used  by  the  clerk  for  a  sleeping  room  as 
■svell  as  for  the  transaction  of  business,  is  a 
^' pttNic  house ''^  within  the  statutes  of  Ala- 
bama (Code,  §  3243)  against  gaming,  but 
not  a  "public  place."  Windham  v.  State, 
26  Ala.  69. 

59.  A  storehouse  in  which  dry  goods 
only  are  sold  is  a  public  house  within  the 
statute  of  Alabama  against  gaming,  al- 
though tlie  playing  is  by  night  with  closed 
doors  and  windows,  and  with  no  person 
other  than  the  players  present.  Skinner  v. 
State,  30  Ala.  524.  A  navigable  river  is 
not  a  highway  within  the  foregoing  statute. 
Glass  V.  State,  lb.  529. 

60.  In  Virginia,  where  it  was  proved  that 
the  parties  charged  were  in  a  storehouse  in 
a  village  late  at  night,  after  the  close  of 
business,  and  that  the  door  was  locked,  it 
was  held  that  it  was  a  public  place  within 
the  meaning  of  the  statute  against  gaming. 
Cora.  V.  Feazle,  8  Graft.  585. 

61.  In  Alabama,  a  country  storehouse  is 
a  public  house  within  the  statute  against 
gaming  (Code,  §  3243)  when  it  consists  of 
two  rooms  under  the  control  of  the  same 
person,  the  front  room  being  used  as  a  dry 
goods  store,  while  the  other,  a  shed  room, 
is  attached  to  it,  and  communicates  with  it 
by  a  door,  and  the  presumjjtion  that  the 
two  rooms  are  an  entirety  is  not  rejielled  by 
proving  that  the  back  room  was  used  as  a 
bedroom  by  one  of  the  proprietors  of  the 
store,  who  was  an  unmarried  man ;  that  no 
goods  were  kept  or  sold  there,  no  accounts 
settled  there,  and  that  witness  never  had 
seen  any  of  the  customers  of  the  store  use  it 
for  any  purpose.  Huffman  v.  State,  29  Ala. 
40 ;  s.  c.  28  lb.  48,  and  30  lb.  532. 

62.  A  house  occupied  by  the  keeper  of  a 
public  toll  bridge,  containing  two  rooms 
which  communicate  with  each  other  by  a 
door,  is  jjrima  facie  an  entirety,  and  if  the 
front  room  is  so  used  as  to  make  it  a 
"  public  house  "  within  the  statute  of  Ala- 
bama against  gaming,  the  back  room  is  also 
within  the  statute,  though  used  only  as  a 
bedroom  by  the  keeper  of  the  bridge,  an 
unmarried  man.    If  such  house  is  merely  the 


private  residence  of  the  keeper  of  the  bridge, 
it  is  not  within  the  statute,  although  settle- 
ments for  toll  are  made  therein.  But  if  the 
front  room  is  used  for  the  business  of  the 
bridge,  such  as  keeping  the  books,  settling 
accounts,  etc.,  it  then  becomes  a  "public 
house"  within  the  meaning  of  the  statute. 
Arnold  v.  State,  29  Ala.  46. 

63.  In  the  same  State,  an  unoccupied 
storehouse  fronting  on  a  public  street,  if 
habitually  resorted  to  by  persons  for  the 
purj^ose  of  playing  cards,  is  within  the 
statute  against  2Dlaying  cards  at  an  out- 
house where  people  resort.  Swallow  v. 
State,  20  Ala.  30. 

64.  In  Alabama,  when  the  gaming  is  at  a 
"public  house,"  or  at  any  one  of  the  other 
places  si^ecifically  enumerated  in  the  Code, 
even  if  great  secrecy  be  employed  and  but 
few  be  present,  it  is  a  violation  of  the  statute. 
Windham  v.  State,  26  Ala.  69, 

65.  What  not  deemed  a  public  place. 
In  Alabama,  a  doctor's  office  is  not  a  public 
place  within  the  statute  against  gaming, 
when  the  playing  is  at  night,  the  doors 
closed,  and  curtains  down  at  the  windows, 
although  the  room  is  next  to  a  merchant's 
counting-room,  with  a  door  communicating 
between  them,  and  the  person  who  occupies 
it  as  a  sleeping  apartment  is  in  the  habit  of 
inviting  his  friends  to  come  to  his  room  for 
the  purpose  of  playing.  Sherrod  v.  State, 
25  Ala.  78;  Clarke  v.  State,  12  lb.  492. 
But  held  otherwise  as  to  a  steamboat.  Cole- 
man v.  State,  13  lb.  602. 

66.  A  back  room  used  by  the  register  in 
chancery  as  a  sleeping  apartment,  the  front 
room  being  his  office,  and  communicating 
with  it  by  a  door,  is  not  a  public  place 
within  the  statute  of  Alabama  against  gam- 
ing, it  being  proved  that  the  house  was 
surrounded  iu  the  rear  by  a  high  fence;  that 
the  playing  occurred  at  night,  when  the 
doors  were  locked  and  the  windows  closed  ; 
that  the  eight  persons  present  came  by  in- 
vitation of  the  occupier  of  the  room,  and 
that  they  entered  through  a  back  door. 
Roquemore  v.  State,  19  Ala.  528. 

67.  An  apartment  on  the  second  floor  of  a 
house  rented  and  occupied  by  the  defendant 
as  a  bedroom,  is  not  within  the  statute  of 


GAMING. 


241 


What  Constitutes. 


Indictment. 


Alabama  against  gaming  (Code,  §  3243),  from 
the  mere  fact  that  the  lower  story  is  used  by. 
another  person  for  the  sale  of  spirituous 
liquors.     Dale  v.  State,  27  Ala.  31. 

68.  The  fact  that  the  defendant,  with  two 
-or  three  other  persons,  on  one  occasion  went 
to  an  outhouse  and  played  cards,  does  not 
<;onstitute  such  house  "an  outhouse  where 
people  resort "  within  the  statute  of  Ala- 
bama against  gaming.  Cain  v.  State,  30 
Ala.  534.  A  backhouse  or  im\j  belonging 
to  a  country  schoolhouse  is  not,  during  the 
A'acation,  either  a  public  liouse,  a  public 
place,  or  an  outhouse  where  people  resort, 
within  the  foregoing  statute.  McDauiel  v. 
State,  35  Ala.  390. 

69.  On  the  trial  of  an  indictment  for 
playing  cards  "at  a  public  place,"  it  was 
pi'oved  that  the  defendants,  five  in  number, 
went  into  a  piece  of  dense  woods,  to  a  deep 
hollow,  about  four  hundred  yards  from  a 
country  storehouse  where  a  large  number  of 
people  had  assembled,  and  there  engaged  in 
a  game  of  cards ;  that  three  other  persons 
joined  them  and  took  part  in  the  game,  one 
of  whom  testified  that  when  he  went  into 
the  woods  he  did  not  know  where  the  de- 
fendants were,  but  hunted  them  up;  that  he 
had  never  known  cards  to  be  played  at  that 
place  before,  but  that  during  the  previous 
year,  persons  had  played  ' '  in  the  piece  of 
woods,"  fifty  or  one  hundred  yards  from 
"said  hollow,"  Held  that  the  playing  was 
not  at  a  public  place.  Bythwood  v.  State, 
20  Ala.  N.  S.  47. 

70.  A  spot  concealed  from  view  by  bushes 
and  briars,  on  land  owned  by  a  county  for 
supporting  its  poor,  is  not  a  public  place 
within  the  statute  of  Virginia,  against  gam- 
ing.    Com.  v.  Vandinc,  6  Gratt.   680. 

71.  Power  and  duty  of  grand  jury.  In 
Tennessee,  the  statute  of  1834,  ch.  5,  §  2, 
makes  it  the  duty  of  grand  jurors  to  inquire 
after  all  persons  engaged  in  unlawful  gam- 
ing, and  gives  them  power  to  summon  before 
them  for  examination,  anyone  who  they  be- 
lieve has  knowledge  of  the  commission  of 
such  oHenses.  McGowan  v.  State,  9  Yerg. 
184;  State  V.  Smith,  Meigs,  99;Fugatev. 
State,  3  Humph.  397 ;  State  v.  Parish,  8  lb. 
80. 

16 


72.  Construction  of  statutes.  In  Missis- 
sippi, the  statutes  against  gaming,  being  re- 
medial and  not  penal,  are  to  be  construed 
strictly.  Cain  v.  State,  13  Smed.  &  Marsh. 
450. 

3.  Indictment. 

73.  Parties.  In  Ohio,  an  indictment  for 
gaming  must  name  the  parties,  or  state  that 
they  are  unknown ;  and  also  state  whether 
the  game  was  for  money  or  other  valuable 
thing.     Davis  v.  State,  7  Ohio,  304. 

74.  In  Indiana,  an  indictment  of  a  psrson 
for  sufiering  his  building  to  be  used  for  gam- 
ing must  state  the  names  of  the  persons 
who  were  allowed  to  gamble,  or  give  a  good 
reason  for  the  omission ;  and  the  objection 
is  properly  made  by  motion  in  arrest.  State 
V.  Noland,  39  Ind.  212;  Ball  v.  State,  7 
Blackf.  242.  So  likewise,  an  indictment  for 
gaming  must  give  the  name  of  the  person 
with  whom  the  defendant  played,  or  state 
that  his  name  is  unknown.  Butler  v.  State, 
5  lb.  380.  In  Iowa,  an  indictment  for  sufier- 
ing gaming  need  not  state  the  names  of  the 
persons  who  played,  name  the  sums  of  mon- 
ey wagered,  or  describe  the  property  lost  or 
won.      Romp  v.  State,  3  Greene,  376. 

75.  In  Arkansas,  an  indictment  for  bet- 
ting at  a  game  of  cards  under  the  statute 
(Dig.  p.  367,  §  8),  must  state  the  names  of  the 
persons  who  played  the  game,  if  known ; 
and  the  proof  must  correspond  with  the  al- 
legation, and  show  that  all  the  persons 
charged  were  engaged  in  the  game.  Parrott 
V.  State,  5  Eng.  574.  But  an  indictment  un- 
der the  first  section  of  the  statute  (Dig.  p. 
365),  need  not  allege  that  the  defendant  bet 
with  any  particular  person.  Drew  v.  State, 
5  Eng.  83. 

76.  In  Kansas,  an  indictment  for  keeping 
a  gambling  house  need  not  state  the  names 
of  the  persons  who  were  permitted  to  bet  or 
play;  and  if  it  be  alleged  that  the  names 
are  unknown,  such  an  allegation  is  surplus- 
age and  need  not  be  proved.  Rice  v.  State, 
3  Kansas,  141. 

77.  Persons  who  kee])  a  common  gaming 
house  may  be  indicted  jointly  or  separately. 
Com.  V.  Hyde,  Thach.  Crim.  Cas.  19;  Ward 
V.  State,   23  Ala.   16.     In  Virginia,  several 


242 


GAMING. 


Indictment. 


persons  may  be  charged  in  the  same  indict- 
ment with  different  violations  of  the  statute 
against  gaming.  Com.  v.  McGuire,  1  Va. 
Cas.  110. 

78.  Name  of  game.  An  indictment  charg- 
ing that  the  defendant  "  did  play  at  cards 
for  money,"  was  held  sufficient.  Johnston 
V.  State,  7  Smed.  &  Marsh.  58.  And  the 
same  was  held  of  an  indictment  which 
charged  that  the  defendant  played  "  at  a 
game  of  cards  or  dice,"  instead  of  "  at  a 
game  with  cards  or  dice."  Cochran  v.  State, 
30  Ala.  542. 

79.  In  Kentucky,  it  was  held  that  an  in- 
dictment for  gaming  need  not  give  the 
name  of  the  game,  or  state  how  much  money 
was  won  or  lost,  nor  who  won  or  lost  money. 
Monte  V.  Com.  3  J.  J.  Marsh.  132;  Com.  v. 
Crupper,  3  Dana,  466.  In  Indiana,  it  has 
been  held  that  although  the  indictment  need 
not  give  the  name  of  the  game,  yet  that  it 
ought  to  state  whether  cards,  dice,  &c.,  were 
used,  in  order  to  identify  the  transaction. 
Webster  v.  State,  8  Blackf.  400.  See  State 
V.  Dole,  3  lb.  294 :  State  v.  Ross,  7  lb.  322. 

80.  In  Tennessee,  an  indictment  under  the 
statute  of  1824,  ch.  5,  need  not  describe  the 
game  played,  nor  the  person  with  whom  the 
bet  was  made,  nor  state  wiiat  money  or 
amount  was  bet  on  the  game.  State  v.  Mc- 
Bride,  8  Humph.  66 ;  nor  give  the  name  of 
any  person  who  played.  Dormer  v.  State,  2 
Carter,  308.  But  where  the  indictment 
charges  the  defendant  with  gambling  for 
"a  valuable  thing."  the  thing  gambled  for 
must  be  described.  Anthony  v.  State,  4 
Humph.  83. 

81.  An  indictment  charged  that  A.  andB. 
played  at  a  game  with  cards,  without  alleg- 
ing that  the  played  together.  Held  insuffi- 
cient. Lewellin  v.  State,  18  Texas,  538; 
Parker  v.  State,  26  lb.  206 ;  State  v.  Roderica, 
35  lb.  507 ;  Herron  v.  State,  36  lb.  285. 

82.  Averment  of  the  keeping,  or  per- 
mitting a  house  to  be  kept  for  gaming. 
In  Missouri,  an  indictment  under  the  stat- 
ute (1  R.  C.  1855,  p.  626),  for  permitting  a 
gambling  device  to  be  used  for  the  purpose 
of  gaming  in  the  house  of  defendant,  need 
not  aver  an  actual  playing  for  money  or 
property.     State  v.  Scaggs,  33  Mo.  92.     In 


Indiana,  the  same  is  true  of  an  indictment 
under  the  statute  of  1838,  charging  that  the 
defendant  kept,  a  room  to  be  used  and  occu- 
pied for  gaming.  State  v.  Miller,  5  Blackf, 
502. 

83.  In  Texas,  where  an  indictment  charged 
the  defendant  with  keeping  a  ten-pin  alley 
without  having  paid  the  license,  it  was  held 
that  it  need  not  be  alleged  that  the  alley 
was  kept  for  play,  or  that  playing  took  place, 
or  was  permitted  therein.  Needham  v. 
State,  1  Texas,  139. 

84.  In  Arkansas,  it  was  held  that  a  general 
charge  that  the  defendant  kept  and  main- 
tained a  common  gaming  house,  was  suffi- 
cient, without  the  further  allegation  of  what 
was  transacted  there.  Vanderworker  v.  State, 
8  Eng.  700. 

85.  In  New  York,  an  indictment  which 
alleges  that  the  defendant  kept  a  common 
gaming  house,  without  stating  what  was 
transacted  there,  is  insufficient.  Where  it 
was  charged  that  the  defendant  kept  a  cer- 
tain common  gaming  house  in  which  he  sold 
and  furnished  tickets  in  lotteries  unauthor- 
ized by  law,  to  divers  persons,  it  was  held 
that  the  indictment  did  not  state  an  indict- 
able offense.  People  v.  Jackson,  3  Denio,^ 
101. 

86.  Where  an  indictment  averred  that  the 
tenement  therein  named  was  used  for  illegal 
gaming,  but  did  not  charge  the  defendant 
as  a  keeper  of  a  "common  gaming  house," 
it  was  held  insufficient.  Com.  v.  Stahl.  7 
Allen,  304. 

87.  An  indictment  alleging  that  the  de- 
fendant kept  a  house  in  which  unlawful 
games  at  cards  were  played  and  permitted, 
is  bad  in  not  charging  in  direct  terms  that 
the  gaming  was  permitted  by  the  defendant. 
Com.  V.  Crupper,  3  Dana,  466. 

88.  An  indictment  for  gaming,  charged 
that  the  defendant  "unlawfully  kept  and 
suffered  a  certain  building,  room,  and  tene- 
ment, to  be  used  for  gaming,  and  then  and 
there  unlawfully  suffered  A.  B.  and  divers 
other  persons  to  the  grand  jurors  unknown, 
to  play  at  a  certain  game  called  billiaixls,  for 
money  and  other  articles  of  value."  It  was 
proved  that  the  defendant  kept  a  billiard 
room  in  which  players  were  charged  twenty- 


GAMING. 


243 


Indictment. 


five  cents  a  game  for  the  use  of  the  tables, 
the  loser  paying  the  sum  thus  charged.  A 
witness  testified  as  follows :  "  I  played  one 
game  and  lost  it,  and  paid  the  defendant  for 
the  table.  Have  seen  the  defendant  in  the 
saloon  frequently,  and  have  seen  his  clerk 
there.  Saw  games  played,  and  the  loser  al- 
ways paid  the  bill  for  the  table.  I  could  not 
swear  positively  that  the  defendant  always 
knew  the  terms  upon  which  the  games  were 
played,  but  think  he  had  a  good  opportunity 
to  know  that  the  loser  paid  for  the  table." 
Held,  that  the  indictment  was  not  bad  for 
duplicity,  and  that  the  defendant  was  prop- 
erly convicted.  Crawford  v.  State,  33  Ind. 
304. 

89.  Averment  of  betting.  An  indict- 
ment for  gaming,  which  charges  that  money 
was  won  and  lost,  is  sufficient  without  alleg- 
ing that  it  was  bet.  Buford  v.  Com.  14  B. 
Mon.  24. 

90.  An  indictment  alleging  that  the  de- 
fendant did  bet  at  a  certain  gaming  bank 
then  and  there  exhibited  and  kept,  called 
monte,  is  sufficiently  certain.  McKissick  v. 
State,  2  Texas,  356. 

91.  In  Arkansas,  an  indictment  under  the 
statute  (Dig.  307,  §  8),  need  not  allege  the 
amount  of  money  bet,  nor  with  whom  de- 
fendant bet,  but  it  must  give  the  names  of 
the  players,  if  known.  Moffat  v.  State,  6 
Eng.  169 ;  Backman  v.  State,  8  lb.  703. 

92.  An  indictment  for  betting  on  an  elec- 
tion must  state  the  object  for  which  the 
election  bet  on  was  held.  Bellair  v.  State, 
6  Blackf.  104. 

93.  An  indictment  charged  that  the  de- 
fendant and  another  person  bet  on  the  result 
of  the  Presidential  election,  "goods,  wares, 
and  merchandise,  being  valuable  things." 
Held  bad  for  uncertainty.  State  v.  Kilgore, 
6  Humph.  44. 

94.  An  indictment  for  betting  on  the  re- 
sult of  an  election  need  not  allege  that  the 
defendant  bet  upon  the  success  of  any  par- 
ticular candidate.  State  v.  Crosi,  3  Humph. 
301. 

95.  Time.  The  day  named  in  an  indict- 
ment for  gaming  is  not  material,  provided  it 
\)Q  previous  to  the  finding  of  the  indict- 
ment.    State  V.  Little,  6  Blackf.  267.     But 


the  day  charged  must  be  a  time  within 
which  the  law  authorizes  a  prosecution  to 
be  commenced.  Anthony  v.  State,  4  Humph. 
83. 

96.  Averment  of  place.  In  Virginia, 
where  the  defendants  were  charged  with 
playing  an  unlawful  game  at  the  house  of 
A.,  in  B.,  in  the  county  of  C,  it  was  held 
that  the  presentment  was  fatally  defective 
in  not  alleging  that  the  house  was  a  public 
house.  Herd's  Case,  4  Leigh,  674.  And  a 
grocery  where  gaming  is  alleged  to  have 
taken  place  must  be  charged  to  be  a  public 
place,  or  place  of  public  resort.  Robert's 
Case,  10  lb.  686. 

97.  In  the  same  State,  an  indictment 
which  charged  the  defendant  with  unlawful 
gaming  at  the  house  of  A.,  the  same  being 
a  house  of  entertainment,  was  held  sufficient. 
Linkor's  Case,  9  Leigh,  608.  But  an  indict- 
ment which  omitted  to  allege  that  the  place 
where  the  game  was  played  was  a  public 
house  was  held  fatally  defective.  Herd's 
Case,  4  lb.  674.  And  see  Robert's  Case,  10 
Tb.  686. 

98.  In  an  indictment  for  permitting  cards 
to  be  played  at  a  house  for  retailing  spirit- 
uous liquors,  the  words  "Occidental  saloon" 
do  not  describe  a  public  house.  State  v. 
Mansker,  36  Texas,  364. 

99.  In  New  Hampshire,  in  an  indictment, 
for  keeping  a  gaming-house  it  is  not  neces- 
sary to  describe  the  house  or  place,  or  to 
name  the  persons  who  played  at  it,  or  the 
games  played,  or  the  amount  of  the  stakes. 
State  V.  Prescott,  33  New  Hamp.  212. 

100.  In  Alabama,  an  indictment  which 
charged  the  playing  at  cards  in  an  outhouse 
where  people  resorted,  in  a  storehouse  for 
retailing  spirituous  liquors,  and  in  a  public 
place,  was  held  sufficient  without  stating  to 
whom  the  outhouse  or  storcliouse  belonged, 
or  describing  the  place.  State  v.  Atkyns,  1 
Ala.  180. 

101.  In  Texas,  an  indictment  for  playing- 
cards  at  a  public  place  need  not  allege  the 
ownership  of  the  place.  Wilson  v.  State, 
5  Texas,  21. 

102.  An  indictment  for  betting  on  a  game 
need  not  allege  that  the  game  was  played 


244 


GAMING. 


Indictment. 


Evidence. 


in  tlie  county  where  the   bet    was    made. 
State  V.  Kyle,  10  Mo.  389. 

103.  An  indictment  for  permitting  a  liorse 
to  be  run  in  a  race  along  a  public  highway 
need  not  state  the  termini  of  the  highway. 
State  V.  Armstrong,  3  Ind.  139;  State  v. 
Burgett,  1  Carter,  479. 

104.  Charging  several  acts.  An  indict- 
ment is  not  double  which  states  several  dis- 
tinct acts  of  gaming.  State  v.  Prescott,  33 
INew  Hamp.  212.  The  setting  up  of  a 
gaming  table,  the  keeping  of  such  table,  and 
the  inducing  of  a  person  to  bet  on  it,  when 
done  by  the  same  person  at  the  same  time, 
may  be  charged  in  the  indictment  as  one 
oflense.     Hinkle  v.  Com.  4  Dana,  519. 

105.  An  indictment  which  charged  un- 
lawful gaming  by  playing  at  cards,  and  bet- 
ting on  the  sides  and  hands  of  those  that 
then  and.  there  played,  was  held  not  bad  for 
duplicity.   Com.  v.  Tiernans,  4  Gratt.  545. 

106.  An  indictment  which  charges  that 
the  defendant  kept  and  suffered  his  house 
to  be  used  for  gaming  is  not  bad  for  du- 
plicity.    Dormer  v.  State,  2  Carter,  308. 

107.  An  indictment  which  alleges  the 
keeping  of  a  faro  bank,  and  inducing  per- 
sons to  play  therewith  for  money,  charges 
but  one  offense.    State  v.  Ames,  10  Mo.  743. 

3.  Evidence.  \y 

108.  Bill  of  particulars.  A  person  in- 
dicted as  a  common  gambler  is  not  entitled 
to  a  biU  of  particulars  of  the  facts  expected, 
to  be  proved.     Com.  v.  Moore,  2  Dana,  402. 

109.  Time.  In  Indiana,  where  a  present- 
ment under  the  statute  (R.  S.  of  1838,  218), 
w^as  made  for  unlawful  gaming  at  cards  at  a 
place  stated,  within  six  months  next  pre- 
ceding, and  the  process  summoned  the  de- 
fendant to  answer  the  presentment  for  un- 
lawful gaming  at  cards  generally,  it  was 
held  that  the  process  was  void.  Blanton  v. 
State,  5  Blackf.  560. 

110.  But  in  Alabama,  where  the  indict- 
ment charged  that  the  gaming  was  commit- 
ted within  six  months  before  the  commence- 
ment of  the  prosecution,  and  the  jury  found 
the  defendant  guilty,  and. that  the  gaming 
took  place  more  than  six  months  before  the 
time  laid,  it  was  held  that  the  variance  was 


not   material.     Cameron  v.  State,   15   Ala. 
383. 

111.  Place.  Under  an  indictment  for 
gaming,  which  alleges  that  the  defendant 
played  cards  "at  a  storehouse  then  and 
there  for  retailing  spirituous  liquors,"  he 
cannot  be  convicted,  upon  proof  that  the 
playing  took  place  "near  a  house  formerly 
used  for  retailing,  but  which  was  not  then 
so  used."     Logan  v.  State,  24  Ala.  182. 

112.  An  indictment  charged  the  defend- 
ant in  different  counts,  with  playing  cards 
"at  a  highway,"  "  at  a  house  where  spirit- 
uous liquors  were  retailed "  "at  a  public 
place"  and  "at  a  public  house."  It  was 
proved  that  tlie  playing  was  in  a  hollow 
more  than  a  hundred  yards  from  a  house 
where  spirituous  liquors  were  retailed,  and 
where  persons  had  been  drinking;  that  the 
persons  playing  could  not  be  seen  from  the 
grocery,  nor  from  the  public  road;  and  that 
there  never  had  been  any  playing  at  that 
place  before  or  since.  Held  that  the  evi- 
dence did  not  support  the  indictment. 
Smith  V.  State,  23  Ala.  39. 

113.  An  indictment  for  gaming  alleged 
that  the  defendant  played  cards,  to  wit,  the 
the  game  of  all  fours,  of  loo,  and  of  whist, 
at  a  public  house,  to  wit,  at  the  storehouse 
of  A.  neld  that  to  support  the  indictment, 
it  must  be  proved  that  the  defendant  played 
at  some  one  of  the  games  mentioned  therein, 
and  that  if  the  playing  was  at  the  store- 
house of  A.,  in  the  night,  after  the  business 
of  the  day  was  over,  the  storehouse  was  not 
then  jrrima  facie  a  public  house,  though  it 
was  so  when  open  to  the  public  in  the  day 
time.  Windsor's  Case,  4  Leigh,  G80.  And 
see  Feazle's  Case,  8  Gratt.  585v 

114.  Where  an  indictment  for  gaming 
charged  that  the  offense  was  committed  at 
the  booth  of  S.,  and  it  was  proved  to  have 
been  committed  at  the  booth  of  C,  it  was 
held  that  the  evidence  did  not  support  the 
charge.     Com.  v.  Butts,  2  Va.  Cas.  18. 

115.  Proof  that  a  race  was  run  along  a 
road  leading  from  one  town  to  another  in  a 
certain  county,  was  held  prhAa  facie  evi- 
dence that  the  road  was  a  public  highway. 
Watson  V.  State,  3  Ind.  123. 

116.  Proof  of  betting.     Under  an  indict- 


GAMIXG. 


245 


Evidence, 


ment  alleging  that  several  persons  bet  at  a 
faro  bank,  the  evidence  must  show  that  all 
the  persons  named  were  concerned  in  the 
betting.     Johnson  v.  State,  8  Eng.  684. 

117.  An  indictment  charged  that  the  de- 
fendant and  four  other  persons  bet  together, 
and  against  each  other,  at  a  game  of  cards, 
and  in  a  second _count,  that  the  said  defend- 
ant and  the  said  other  persons  bet  together 
at  a  game  of  cards.  Held  that  the  indict- 
ment was  not  supported  by  proof  that  the 
four  persons  named  played  cards,  that  the 
defendant  stood  by  and  bet  with  one  of 
them,  and  that  three  of  the  players  bet  with 
each  other,  but  that  the  fourth  player  did 
not  bet.     Hany  v.  State,  4  Eng.  193. 

118.  Where  the  indictment  charged  the 
plajnng  at  a  game  of  cards  at  a  public  place, 
upon  which  money  was  bet,  and  it  was 
proved  that  property  was  bet,  it  was  held 
that  the  variance  was  material.  Hall  v. 
State,  8  Texas,  171.  On  the  other  hand, 
evidence  that  the  defendant  bet  money  on  a 
game  of  cards  will  not  support  an  indict- 
ment charging  him  with  betting  property. 
Horton  v.  State,  8  Eng.  62. 

119.  Ah  indictment  for  betting  money 
will  not  be  supported  by  proof  of  the  bet- 
ting of  United  States  treasury  warrants. 
Williams  v.  State,  12  Smed.  &  Marsh.  58. 

120.  An  indictment  which  alleged  that 
the  defendant  unlawfully  bet  and  played  at 
a  game  of  cards  called  faro,  for  money,  was 
held  not  supported  by  proof  that  he  bet 
bank  notes.  Johnston  v.  State,  1  Mart.  & 
Yerg.  129. 

121.  But  proof  of  the  betting  of  checks 
or  counters  of  a  faro  bank  which  the  parties 
agree  shall  represent  bank  notes  or  money, 
and  for  which  money  or  bank  notes  are  paid 
by  them,  will  support  the  charge  of  keeping 
a  faro  table  at  which  money  or  bank  notes 
are  bet.     Ashbuck  v.  Com.  7  B.  Mon.  44. 

122.  Persons  playing.  An  allegation  in 
an  indictment,  tliat  the  names  of  the  persons 
who  played  the  game  are  unknown,  is  ma- 
terial, and  must  be  sustained  by  the  proof. 
Barkman  v.*  State,  8  Eng.  703. 

123.  An  indictment  charged  that  the  de- 
fendant by  playing  at  cards,  won  from  A. 
and  B.  a  certain  article.     It  was  proved  that 


the  article  was  won  by  defendant  and  an- 
other as  partners,  from  A.  and  B.  as  partners. 
Relil  that  the  variance  was  fatal.  Wilcox 
V.  State,  7  Blackf.  456. 

124.  But  where  an  indictment  charged  a 
tavern  keeper  with  permitting  the  game  of 
loo  to  be  played  in  his  tavern  by  certain 
persons  named,  it  was  held  suflBcient  to 
prove  that  he  permitted  that  game  to  be 
played  therein  by  other  persons  than  those 
named.     Price's  Case,  8  Leigh,  757. 

125.  An  indictment  for  gaming  may  be 
sustained  against  one,  though  others  are 
also  charged  in  the  indictment  who  were  not 
connected  in  gaming  with  him.  Brown  v. 
State,  5  Yerg.  367. 

126.  Game  played.  The  defendant  was 
convicted  under  an  indictment  charging  him 
with  betting  at  a  game  of  cards  called  pocre, 
upon  proof  that  the  game  on  which  he  bet 
was  called  drawn  pocre^  and  differed  in  some 
respects  from  pocre.  Barkman  v.  State,  8 
Eng.  703. 

127.  Under  an  indictment  for  gaming, 
the  defendant  may  be  convicted  on  proof 
"that  he  and  another  put  up  money  and 
threw  dice  for  it,  three  times  each,  the  one 
throwing  the  highest  number  taking  the 
money ;  "  although  it  appear  "  that  the  mode 
of  procedure  and  of  throwing  the  dice  was 
the  same  as  in  the  case  of  raffling  for 
property."     Jones  v.  State,  26  Ala.  155. 

128.  To  justify  a  conviction  under  an 
indictment  for  gaming  on  proof  that  the 
defendant  played  a  game  of  euchre  with 
dominoes,  the  juiy  must  determine — 1st, 
whether  that  game  when  played  with 
dominoes,  is  substantially  the  same  as  when 
played  with  cards;  and  2d,  whether  domi- 
noes had  become,  at  the  time  of  the  defend- 
ant's playing,  a  device  or  substitute  for  cards 
in  playing  euchre,  or  were  in  fact  so  used 
in  that  particular  game.  Harris  v.  State,  31 
Ala.  362. 

123.  A  person  cannot  be  convicted  ob 
proof  that  the  defendant  played  euchre  with 
dominoes,  where  it  is  shown  that  euchre 
with  dominoes  is  an  older  game  than  euchre 
with  cards,  and  that  both  cards  and  domi- 
noes are  still  in  common  use  in  playing 
euchre,  unless  it  appear  that  dominoes  were 


246 


GAMING.— GRAND   JURY. 


Evidence. 


How  Constituted. 


used  in  that  particular  game  as  a  substitute 
for  cards,  althougli  the  players  themselves 
did  not  so  intend.  Harris  v.  State,  33  Ala. 
37  o. 

130.  Under  an  indictment  for  keeping  a 
gaming  house,  it  is  unnecessary  to  prove  the 
allegations  that  evil  disposed  and  vicious 
jicrsons  frequented  the  house,  or  specific  acts 
of  "cursing,  swearing,  quarreling,  and 
drinking."  Lord  v.  State,  16  New  Hamp. 
325. 

131.  In  Alabama,  on  the  trial  of  an  indict- 
ment for  betting  at  a  game  of  pool  at  a 
public  place,  contrary  to  the  statute  (Code, 
§  3243),  the  defendant  may  be  convicted  on 
proof  of  his  playing  pool  at  a  table  reg- 
ularly licensed  for  billiards ;  such  a  license 
not  authorizing  the  use  of  the  table  for 
the  game  of  pool.  Rodgors  v.  State,  26 
Ala.  76. 

132.  An  indictment  for  permitting  a  faro 
bank  to  be  kept  and  exhibited  by  the  de- 
fendant in  his  house,  is  not  sui:)ported  by 
evidence  that  the  house  was  owned  by  the 
defendant,  and  that  the  faro  bank  was  kept 
and  exhibited  in  it,  without  also  showing 
that  the  defendant  permitted  it.  Harris  v. 
State,  5  Texas,  11. 

133.  The  allegation  in  an  indictment  for 
racing  as  to  the  kind  of  animal  that  was 
suflfered  to  be  run,  is  material,  and  must  be 
proved  as  laid.  Thrasher  v.  State,  6  Blackf 
460. 

134.  Upon  the  trial  of  an  indictment 
charging  the  defendant  as  a  common  gam- 
bler, evidence  that  "  he  was  and  is  by  repu- 
tation a  common  gambler,"  is  not  admis- 
sible ;  but  facts  must  be  proved.  A  single 
instance  of  unlawful  gaming,  with  other  cir- 
cumstances, might  warrant  a  conviction. 
Com.  V.  Hopkins,  2  Dana,  418. 

135.  Money  won  or  lost.  Under  an  in- 
dictment for  winning  a  certain  sum  of  money, 
it  is  sufficient  to  prove  the  winning  of  a 
smaller  sum.  Parsons  v.  State,  2  Carter,  499. 

136.  An  indictment  which  charges  the 
defendant  with  winning  $5,  by  a  wager,  is 
not  supported  by  proof  that  he  won  a  prom- 
issory note  for  $o.  Tate  v.  State,  5  Blackf 
174.' 

137.  An  information  charmnsr  the  defend- 


ant with  having  lost  upon  a  game  of  cards 
is  not  sustained  by  proof  that  he  and  another 
person  jointly  lost.  Jackson  v.  State,  4  Ind. 
560. 

138.  On  the  trial  of  an  indictment  for 
gaming,  it  was  held  erroneous  to  charge  the 
jury  that  it  was  not  necessary  for  the  prose- 
cution to  prove  that  the  defendant  either 
won  or  lost  of  or  to  all  the  persons  named 
in  the  indictment,  but  that  it  was  sufficient 
to  i^rove  a  winning  or  losing  from  or  to,  one 
or  more  of  them.  Isely  v.  State,  8  Blackf. 
403. 


©vanb  3uvi}. 

1.  How  constituted.  At  common  law  a 
grand  jury  may  cansist  of  any  number  be- 
tween twelve  and  twenty-three.  State  v. 
Davis,  2  Ired.  153. 

2.  "Who  may  be  grand  juror.  A  person 
competent  to  serve  as  a  traverse  juror  is 
competent  to  serve  as  a  grand  juror.  In 
Maine,  by  statute  (R.  S.  ch.  106,  §  3),  cer- 
tain persons,  including  all  officers  of  the 
United  States,  are  exempted  from  serving  as 
jurors,  and  the  statute  directs  that  their 
names  shall  not  be  placed  on  the  lists. 
Hehl  that  they  were  not  disqualified.  State 
V.  Quimby,  51  Maine,  395;  State  v.  Wright, 
53  lb.  328. 

3.  A  grand  juror,  who  had  formed  an  un- 
qualified opinion  of  the  defendant's  guilt, 
previous  to  the  finding  of  the  indictment,  is 
incompetent  to  sit,  although  such  opinion 
was  derived  from  evidence  given  in  the 
grand  jury  room  in  the  finding  of  an  indict- 
ment against  the  defendant  for  the  same  of- 
fense, which  was  quashSd.  State  v.  Gillick, 
7  Iowa,  287. 

4.  Quakers  are  not  incompetent  to  serve 
as  grand  jurors.  Com.  v.  Smith,  9  Mass. 
IO7T 

5.  Summoning.  In  Maine,  grand  jurors 
by  statute  (R.  S.  ch.  135,  §  10),  are  drawn 
and  summoned  by  writs  of  venire  facias,  un- 
der seal  of  the  court  signed  by  the  clerk.  A 
grand  jury  not  legally  constituted  cannot  be 
made  such  by  consent ;  and  aforti{)ri  it  can- 
not become  so  by  any  omission  to  make  ob- 
jections.    State  V.  Lightbody,  88  Maine,  200. 


GRAND  JURY. 


247 


Proof  of  Organization. 


Two  Grand  Juries. 


6.  The  statute  of  New  York  (of  1851,  p. 
825,  ch.  444),  is  so  far  directory  that  an 
omission  by  the  county  judge  to  make  the 
specified  designations  respecting  juries,  does 
not  render  his  appointment  of  the  times  and 
places  for  holding  Courts  of  Sessions,  without 
such  designations,  irregular  or  invalid.  It 
is  only  when  the  order  designates  a  term  at 
which  no  grand  jury  is  required  to  attend, 
that  it  is  unlawful  or  irregular  to  draw  or 
summon  one  for  such  term.  People  v. 
Cyphers,  5  Parker,  666 ;  afli'd  31  N.  Y.  373. 

7.  A  grand  jury  having  been  impaneled, 
sworn  and  charged,  at  the  commencement 
of  the  term,  were  discharged  by  order  of  the 
court.  Afterward,  by  another  order  of  the 
court,  during  the  same  term,  the  same  per- 
sons were  reassembled  and  resumed  the 
duties  of  the  grand  jury  for  that  term. 
Held  that  there  was  no  error.  Wilson  v. 
State,  32  Texas,  112. 

8.  Where,  on  a  trial  for  murder,  it  ap- 
peared that  the  officer  had  neglected  to 
make  a  proper  return  to  a  venire  which  he 
served  for  one  of  the  grand  jurors  who 
found  the  bill,  it  was  held  that  being  still  in 
ofiice  he  could  amend  his  return  after  the 
conviction  of  the  prisoner.  Com.  v.  Parker, 
2  Pick.  550. 

9.  Proof  of  organization.  The  record 
must  afiirmatively  show  the  organization 
of  the  grand  jury;  and  the  mere  indorse- 
ment on  an  indictment,  "  A  true  bill,  J.  R. 
Dillard,  foreman  of  the  grand  jury,"  is  not 
suflScient.     Parmer  v.  State,  41  Ala.  416. 

10.  It  is  not  customary  to  insert  the 
names  of  the  grand  jurors  in  the  record  of 
each  case.  Turns  v.  Com.  6  Mete.  225.  The 
names  of  the  grand  jurors  must  appear  in 
some  part  of  the  record.  Mahan  v.  State, 
10  Ohio,  232,  But  the  venire  facias  need 
not  be  spread  upon  the  minutes  of  the  court. 
It  is  sutBcient  if  the  record  shows  the  return 
of  the  venire  and  the  selection  of  the  grand 
jury.  Conner  v.  State,  4  Yerg.  137.  The 
record  must  show  that  the  grand  jury  was 
sworn.     Abram  v.  State,  25  Miss.  589. 

11.  In  Indiana,  unless  the  record  of  the 
board  of  county  commissioners  shows  that 
the  grand  jurors  who  found  the  indictment 
were  selected  according  to  the  statute,  the 


indictment  will  be  quashed.     State  v.  Con- 
ner, 5  Blackf  325. 

12.  Two  grand  juries.  Under  the  New 
York  code,  two  grand  juries  may  sit  in  the 
same  county  at  the  same  time.  Allen  v. 
People,  57  Barb.  338. 

13.  Amendment  of  panel.  The  panel  of 
the  grand  jury,  returned  by  the  sheriff,  may 
be  amended  by  order  of  the  court,  or  a  new 
one  substituted,  at  any  time  during  the  day 
on  which  it  is  returned,  before  the  present- 
ment of  any  bills  of  indictment.  State  v. 
Rickey,  4  Halst.  293. 

14.  Objection  to.  A  person  accused  of 
crime  may,  before  he  is  indicted,  challenge 
any  one  of  the  persons  returned  on  the 
grand  jury.  Hudson  v.  State,  1  Blackf. 
317;  Jones  v.  State,  2  lb.  475;  Com.  v. 
Clark,  2  Brown,  233. 

15.  The  objection  that  the  grand  jury  has 
not  been  drawn,  summoned  and  impaneled 
according  to  law,  must  be  made  by  plea  in 
abatement  at  the  court  at  which  the  indict- 
ment is  found.  State  v.  Greenwood,  5 
Porter,  474 ;  State  v.  Leaben,  4  Dev.  305 ; 
State  V.  Freeman,  6  Blackf.  248  ;  Barney  v. 
State,  12  Smed.  &  Marsh.  68.  It  is  too  late  to 
raise  the  objection  in  the  appellate  court. 
Bass  V.  State,  37  Ala.  469  ;  Floyd  v.  State, 
30  lb.  511.  But  see  Ballair  v.  State,  6 
Blackf.   104. 

16.  After  an  indictment  has  been  filed 
and  accepted  in  court,  it  is  too  late  to  take 
exception  to  the  personal  qualifications  of 
the  grand  jurors.  Boyington  v.  State,  2 
Porter,  100;  Barney  v.  State,  17  Smed.  & 
Marsh.  68.  See  State  v.  Brown,  5  Eng.  78 ; 
State  v.  Hawkins,  5  Eng.  71. 

17.  Irregularities  in  selecting  and  im- 
paneling grand  jurors,  which  do  not  go  to 
their  incompetency,  can  only  be  objected  to 
by  way  of  challenge.  But  their  individual 
incompetency  may  be  pleaded  in  abatement 
to  the  indictment.  Huling  v.  State,  17  Ohio, 
N.  S.  583. 

18.  If  any  error  or  irregularity  has  oc- 
curred in  the  organization  of  the  grand 
jury,  the  objection  should  be  taken  upon  a 
motion  to  quash  the  indictment,  or  perhaps 
by  plea.  After  pleading  in  bar  to  the 
charge,  it   would  be  too  late  to  raise  the 


248 


GEAND  JUKY. 


How  Sworn. 


Testimony  Before. 


question.  People  v.  McCann,  3  Parker, 
373,  per  Harris,  J. ;  referring  to  People  v. 
Robinson,  3  lb.  308;  Horton  v.  State,  47 
Ala.  o8 ;  Com.  v.  Chauncey,  3  Ashm.  90. 

19.  In  Kew  York,  -where  the  prisoner  in- 
teriJOt^ed  a  special  plea,  founded  upon  the 
alleged  illegal  organization  of  the  grand 
jury,  after  the  plea  of  not  guilty  had  been 
entered  and  several  jurors  impaneled  and 
sworn,  it  was  held  that  the  refusal  of  the 
court  to  entertain  it  was  in  its  discretion, 
and  not  the  subject  of  exception.  People  v. 
Allen,  43  N.  Y.  28. 

20.  It  may  be  objected  to  a  grand  juror 
that  he  has  formed  and  expressed  an  opinion 
as_  to  the  guilt  of  the  prisoner,  or  has  shown 
feelings  of  hostility  toward  him.  But  the 
objection  must  be  made  before  the  indict- 
ment is  found.  Peoi^le  v.  Jewett,  3  Wend. 
314;  contra^  State  v.  Hughes,  1  Ala.  Goo; 
State  V.  Clarissa,  11  Ala.  57. 

21.  A  grand  juror  will  not  be  set  aside  for 
the  reason  that  he  has  been  the  prosecutor 
of  a  person  accused  of  "a  cai^ital  crime,  whose 
case  may  probably  be  brought  before  the 
grand  jury.     Case  of  Tucker,  8  Mass.  286. 

22.  How  sworn.  The  form  of  ostth  to 
grand  juries  sliould  be  substantially  fol- 
lowed. The  usual  practice  is  to  swear  the 
foreman  tirst,  and  then  to  swear  the  others, 
four  at  a  time.  Brown  v.  State,  5  Eng. 
G07. 

23.  Where  one  of  the  grand  jurors,  being 
detained,  was  not  present  when  the  rest  of 
the  grand  jurors  were  sworn,  it  was  held 
that  he  might  be  sworn  afterward.  Wad- 
lin's  Case,  11  Mass.  142.  And  see  Brown  v. 
State,  supra. 

24.  Power.  In  Pennsylvania,  the  grand 
jirry  can  act  upon  and  present  oflenses  of 
public  notoriety,  and  such  as  are  within 
their  own  knowledge,  such  as  are  given  to 
them  in  charge  by  the  court,  and  such  as 
are  sent  up  to  them  by  the  district  attorney. 
They  cannot  indict,  in  any  other  cases,  with- 
out a  previous  prosecution  before  a  magis- 
trate.    McCullough  V.  Com.  67  Penn.  St.  30. 

25.  Duty.  It  is  the  duty  of  the  grand 
jury  to  inquire  into  all  offenses  committed 
in  their  county,  whether  the  offenders  are 
or  are  not  under  arrest.     Ward  v.  State,  2 


Mo.    130;   People   v.   Hyler,   2  Parker,  566; 
State  V.  Jackson,  33  Maine,  40. 

26.  Testimony  before.  Witnesses  before 
a  grand  jury  should  be  so  sworn  that,  if 
their  evidence  is  false,  they  may  be  prose- 
cuted for  perjury.  But  the  same  nicety  in 
regard  to  evidence  is  not  required  as  on  the 
trial.     State  v.  Fasset,  16  Conn.  457. 

27.  To  justify  the  finding  of  an  indict- 
ment, the  testimony  before  the  grand  jury 
must  be  such  that,  if  unexplained,  it  would 
sustain  a  conviction.  People  v.  Hyler,  2 
Parker,  570. 

28.  Disclosing  testimony.  A  grand  juror 
may  be  compelled  to  testify,  when  necessary 
for  the  purposes  of  justice,  what  the  wit- 
nesses before  the  grand  jury  testified  to, 
either  to  contradict  witnesses,  or  otherwise. 
State  V.  Wood,  53  ISTew  Hamp.  484 ;  s.  c.  2 
Green's  Crim.  Reps.  346. 

29.  But  no  evidence  before  the  grand  jury 
can  be  used  for  the  purpose  of  invalidating 
the  indictment.  State  v.  Fassett,  16  Conn. 
457.  Where  the  defendant  filed  a  plea  in 
abatement,  that  the  pretended  indictment 
was  not  the  act  of  the  grand  jury,  and  the 
court  allowed  the  foreman  and  six  of  the 
grand  jurors  to  testify  that  no  indictment 
was  in  fact  found,  and  to  explain  how  the 
mistake  occurred,  it  was  held  error.  State 
V.  Oxford,  30  Texas,  428. 

30.  A  witness  is  not  permitted  to  disclose 
evidence  before  a  grand  jury  ;  and  a  ques- 
tion wliich  may  be  answered  in  such  a  man- 
ner as  to  make  such  disclosure,  is  improper. 
State  V.  Knight,  43  Maine,  11. 

31.  Although  a  witness  called  by  the  pros- 
ecution, and  who  denies  his  knowledge  of 
alleged  facts,  testifies  with  reluctance,  and 
manifests  a  disposition  to  conceal  what  he 
knows,  yet  he  cannot  be  asked  on  direct  ex- 
amination whether  he  did  not  swear  to  those 
facts  before  the  grand  jury.  Com.  v.  Welsh, 
4  Gray,  535. 

32.  Discharge  of  grand  jurors.  At  the 
term  of  the  court  at  which  the  indictment 
was  preferred,  after  the  grand  jury  had  been 
impanneled,  the  court,  upon  the  application 
of  two  of  the  grand  jurors,  discharged  them 
that  they  might  attend  to  their  i^rivate  busi- 
ness.     Held  not   a   good  objection   to   the 


GRAND  JURY.— HABEAS.  CORPUS. 


249 


Discharge  of  Grand  Jurors.     When  Demandable  as  a  Right. 


Application  for. 


indictment.  Denning  v.  State,  23  Ark. 
131. 

33.  After  the  grand  jury  had  been  charged, 
one  of  their  number,  upon  his  application, 
was  discharged  by  the  court,  and  a  substi- 
tute ordered  to  be  summoned  from  the  by- 
standers. Held  that  the  placing  of  this  per- 
son on  the  grand  jury,  and  his  participation 
in  their  deliberations,  vitiated  the  whole 
body.     Portis  v.  State,  23  Miss.  578. 

*%e  Indictment;  Trial. 


1.  When  demandable  as  a  right.  A 
prisoner  is  entitled  to  a  writ  of  habeas  corpus 
as  a  matter  of  right,  except  when  he  is  com- 
mitted or  detained  under  a  final  judgment. 
If  the  officer  to  whom  the  writ  is  presented 
for  allowance  decides  that  the  prisoner  is 
not  entitled  to  it,  such  decision  is  a  proper 
subject  of  review.  People  v.  Mayer,  16 
Barb.  362.  But  the  inquiry  cannot  go  be- 
hind the  sentence  of  a  court  of  competent 
jurisdiction.  Johnson  v.  U.  S.  3  McLean, 
89. 

2.  When  not  proper  remedy.  Persons 
out  on  bail  are  not  entitled  to  a  writ  of 
habeas  corpus  directed  to  their  bail.  Terri- 
tory V.  Cutler,  McCahon's  Kansas,  lo2. 

3.  In  New  Jersey,  it  was  held  that  a  writ 
of  habeas  corpus  was  not  the  proper  remedy 
for  a  guardian  to  obtain  the  custody  of  his 
ward,  where  the  ward  was  under  fourteen, 
and  chose  to  remain  with  his  mother.  State 
V.  Cheeseman,  2  South.  445. 

4.  Formal  defects  in  process  cannot  be 
corrected  by  habeas  corpus.  The  remedy  is 
either  by  motion  to  set  the  process  aside,  or 
by  certiorari.     ]\Iiles  v.  Brown,  3  Barb.  37. 

5.  It  is  not  the  province  of  the  writ  of 
h/ibeas  corpus  to  review  errors  in  the  adjudi- 
cation of  an  inferior  tribunal,  or  the  suffi- 
ciency of  errors  before  it,  but  only  to  ascer- 
tain whether  there  was  jurisdiction  to  pro- 
nounce the  sentence  of  commitment,  and 
whether  the  commitment  is  in  due  form. 
People  V.  McCormack,  4  Parker,  9 ;  Matter 
of  Prime,  1  Barb.  340;  Stoner  v.  State,  4 
Mo.  614. 


6.  Although  the  writ  of  habeas  corpus  may 
sometimes  be  employed  as  a  writ  of  error, 
yet  it  cannot  be  used  as  a  writ  of  quo  war- 
ranto in  order  to  decide  a  question  of  usur- 
pation of  office.  Matter  of  Wakker,  3  Barb. 
162. 

7.  Where  a  person  in  prison  under  sen- 
tence is  needed  for  trial  on  another  charge, 
a  habeas  corpus  should  be  issued,  directed 
to  the  keeper  of  the  prison,  stating  the  ob- 
ject for  which  he  is  wanted,  and  command- 
ing the  keeper  to  produce  him  in  court. 
When  the  prisoner  is  brought  into  court,  he 
continues  in  the  custody  of  the  keeper,  un- 
til it  is  otherwise  ordered;  and,  at  the  close 
of  the  trial,  the  court  may  order  that  he 
remain  in  such  custody  under  the  original 
sentence.  Such  order,  being  directory  and 
not  primitive,  may  be  embodied  in  the  sen- 
tence and  judgment.  State  v.  Wilson,  38 
Conn.  126. 

8.  A  writ  of  habeas  corimsi?,  not  the  proper 
remedy  for  a  person  imprisoned  on  a  ca.  sa. 
irregularly  issued ;  but  he  should  make  ap- 
plication to  the  court  by  motion  and  affi- 
davit.    Yates'  Case,  4  Johns.  317. 

9.  Application  for.  In  Alabama,  an  ap- 
plication for  a  writ  of  habeas  corpus  must 
be  by  petition,  signed  by  the  applicant,  or 
by  some  person  in  his  behalf,  and  the  peti- 
tion must  be  verified  to  the  eflFect  that  the 
statements  therein  contained  are  true  as  to 
the  best  of  his  knowledge,  information  and 
belief.     Gibson  v.  State,  44  Ala.  17. 

10.  An  affidavit  that  the  affiant  is  unlaw- 
fully detained  will  be  sufficient  to  entitle 
him  to  a  writ  of  Jiabeas  corpus,  without 
other  allegation.  White  v.  State,  1  Smed, 
&  Marsh.  149. 

11.  To  authorize  an  application  for  a  writ 
of  habeas  corpus  to  an  officer  of  an  adjoin- 
ing county,  under  the  statute  of  New  York 
(3  R.  S.  5th  ed.  883,  §§  37,  38),  there  must 
be  sufficient  evidence  that  there  is  no  officer 
in  the  county  where  the  prisoner  is  detained 
who  has  power  to  grant  the  writ,  or  that 
the  officer  is  absent,  or  has  refused  to  grant 
it,  or  is  incapable  of  acting  for  some  cause 
specially  set  forth.  An  affidavit  which  does 
not  state  that  there  is  no  officer  in  the  county 
to  grant  the  writ,  but  only  that  the  defend- 


250 


HABEAS   CORPUS. 


U.  S.  Supreme  Court. 


U.  S.  Circuit  Court. 


ant  can  find  none,  is  insufficient.  Tlie  affi- 
■davit  should  relate  to  the  day  the  applica- 
tion is  made,  and  not  to  a  previous  date. 
People  V.  Burtnett,  5  Parker,  113. 

12.  Where  a  person  detained  under  a  writ 
of  ne  exeat  petitions  for  a  writ  of  habeas 
corpus^  a  copy  not  only  of  the  writ,  but  of 
the  bill  upon  which  it  is  founded,  and  the 
judge's  order  directing  the  writ  of  ne  exeat 
to  issue,  must  accompany  the  petition,  or  a 
sufficient  excuse  be  shown  for  the  omission. 
Mr  pdi-te  Eoyster,  1  Eng.  28. 

13.  Notice  of  petition.  Notice  of  the  pe- 
tition for  a  haheas  corpus  must  be  given  to 
the  person  who  is  interested  in  continuing 
the  imprisonment,  although  he  do  not  re- 
side in  the  county.  People  v.  Pelham,  14 
Wend.  48. 

14.  U.  S.  Supreme  Court.  Where  a  per- 
son is  unlawfully  held  under  a  judgment  of 
a  Federal  court,  the  Supreme  Court  (under 
proceedings  by  haheas  corpus  and  certiorari) 
will  examine  the  record,  and,  upon  ascer- 
taining the  fact,  will  discharge  him.  Kv 
jmrte  Lange,  18  Wallace,  163;  s.  c.  2  Green's 
Crim.  Reps,  103. 

15.  The  Supreme  Court  of  the  United 
States  may  issue  a  writ  of  haheas  corpus  to 
discharge  a  person  who  stands  committed 
by  a  commissioner  of  the  U.  S.  Circuit  as  a 
fugitive  from  justice  in  Great  Britain,  after 
the  Circuit  Court  has  ordered  that  the  writ 
shall  be  dismissed  and  the  jDrisoner  re- 
manded, l/i  re  Kane,  14  How.  U.  S.  103, 
Curtis,  J.,  dissenting. 

16.  The  Supreme  Court  of  the  United 
States  has  not  jurisdiction  of  a  writ  of 
haleas  corpus  under  the  seal  of  the  Circuit 
Court  issued  and  tested  by  an  associate 
judge  of  the  Supreme  Court,  returnable 
before  him  at  chambers,  and  adjourned  by 
him  into  the  Supreme  Court  in  bank.  In  re 
Kane,  suj)ra. 

17.  U.  S.  Circuit  Court.  The  Circuit 
Court  of  the  United  States  may  bring  before 
it  by  haheas  corpus  one  of  its  deputy  mar- 
shals arrested  and  put  in  jail  under  State 
process  while  executing  a  U.  S.  writ,  and 
inquire  into  the  ground  of  his  commitment, 
and  if  illegal,  direct  his  discharge.  The 
court  will  not  only  hear  evidence  to  disprove 


the  truth  of  the  affidavits  upon  which  the 
State  authorities  proceeded,  but  will  con- 
sider the  affidavits  independently  of  such 
evidence;  and  if,  in  the  judgment  of  the 
court,  they  do  not  contain  a  prima  facie 
cause  for  arrest,  will  discharge  the  prisoner, 
without  hearing  any  counter  evidence.  In 
general,  moi'eover,  the  court  will  discharge 
him,  unless  there  is  an  oath  of  merits  by  the 
plaintifi",  or  an  affidavit  of  circumstances 
from  others  to  supply  its  place.  Ex  piarte 
.Jenkins,  2  Wall.  Jr.  521. 

18.  The  act  of  Congress  of  March  2d,  1833, 
gives  relief  by  habeas  corpus  to  one  in  State 
custody,  not  only  when  he  is  held  under  a 
law  of  the  State  which  seeks  to  punish  him 
for  executing  a  law  or  process  of  the  United 
States,  but  also  when  he  is  in  such  custody 
under  a  general  law  of  the  State  which  aj)- 
plies  to  all  persons  equally,  where  it  ajipears 
that  he  is  justified  for  the  act  done,  because 
it  was  done  in  pursuance  of  a  law  of  the 
United  States,  or  of  the  process  of  a  United 
States  court  or  judge.  U.  S.  v.  Jailer  of 
Fayette  County,  2  Abb.  265. 

19.  Jurisdiction  of  State  court  where 
party  is  held  by  Federal  authority.  A 
State  court  will  not  grant  a  writ  of  haheas 
corpus  to  a  person  committed  under  an  act 
of  Congress.  State  v.  Paine,  T.  U.  P. 
Charlt.  142. 

20.  A  regular  demand  under  the  act  of 
Congress  and  warrant  of  the  governor,  to 
surrender  a  fugitive,  cannot  be  inquired  into 
on  haheas  corpus.  State  v.  Buzine,  4  Harring. 
572. 

21.  Where  a  writ  of  haheas  corpus  issued 
by  a  State  court  is  served  on  a  United 
States  marshal  having  a  prisoner  in  custody, 
the  marshal  should  make  known  to  the 
court,  by  a  proper  return,  the  authority  by 
which  he  holds  the  prisoner  in  custody.  And 
if  the  State  authorities  should  attempt  to 
control  the  marshal  in  the  custody  of  his 
prisoner,  it  would  be  his  duty  to  resist  it, 
and  to  call  to  his  aid  aiiy  force  that  might 
be  necessarj'.  U.  S.  v.  Booth,  21  How.  U.  S. 
506. 

22.  A  State  court  or  judge  may  entertain 
proceedings  by  haheas  corpus  where  persons 
are  detained  bv  officials  of  the  United  States 


HABEAS   CORPUS. 


251 


Where  Party  is  Detained  under  State  Process. 


When  Granted. 


under  claim  of  enlistment  and  desertion,  or 
other  alleged  authority  of  the  government, 
and  may  direct  the  discharge  of  such  per- 
sons when  the  detention  is  unlawful.  Matter 
of  Reynolds,  6  Parker,  276. 

23.  A  habeas  corpxis  was  allowed  by  a  New 
York  Supreme  Court  commissioner,  directed 
to  the  commander  of  the  navy  of  the  United 
States  on  Lake  Ontario,  and  to  the  general 
commanding  the  troojas  of  the  United  States 
at  Sackett's  Harbor,  and  to  each  and  every 
subordinate  officer  under  said  commandants, 
or  either  of  them,  ordering  them  to  bring 
the  body  of  Samuel  Staoy,  Jr.,  &c.,  imme- 
diately, &c.,  together  with  the  cause,  &c., 
before  the  commissioner,  &c.  The  following 
return  was  indorsed  on  the  writ :  "  I,  Morgan 
Lewis,  general  of  division  in  the  army  of  the 
United  States,  do  return  to  the  within  writ, 
that  the  within  named  Samuel  Stacy,  Jun'r, 
is  not  in  my  custody."  Held  that  the  return 
was  evasive  and  insufficient ;  that  it  should 
have  been  that  the  prisoner  was  not  in  his 
custody,  possession,  or  power.  And  upon 
its  being  shown  by  affidavits  that  the  per- 
son was  in  fact  in  the  custody  of  the  subor- 
dinate officer,  acting  under  the  order  of 
General  Lewis,  and  that  the  return  was 
intentionally  evaded,  the  court  directed  an 
attachment  against  General  Lewis  for  con- 
tempt.    Matter  of  Stacy,  10  Johns.  337. 

24.  To  deprive  the  State  courts  of  juris- 
diction on  haleas  corpus  within  State  terri- 
tory ceded  to  the  United  States,  such  juris- 
diction must  have  been  expressly  surrendered 
by  the  State.  Matter  of  Carleton,  7  Cow. 
471. 

25.  When  the  inquiry  on  hribeas  corpus 
involves  a  question  of  conflict  between 
State  and  Federal  process,  counsel  have  no 
right  to  appear  in  defense  of  the  State 
process  without  being  duly  authorized  to 
do  so.     Ex  parte  Jenkins,  2  Wall.  Jr.  521. 

26.  Where  party  is  detained  under 
State  process.  In  New  York,  the  right  to 
discharge  a  pnsoner  indicted  and  impris- 
oned for  an  offense  not  cognizable  by  a 
Court  of  Sessions,  on  the  ground  that  he 
has  not  been  tried  within  the  time  pre- 
scribed by  law,  is  not  confined  to  the  Court 
•of  Oyer  and  Terminer,  but  the  application 


may  be  made  to  any  court  having  jurisdic- 
tion to  issue  a  writ  of  habeas  corpus.  People 
V.  Jefferds,  5  Parker,  518. 

27.  In  New  York,  where  the  chancellor 
committed  an  officer  of  the  Court  of  Chan- 
cery for  malpractice  and  contempt,  and  a 
judge  of  the  Supreme  Court,  in  vacation,  on 
habeas  corpus,  discharged  the  prisoner,  and 
the  chancellor  afterward  recommitted  him 
for  the  same  cause,  it  was  held  that  the 
chancellor  was  not  liable  to  the  penalty 
given  by  the  fifth  section  of  the  habeas  corpus 
act  (2  R.  S.  571,  §§  59,  60,  sess.  24,  ch.  65). 
Yates  V.  Lansing,  Jr.,  9  Johns.  395. 

28.  In  Alabama,  a  court,  under  the  con- 
stitutional provision  which  gives  it  "  a 
general  superintendence  and  control  of  in- 
ferior jurisdictions,"  may  grant  a  writ  of 
habeas  corpus,  upon  the  refusal  of  a  judge  of 
the  Circuit  Court  or  chancellor.  Ex  parte 
Chaney,  8  Ala.  424. 

29.  In  Missouri,  a  judge  of  the  Circuit 
Court  may,  during  term  time  or  vacation, 
issue  a  writ  of  habeas  corpus,  and  if  he  im- 
properly discharge  the  prisoner,  the  jailer  or 
other  officer  who  has  him  in  custody  will 
not  be  liable.     Martin  v.  State,  13  Miss.  471. 

30.  Whether  the  court  may,  by  a  writ  of 
habeas  corpus  to  the  executive  officer  of 
another  court,  take  a  prisoner  from  the  cus- 
tody of  the  latter — query.  Sims'  Case,  7 
Cush.  285. 

31.  "When  granted.  In  Georgia,  where 
prisoners  had  been  in  jail  two  terms,  were 
ready  for  trial  at  each  term,  and  at  the  sec- 
ond term  petitioned  to  be  brought  to  trial, 
it  was  held  that  they  were  properly  dis- 
charged on  habeas  corpus.  State  v.  Segar, 
T.  U.  P.  Charit.  24. 

32.  In  New  York,  a  writ  of  habeas  corpus 
ad  testificandum,  may  be  allowed  to  bring  up 
a  prisoner  charged  in  execution  upon  a  ca.  sa. 
to  testify  in  relation  to  his  own  application 
for  a  discharge  as  an  insolvent.  Wattles  v. 
Marsh,  5  Cow.  176. 

33.  When  refused.  A  person  committed 
upon  an  indictment  for  murder  cannot  be 
discharged  upon  habeas  corpus  by  proving 
his  innocence,  however  conclusive  the  proof 
may  be,  l)ut  must  abide  the  event  of  a  trial 
by  jury.     Where  the  application  to  be  ad- 


252 


HABEAS   CORPUS. 


When  Refused. 


Nature  and  Extent  of  Inquiry. 


mittcd  to  bail  is  made  before  indictment, 
tlie  inquiry  as  to  guilt  or  innocence  must  be 
confined  to  the  proof  on  which  the  commit- 
ment was  ordered.  People  v.  McLeod,  1 
Hill,  377;  People  v.  Ruloff,  5  Parker,  77. 

34.  A  writ  of  habeas  corprcs  refused  where 
it  appeared  that  the  petitioner  was  in  the 
custody  of  the  sheriff  under  a  commitment 
from  the  District  Court,  after  conviction  for 
felony.     Ex  jxir/e  Ezell,  40  Texas,  451. 

35.  The  protection  of  the  English  haheas 
corpus  act  (31  Car.  II,  ch.  2),  against  unlaw- 
ful impeachment,  extended  only  to  the  re- 
lease of  the  prisoner  on  bail,  when  the  of- 
fense was  bailable.  Peojole  v.  McLeod,  1 
Hill.  377. 

36.  Where  the  petition  of  a  writ  of  Jialeas 
corpus  shows  that  the  petitioner,  if  brought 
before  the  court,  could  not  be  discharged, 
the  writ  will  not  be  granted.  Sims'  Case,  7 
Cusii.  285. 

37.  The  inquiry  on  habeas  corpnis  cannot 
go  behind  the  sentence  of  a  court  of  com- 
petent jurisdiction,  Johnson  v.  U.  S.  3  Mc- 
Lean, 89;  Ex  parte  Ball,  2  Gratt.  588;  Peo- 
ple V.  Shea,  3  Parker,  562. 

38.  Form.  Forms  of  writs  of  habeas  cor- 
pus and  certiorari.,  allowance,  and  return. 
People  V.  Tompkins,  1  Parker,  224. 

39.  Service.  A  writ  of  habeas  corpms 
was  applied  for,  and  issued  in  open  court, 
and  read  to  the  relator,  who  was  present 
with  and  had  the  custody  of  the  prisoner. 
Held.,  that  the  failure  of  the  relator  to  ask 
for  the  writ  for  the  purpose  of  making  his 
return  was  an  acceptance  of  service  and 
waiver  of  the  delivery  of  the  writ  to  him. 
People  V.  Bradley,  60  111.  390. 

40.  Return.  The  material  facts  of  the 
return,  which  are  not  denied  by  the  pris- 
oner, must  be  taken  as  true.  In  re  Da  Costa, 
1  Parker,  129. 

41.  Rule  to  appear.  A  rule  to  appear 
upon  a  haheas  corpus  cannot  l)e  taken  before 
the  return  day,  though  the  writ  be  actually 
returned  before  that  time.  Jones  agst. 
Spicer,  6  Cow.  391. 

42.  Certiorari  for  removal.  The  prose- 
cuting attorney  is  the  proper  person  to  ob- 
tain a  certiorari  for  the  removal  into  the 
Supreme  Court  of  proceedings  commenced 


by  habe'is  corpus.  People  v.  Hicks,  15  Barb. 
153. 

43.  Duty  of  court  to  inquire  into  legal- 
ity of  detention.  Where,  on  habeas  corpixs, 
it  appears  thi^t  the  prisoner  is  detained  on  a 
warrant  committing  him  for  examination  as 
an  alleged  fugitive  from  justice  from  another 
State,  the  fact  that  his  examination  is  not 
finished  is  no  ground  for  the  officer  issuing 
the  writ  to  omit  to  inquire  into  the  legality 
of  his  detention.  Matter  of.  Hay  ward,  1 
Sandf.  701. 

44.  Nature  and  extent  of  inquiry.     On 

habeas  corpus,  a  court  or  judge  before  whom 
a  prisoner  is  brought  who  was  arrested  as  a 
fugitive  from  justice,  by  a  warrant  from  the 
executive  of  one  State,  on  the  requisition  of 
the  executive  of  another  State,  the  only  in- 
quiry is  whether  the  warrant  on  which  he 
is  arrested  recites  that  the  prisoner  has  been 
demanded  by  the  executive  of  the  State 
from  which  he  is  charged  to  have  fled,  and 
that  a  copy  of  the  indictment,  or  an  affida- 
vit charging  him  with  having  committed 
treason,  felony,  or  other  crime,  certified  by 
the  executive  demanding  him  as  authentic, 
has  been  presented.  Matter  of  Clark,  9 
Wend.  212. 

45.  Where,  on  the  return  to  a  writ  of 
habeas  corpus.,  it  appeared  that  the  prisoner 
was  detained  under  a  warrant  issued  by  a 
magistrate  upon  a  complaint  on  oath,  it  was 
held  proper  for  the  court  to  go  behind  the 
warrant  and  inquire  into  the  legality  of  the 
imj)risonment.  People  v.  Tompkins,  1  Par- 
ker, 224 ;  In  re  Heilbonn,  lb.  429. 

46.  Upon  a  habeas  corpus.,  the  court  will 
not  inquire  into  the  regularity  of  the  pro- 
ceedings before  the  judge  who  issued  the 
warrant  on  which  the  defendant  was  impris- 
oned, but  only  as  to  his  colorable  authority. 
Matter  of  Prime,  1  Barb.  340. 

47.  Where  a  United  States  officer  has 
been  indicted  and  arrested  under  State  pro- 
cess for  riot,  assault  and  battery,  and  assault 
with  intent  to  kill,  the  court,  on  habeas 
corpus.,  will  look  beyond  the  indictment,  and 
entertain  evidence  going  to  show  that  the 
alleged  ofl'ense  was  committed  in  the  proper 
execution  of  an    order,   process,    or  decree 


HABEAS   CORPUS. 


253 


Evidence  for  Prisoner. 


Discharge  of  Prisoner. 


of  a  Federal   court.     Ex  parte  Jenkins,  2 
Wall.  Jr.  521. 

48.  In  New  York,  it  has  been  held  that 
although  the  court  will  not  go  behind  the 
indictment,  yet  that  on  a  commitment  be- 
fore indictment,  the  question  of  guilt  or 
innocence  may  be  inquired  into  on  the 
return  to  the  writ  of  habeas  corpus^  the  pro- 
ceedings being  in  the  nature  of  an  appeal 
from  the  decision  of  the  committing  magis- 
trate. People  V.  Martin,  1  Parker,  187; 
People  V.  Tompkins,  lb.  224. 

49.  Where  the  return  to  a  habeas  corpus 
states  that  the  prisoner  is  detained  by  virtue 
of  process,  the  validity  and  existence  of  the 
process  are  the  only  facts  which  can  be  in- 
vestigated. If  the  warrant  is  sufficient  on 
its  face,  the  prisoner  cannot  be  discharged. 
The  sufficiency  of  the  evidence  on  which  it 
issued  cannot  be  inquired  into.  Benuac  v. 
People,  4  Barb.  31. 

50.  In  Indiana,  it  has  been  held  that  the 
judge  who  issues  the  writ,  may,  if  the  au- 
thority by  which  the  prisoner  is  detained 
is  defective,  hear  evidence  as  to  his  guilt, 
and  remand,  recognize,  or  discharge  him. 
State  V.  Best,  7  Blackf.  611. 

51.  When  evidence  must  be  produced. 
To  authorize  the  remand  of  a  prisoner  held 
on  an  irregular  commitment,  and  brought 
before  the  judge  on  habeas  corpus,  the  testi- 
mony must  be  produced  on  the  return  of  the 
writ,  or  at  the  hearing.  It  is  too  late  to 
present  it  on  u  subsequent  day  when  the 
judge  decides  to  discharge  the  prisoner. 
Matter  of  Hayward,  1  Sandf.  701  ;  Matter  of 
Fetter,  3  Zabr.  311. 

\/%2.  Evidence  for  prisoner.  When  a 
party  imprisoned  is  brought  before  a  judge 
on  a  writ  of  habeas  corpus,  he  may  inquire 
into  the  jurisdiction  of  the  tribunal  by 
which  he  was  committed,  and  if  he  can 
show  that  such  tribunal  had  no  jurisdiction 
to  try,  convict,  or  commit,  he  is  entitled  to 
his  discharge.  People  v.  Rawson,  61  Barb. 
619. 

53.  On  a  traverse  to  a  return  on  a  writ  of 
habeas  corpus,  tlie  process  by  which  the  pris- 
oner is  held  being  regular  on  its  face,  the 
burden  of  proof  is  on  the  prisoner.  Matter 
of  Hayward,  supra. 


54.  The  inquiry  on  the  traverse  of  tlie 
return  to  a  habeas  corpus  being  summary,  the 
prisoner  may  show  the  grounds  of  his  arrest 
and  detention  by  the  best  testimony  at  hand 
or  which  he  can  procure  with  reasonable 
diligence,  without  reference  to  the  ordinary 
rules  of  evidence.  Matter  of  Hayward,  1 
Sandf.  701;  Matter  of  Fetter,  3  Zabr.  311. 

55.  By  the  return  to  a  writ  of  habeas  cor- 
2ms,  it  appeared  that  the  prisoner  was  con- 
victed at  a  Court  of  Special  Sessions,  held 
by  three  justices.  It  was  alleged  on  behalf 
of  the  prisoner,  by  way  of  a  traverse  of  this 
return,  that  the  said  court  was  in  fact  held 
by  two  of  the  police  justices  only,  one  of 
them  not  being  in  fact  present  when  the 
prisoner  was  arraigned,  tried,  or  sentenced. 
Held  that  evidence  aliunde  was  admissible 
to  prove  such  allegations.  People  v.  Diviue, 
5  Parker,  62. 

56.  In  a  proceeding  by  habeas  corpus  in  the 
United  States  District  Court,  the  petitioner 
is  a  competent  witness  as  to  a  question  of 
fact.     Matter  of  Reynolds,  6  Parker,  276. 

57.  Evidence  as  to  legality  of  deten- 
tion. The  justice  who  issued  the  warrant, 
and  the  clerk  of  his  court,  may  be  witnesses 
to  prove  on  what  papers  the  warrant  issued. 
Matter  of  Fetter,  3  Zabr.  311. 

58.  Where  a  person  committed  by  a  mag- 
istrate, is  brought  up  on  habeas  corpus,  for 
inquiry  into  the  cause  of  detention,  addi- 
tional evidence  may  be  submitted  to  the 
judge  to  show  that  the  prisoner  is  legally 
detained.  People  v.  Richardson,  4  Parker, 
656. 

59.  Discharge  of  prisoner.  Where  there 
are  two  grounds  of  detention,  one  good,  and 
the  other  bad,  the  court  may  on  habeas 
corpus,  discharge  the  prisoner  as  to  the  void 
cause,  and  remand  him  as  to  the  other.  Bx 
Ijarte  Badgley,  14  Wend.  472. 

60.  An  order  of  a  commissioner  or  other 
officer,  discharging  a  prisoner  from  custody 
on  habeas  corpzis,  is  good  until  reversed,  if 
he  have  jurisdiction;  otherwise  the  order 
may  be  treated  as  void.  Spalding  v.  People, 
7  Hill,  301. 

61.  Effect  of  decision.  The  decision  of 
an  officer  having  power  to  issue  and  decide 
upon  a  writ  of  habeas  corpus,  upon  any  sub- 


254 


HABEAS    COEPUS.— HOMICIDE. 


Effect  of  Decision 


Murder. 


What  Constitutes. 


sequent  application,  is  conclusive  between 
the  same  parties  when  the  subject-matter  is 
the  same,  and  there  are  no  new  facts.  In  re 
Da  Costa,  1  Parker,  139;  People  v.  Burtnett, 
5  lb.  113. 

82.  But  a  prior  decision  under  a  previous 
writ  of  habeas  corpus,  is  not  conclusive, 
where  the  first  decision  cannot  be  reviewed 
by  writ  of  error.  Matter  of  Reynolds,  6 
Parker,  276. 

63.  Where  a  commissioner  of  the  Supreme 
Court  has  jurisdiction  of  the  subject-matter, 
and  of  the  parties,  his  decision  cannot  be 
impeached  collaterally.  Therefore,  the  dis- 
charge of  the  prisoner  is  a  protection  to  the 
sheriff  who  had  him  in  custody,  although 
the  discharge  was  erroneously  granted. 
Wiles  V.  Brown,  3  Barb.  37. 


See  Peddlers. 


Ijomiciic. 


1.  Murder. 

(«)    What  constitutes. 

(b)  Indictment. 

(c)  Evidence  in  general. 

(d)  Presumptions. 

(e)  Admissions  and  declnrations  of  de- 
fendant. 

if)  Admissions  and  declarations  of  co- 
defendant, 
{g)  Declarations  of  person  l-illed. 
(h)  Dying  declarations, 
(i)   Character  of  person  killed, 
(j)   Character  of  defendant. 
(k)  Burden  of  j^roof. 
(l)   Weight  and  sufflciency  of  proof, 
(m)   Charge  of  court. 
(/i)  Verdict, 
{o)  Sentence. 

2.  Manslaughter. 
{a)    What  constitutes, 
{h)  Indictment. 

(c)  Trial. 

(d)  Evidence. 

(e)  Verdict. 


3.  Justifiable  homicide. 

(a)  la  self-defense. 

(h)  I?i  protecting  property. 

(c)  In  prevention  of  felony. 

(d)  In  case  of  shipwrecTc. 
{e)  In  ease  of  accident. 
(/)  Evidence. 

1.  Murder. 
(a)   What  constitutes. 

1.  Definition.  Murder  is  the  killing  of  a 
reasonable  being,  with  malice  aforethought 
express  or  implied  by  law.  State  v.  Zellers, 
2  Halst.  220 ;  U.  S.  v.  Magill,  1  Wash.  C.  C. 
463 ;  Com.  v.  York,  9  Mete.  93 ;  Com  v. 
Webster,  5  Cush.  295.  The  statute  of  Mis- 
sissippi, in  defining  the  ofl'ense,  uses  the 
words  "premeditated  design,"  instead  of 
"malice  aforethought."  McDaniel  v.  State, 
8  Smed.  &  Marsh.  401. 

2.  An  instruction  that  "  murder  is  the 
unlawful  killing  of  one  person  by  another,^ 
with  malice  either  express  or  implied,"  is 
erroneous.  The  killing  should  be  charged 
as  having  been  done  "  unlawfully  and  with 
malice  aforethought."  Perry  v.  State,  43 
Ala.  21. 

3.  That  part  of  the  common-law  definition 
of  murder  embraced  in  the  expression  "  the 
king's  peace,"  has  reference  to  the  state  and 
condition  of  the  deceased;  that  is,  as  to 
whether  or  not  he  was  entitled  to  the  pro- 
tection of  the  English  laws;  a  subject,  or  an 
alien;  enemy  or  traitor  in  arms;  or  more 
anciently,  an  infidel,  or  guilty  of  praemunire. 
State  V.  Dunkley,  3  Ired.  116. 

4.  May  be  in  heat  of  passion.  A  homi- 
cide may  be  murder,  although  done  in  the 
heat  of  passion.  And  the  same  is  true, 
thougli  the  passion  be  aroused  by  just  cause, 
if  the  killing  be  done  after  sufficient  time 
has  elapsed  for  reason  to  resume  its  sway. 
Smith  V.  State,  49  Ga.  482. 

5.  Where  a  father  was  told  in  the  evening, 
that  his  son,  a  small  boy,  had  been  wantonly 
whipped  by  a  man  whom  he  met  the  follow- 
ing evening,  and  with  his  fist  and  feet  beat 
and  stamped,  while  he  was  unresisting,  with 
so  much  violence  that  the  man  died  the  next 
night,  it  was  held  murder.  McWhirter's 
Case,  3  Gratt.  584. 


HOMICIDE. 


255. 


Murder. 


What  Constitutes. 


6.  The  intentional  killing  of  another 
without  provocation,  and  not  in  sudden 
combat,  is  none  the  less  murder  because  the 
oflFender  was  in  a  state  of  jjassion.  People 
V.  Sullivan,  3  Seld.  396. 

7.  No  -words  applied  by  one  man  to  an- 
other will  justify  the  use  of  a  deadly  weap- 
on; nor  can  they  be  the  lawful  occasion  of 
that  "  heat"  which  will  reduce  the  act  of 
killing  from  murder  to  manslaughter.  U.  S. 
V.  Carr,  1  Woods.  480. 

8.  No  provocation  however  great,  will 
extenuate  a  homicide,  when,  from  the  weap- 
on used,  or  the  nature  of  the  attack,  an 
intention  to  kill,  or  to  do  some  great  bodily 
harm  is  manifest.  State  v.  Cheatwood,  3 
Hill,  S.  C.  459;  Com.  v.  Webster,  5  Cush. 
395 :  People  v.  Austin,  1  Parker,  154 ;  State 
V.  Johnson,  1  Ired.  354;  Felix  v.  State,  18 
Ala.  730. 

9.  If,  after  angry  words,  the  prisoner  took 
up  &n  axe  and  approached  the  deceased  with 
the  design  to  take  away  his  life,  or  to  do 
him  some  great  bodily  harm,  and  the  de- 
ceased had  sufficient  reason  to  believe  that 
such  was  the  intention  of  the  prisoner,  he 
had  a  right  to  strike  in  self-defense,  although 
t'ae  prisoner  was  not  yet  within  striking 
distance ;  and  such  striking  by  the  deceased 
will  not  amount  to  a  legal  provocation  to 
mitigate  the  killing  to  manslaughter.  State 
V.  Baker,  1  Jones,  367. 

10.  In  North  Carolina,  it  has  been  held 
that  no  provocation  short  of  a  battery,  or 
assault  at  least,  will  extenuate  a  killing  to 
manslaughter.  State  v.  Barfielci,  8  Ired. 
344;  State  v.  Tackett,  1  Hawks,  310.  And 
the  same  in  Indiana,  when  the  homicide  has 
been  effected  with  a  deadly  weapon.  Beau- 
champ  V.  State,  6  Blackf.  399. 

11.  Moderate  provocation,  given  by  a 
woman  or  child  to  a  man  of  average 
strength,  even  though  it  amounts  to  a 
blow,  will  not  reduce  a  homicide  from 
murder  to  manslaughter.  Com.  v.  Hosier, 
4  Barr,  364.  And  see  State  v.  Merrill,  3 
Dev.  3G9. 

12.  To  kill  an  alien  enemy  after  he  has 
laid  down  liis  arms,  and  especially  when  he 
is  confined  in  prison,  is  murder.  State  v. 
Gut,  13  Minn.  341. 


13.  Intoxication  no  defense.      It  is  no 

defense  to  an  indictment  for  murder,  that 
the  accused  was  intoxicated  when  he  com- 
mitted the  act.  People  v.  Robinson,  1 
Parker,  649 ;  unless  his  habits  of  drunken- 
ness have  caused  an  habitual  madness.  Hale 
V.  State,  11  Humph.  154;  Pirtle  v.  State,  9 
lb.  663 ;  Cluck  v.  State,  40  Ind.  363 ;  s.  c.  1 
Green's  Crim.  Reps.  734.  But  see  pout,  suh. 
336. 

14.  Need  not  be  enmity.  To  constitute 
murder,  it  is  not  necessary  that  the  perpe- 
trator should  have  enmity  toward  the  de- 
ceased. It  is  sufficient  if  there  be  either 
deliberate  malice,  or  circumstances  of  cruel- 
ty and  malignity.  Nor  is  it  necessary  that 
the  party  should  himself  inflict  the  mortal 
wound,  if  present  aiding  and  abetting  the 
act.  U.  S.  V.  Ross,  1  Gallison,  634 ;  State  v. 
Jarrett,  1  Ired.  76. 

15.  The  following  instruction  was  held  not 
unexceptionable :  That  the  unlawful  killing 
of  a  human  being,  without  express  malice^ 
and  under  such  circumstances  as  would  not 
make  the  offense  murder  in  the  first  degree, 
and  not  under  sudden  provocation  and  in 
the  heat  of  passion,  or  under  such  circum- 
stances as  would  reduce  the  offense  to  man- 
slaughter, would  be  murder  in  the  second 
degree,  and  it  would  not  be  necessary  that 
the  jury  shall  more  particularly  consider 
under  what  circumstances  malice  afore- 
thought w^ould  be  implied.  State  v.  Cou- 
ley,  39  Maine,  78. 

16.  May  be  committed  by  infant.  Al- 
though an  infant  between  seven  and  fourteen 
years  of  age,  is  prima  facie  incapable  of 
committing  crime,  yet  if  the  evidence  shows 
beyond  a  reasonable  doubt,  that  he  under- 
stood the  nature  and  consequences  of  his 
act,  and  the  act  indicates  intelligent  design 
and  malice,  he  may  be  convicted  of  murder. 
Godfrey  v.  State,  31  Ala.  333. 

17.  Must  be  intent  to  kill.  In  general, 
an  intent  to  kill  is  essential  to  constitute 
murder,  except  where  the  accused  is  at  the 
moment  engaged  in  perpetrating  a  felony. 
People  V.  Austin,  1  Parker,  154. 

18.  The  intent  to  kill  may  be  formed 
on  the  instant.  If  there  Ije  sufficient 
deliberation  to  form  a  design  to  take   life. 


1256 


HOMICIDE. 


Murder. 


What  Constitutes. 


and  to  put  that  design  into  execution  by 
destroying  life,  it  will  constitute  murder, 
whether  the  design  be  formed  at  the  instant 
of  striking  the  fatal  blow,  or  have  been  a 
long  time  contemplated.  People  v.  Clark, 
3  Seld.  385;  Com.  v.  York,  9  Mete.  93; 
Anthony  v.  State,  Meigs,  265 ;  Shoemaker 
V.  State,  12  Ohio,  43;  People  v.  Freel,  48 
Cal.  436  ;  O'Brien  v.  People,  48  Barb.  274. 

19.  Under  the  statute  of  New  York,  de- 
claring the  killing  of  a  human  being  to  be 
murder  when  clone  from  a  premeditated 
design  to  cause  the  death  of  the  person 
killed,  it  was  held  erroneous  for  the  court 
to  instruct  the  jury  that  it  was  murder  if 
the  intent  to  kill  was  formed  at  the  instant 
of  striking  the  fatal  blow.  Sullivan  v.  Peo- 
ple, 1  Parker,  347.  And  see  People  v. 
Johnson,  lb.  291 ;  Wilson  v.  People,  4  lb. 
619. 

20.  But  when  the  killing  occurs  with  an 
intent  to  effect  death,  however  instantane- 
ously the  intent  is  formed  prior  to  the  com- 
mission of  the  deed,  the  crime  is  murder 
under  the  statutes  of  New  York  of  1860  and 
1862.  Lowenberg  v.  People,  5  Parker,  414; 
Lanergan  v.  People,  6  lb.  209;  s.  c.  50 
Barb.  266 ;  Walters  v.  People,  6  Parker,  15. 

21.  Under  the  law  of  New  York,  as  it  ex- 
isted prior  to  1860,  the  penalty  for  homicide 
committed  with  premeditation  was  death. 
Since  the  act  of  1862,  such  killing  is  murder 
in  the  tirst  degree,  and  the  penalty  is  the 
same.  The  word  "  premeditated  "  is  used 
in  the  same  connection  in  the  old  and  in  the 
present  statute,  and  has  the  same  meaning 
and  construction.  '  Lanergan  v.  People,  su- 
pra. 

22.  The  statute  of  New  York  has  given 
no  definition  of  murder  in  the  second  degree, 
except  negatively,  that  it  is  not  murder  in 
the  first  degree,  nor  any  of  the  degrees  of 
manslaughter.  It  cannot  occur  when  the 
homicide  was  committed  with  premedita- 
tion. O'Brien  v.  People,  48  Barb.  274,  per 
Leonard,  J. 

23.  In  Missouri,  every  deliberate  and  in- 
tentional killing  is  murder  in  the  first  degree, 
although  the  design  to  kill  was  formed  but 
an  instant  before  it  was  executed.  State  v. 
Dunn,     18    Mo.    419;    State  v.    Jennings, 


lb.;  Green  v.  State,  13  lb.  382;  State  v. 
Hays,  23  lb.  287 ;  State  v.  Starr,  38  lb.  270 ; 
State  V.  Holme,  54  lb.  153.  It  is  the  same 
in  Iowa.  State  v.  Johnson,  8  Iowa,  525; 
overruling  Fouts  v.  State,  4  Greene,  500. 

24.  In  Tennessee,  to  constitute  murder,  the 
intention  to  kill  need  not  have  pre-existed 
in  the  mind,  but  may  be  formed  on  the  in- 
stant. Lewis  V.  State,  3  Head,  127.  And 
in  Nevada,  it  has  been  held  that  willful,  de- 
liberate and  premeditated  killing  may  take 
place  where  the  design  to  kill  is  formed  at 
the  very  moment  of  striking  the  fatal  blow. 
State  V.  Millain,  3  Nev.  409.  In  California, 
the  following  instruction,  on  a  trial  for  mur- 
der, was  held  proper :  "  In  deliberating,  there 
need  be  no  apjireciable  space  of  time  between 
the  intention  to  kill  and  the  act  of  killing. 
They  may  be  as  instantaneous  as  successive 
thoughts  of  the  mind.  It  is  only  necessary 
that  the  act  of  killing  be  preceded  by  con- 
currence of  will,  deliberation  and  premedi- 
tation on  the  jiart  of  the  slayer;  and  if  such 
is  the  case,  the  killing  is  murder  in  the  first 
degree,  no  matter  how  rapidly  these  acts  of 
the  mind  may  succeed  each  other,  or  how 
quickly  they  may  be  followed  by  the  act  of 
killing."  People  v.  Williams,  43  Cal.  344; 
s.  c.  1  Green's  Crim.  Reps.  412;  approving 
People  V.  Nichol.  34  Cal.  211. 

25.  In  Virginia,  wdiere  the  prisoner  as  he 
approached  the  deceased,  and  first  came  in 
view  of  him  at  a  short  distance,  there  formed 
a  murderous  design,  and  walked  up  quickly 
and  killed  him  without  provocation,  it  was 
held  murder  in  the  first  degree.  Whiteford 
V.  Com.  6  Rand.  721. 

26.  But  in  Kentucky,  it  has  been  held 
that  charging  the  jury  that  the  existenceyb?- 
an  instant  before  the  killing,  of  an  unlawful 
intent  to  take  life  "is  sufficient  to  constitute 
the  legal  malice  required  to  make  the  killing 
murder,"  is  misleading  and  a  misapj^lication 
of  the  correct  principle,  that  "  it  is  sufficient 
to  constitute  murder  that  it  api^ear  that 
malice  existed  at  the  time  of  the  killing, 
without  regard  to  the  time  which  it  had  be- 
fore existed.  Donnellan  v.  Com.  7  Bush, 
676. 

27.  In  Tennessee,  where  the  intent  to  kill 
was   formed   upon   the  sudden   impulse  of 


HOMICIDE. 


257 


Murder. 


What  Constitutes. 


passion,  without  any  previous  design  to  kill, 
it  was  held  murder  in  the  second  degree, 
although  the  act  was  committed  willfully 
and  maliciously.  Clark  v.  State,  8  Humph. 
671 ;  Anthony  v.  State,  Meigs,  265. 

28.  Degree  of  offense  determined  by  in- 
tent. The  intention  with  which  the  act  is 
committed  distinguishes  murder  as  it  exists 
at  common  law  and  murder  as  it  is  understood 
and  defined  in  Pennsylvania  by  the  statute 
of  1794.  Where  the  act  producing  death  is 
malicious,  and  perpetrated  with  an  intent  to 
take  life,  the  offense  is  murder  in  the  first 
degree;  but  where  no  such  intent  exists, the 
crime  is  murder  in  the  second  degree.  Com. 
V.  Keeper,  2  Asbm.  227 ;  Com.  v.  Williams, 
lb.  69. 

29.  In  Pennsylvania,  it  was  held  that  to 
constitute  murder  in  the  first  degree  the 
homicide  should  not  only  be  willful,  pre- 
meditated, malicious  and  without  legal  justi- 
fication, but  the  act  must  have  been  com- 
mitted with  the  formed  intention  to  take 
life.  Com.  v.  Murray,  2  Ashm.  41 ;  Com.  v. 
Williams.  lb.  69. 

30.  In  Tennessee,  the  distinguishing  char- 
acteristic of  murder  in  the  first  degree  is  the 
existence  of  a  fixed  design  on  the  part  of  the 
assailant  that  the  act  shall  result  in  the 
death  of  the  party  assailed.  Swan  v.  State, 
4  Humph.  136;  Riley  v.  State,  9  lb.  657. 
When  the  killing  is  perpetrated  by  poison 
or  lying  in  wait,  the  fact  of  lying  in  wait 
will  be  evidence  of  a  malicious  and  premed- 
itated purpose.  lb.  And  see  Dale  v.  State, 
10  Yerg.  551 ;  Anthony  v.  State,  Meigs, 
265;  Copeland  v.  State,  7  Humph.  479; 
Dame  v.  State,  2  lb.  439.  But  such  pre- 
meditation as  to  make  it  murder  in  the  first 
degree  under  the  statute  will  not  be  inferred 
from  the  employment  of  a  deadly  weapon. 
Clark  V.  State,  8  Humph.  671.  If  the  de- 
fendant, with  premeditated  intent  to  kill 
one  person,  contrary  to  his  intention  killed 
another,  it  would  not  be  murder  in  the  first 
degree.     Bratton  v.  State,  10  lb.  103. 

31.  Murder  by  poisoning.  To  constitute 
the  act  of  administering  poison  it  is  not 
necessary  that  there  should  have  been  a  de- 
livery of  the  poison  to  the  person  poisoned. 
It  is  sufficient  if  it  was  taken  from  a  place 

17 


where  it  was  put  by  the  accused  for  that 
purpose.     Sunipter  V.  State,  11  Fla.  247. 

32.  The  criminal  act  of  administering 
poison  is  not  consummated  by  simply  pre- 
scribing or  delivering  the  poison;  but  it 
must  have  been  actually  swallowed  pursuant 
to  the  direction.  Where,  therefore,  the 
poison  is  furnished  in  one  county  to  a  person 
who  carries  it  into  another  county  and  there 
takes  it  and  dies,  the  crime  is  committed  in 
the  latter  county.  Robbins  v.  State,  8  Ohio, 
131. 

33.  In  riot  or  affray.  The  fact  that  a 
riot  w^as  in  progress  at  the  time  of  a  homi- 
cide, does  not  in  law  distinguish  the  homi- 
cide either  in  kind  or  degree.  State  v.  Jen- 
kins, 14  Rich.  215. 

34.  Where  murder  is  committed  by  riot- 
ers, an  indictment  charging  it  as  the  act  of 
one  of  them,  will  be  sustained  by  evidence 
that  any  other  of  them  gave  the  fatal  stroke, 
or  that  it  was  given  by  some  one  of  them, 
though  it  does  not  appear  by  which.  State 
V.  Jenkins,  supra. 

35.  But  when  an  innocent  person  is  ac- 
cidentally killed  by  persons  engaged  in  sup- 
pressing a  riot,  a  rioter  cannot  be  convicted 
of  murder  or  manslaughter  therefor.  Com. 
V.  Campbell,  7  Allen,  541. 

36.  It  is  no  justification  of  a  homicide  re  • 
suiting  from  an  affray  which  the  defendant 
commenced,  that  when  it  was  committed 
he  was  acting  on  the  defensive.  State  v. 
Hudson,  59  Mo.  135. 

37.  Where  one  interferes  to  separate  per- 
sons engaged  in  an  affray,  and  gives  notice 
of  his  intention,  and  is  killed  by  one  of 
them,  it  is  murder.  State  v.  Cheatwood,  2 
Hill,  S.  C.  459. 

38.  But  it  is  erroneous  to  charge  that 
if  the  prisoner  inflicted  a  mortal  wound,  and 
then  another  person  having  no  connection 
with  him,  struck  the  deceased  a  blow  which 
proved  fatal,  the  prisoner  would  still  be 
guilty  of  murder.  State  v.  Scates,  5  Jones, 
420. 

39.  By  engaging  another  in  a  fight.  If 
a  i)erson  go  after  another  and  engage  him  in 
a  fight  in  order  to  stab  him,  and  death 
ensues,  it  will  be  murder  in  the  assailant,  no 
matter  what  provocation  was  then  given,  or 


258 


HOMICIDE. 


Murder, 


What  Constitutes. 


how  the  assailant's  passion  rose  during  tlie 
combat.     State  v.  Lane,  4  Ired.  113, 

40.  Upon  a  quarrel,  one  of  the  parties  re- 
treated about  fifty  yards,  apparently  wishing 
to  avoid  a  fight.  The  other  followed,  over- 
took, stabbed,  and  killed  him,  the  latter 
having  stopped  and  first  struck  with  his 
fist.  Held  mui'der.  State  v.  Howell,  9  Ired. 
485. 

41.  A.  being  unarmed,  was  pursued  by  B. 
to  a  bouse  in  which  A.  took  refuge.  B. 
then  tried  to  break  down  the  door  with  an 
axe,  but  not  succeeding,  threw  the  axe 
away.  The  door  being  opened  by  A.,  B. 
collared  him,  and  after  a  tussle,  killed  him 
with  a  deadly  weapon.  Held  mnvSiev.  State 
V.  Hargett,  Go  K  C.  669. 

42.  If  a  person  attack  another  with  malice 
aforethought,  even  though  he  should  be 
driven  to  the  wall,  and  kill  his  adversary 
there  to  save  his  own  life,  he  will  be  guilty 
of  murder.  State  v.  Hill,  4  Dev.  &  Batt. 
491. 

43.  On  a  trial  for  murder,  the  evidence 
tended  to  show  that  the  prisoner  had  fol- 
lowed the  deceased  with  a  deadly  weapon 
for  the  purpose  of  demanding  satisfaction 
for  an  insult,  and  to  kill  the  deceased,  or  to 
do  him  great  bodily  harm  should  the  de- 
mand for  satisfaction  be  refused ;  that  the 
deceased  turned  upon  him,  at  the  same 
time  putting  his  hand  to  his  side  as  if  to 
draw  a  weapon,  and  that  thereupon  the 
prisoner  killed  him  by  a  blow  with  his  gun. 
Held  that  a  verdict  of  guilty  was  proper. 
State  v.  Owen,  Phil.  N.  C.  425. 

44.  If  a  person  prepares  and  conceals  a 
deadly  weapon  before  entering  into  a  fight 
which  he  provokes,  with  the  determination 
to  use  it  if  necessary,  in  the  fight,  and  he 
kill  his  antagonist  in  the  fight,  it  is  murder. 
Price  V.  State,  36  Miss.  531. 

45.  The  prisoner  having  prepared  a  deadly 
weapon  with  an  intention  to  use  it  in  case  he 
got  into  a  fight  with  deceased,  sought  him 
with  the  expectation  of  having  a  conflict 
with  him.  Hekl,  that  the  killing  was 
murder,  although  the  deceased  made  the 
first  assault.     State  v.  Hogue,  6  Jones,  3S1. 

46.  If  one  goes  into  a  fight  having  upon 
his  person  a  deadly  weapon,  intending  from 


the  first  to  use  the  same  if  necessary  to  en- 
able him  to  overcome  his  antagonist,  and  in 
the  fight,  uses  the  same  and  kills  his  antago- 
nist, he  is  guilty  of  murder,  notwithstanding 
he  habitually  carried  the  weapon.  Green  v. 
State,  28  Miss.  687. 

47.  If  A.,  from  previous  resentment,  on 
meeting  B.,  strike  him  with  a  whip,  in  order 
to  induce  B.  to  draw  a  pistol,  intending  to 
shoot  B.  as  soon  as  he  draws,  and  B.  does 
draw,  and  A.  immediately  shoots  and  kills 
him,  it  is  murder.  State  v.  Martin,  2  Ired. 
101. 

48.  In  mutual  combat.  Where  parties, 
by  mutual  understanding,  engage  in  a  con- 
flict, and  death  ensues  to  either,  the  slayer 
will  be  guilty  of  murder.  State  v.  Under- 
wood, 57  Mo.  40. 

49.  When  a  mutual  combat  is  entered  into 
deliberately,  as  in  duels,and  death  ensues,  it 
is  murder,  but  where  it  is  in  hot  blood,  the 
the  homicide  is  manslaughter.  U.  S.  v. 
Mingo,  2  Curtis  C.  C.  1. 

50.  Where  a  person  enters  a  contest  with 
a  dangerous  weapon,  and  fights  under  an 
unfair  advantage,  though  mutual  blows  be 
struck,  it  is  not  manslaughter,  but  murder. 
State  V.  Hildreth,  9  Ired.  429. 

51.  On  a  trial  for  murder,  it  appeared  that 
the  prisoner  and  the  deceased  after  fighting 
were  separated  at  the  request  of  the  prisoner, 
who  was  not  a  match  for  his  antagonist; 
that  the  prisoner,  being  held  by  a  bystander, 
drew  his  knife  and  swore  that  he  would  kill 
the  deceased ;  that  the  prisoner  broke  away 
from  the  person  holding  him  and  ran  toward 
the  deceased,  who  had  retreated  two  hun- 
dred and  twenty-five  yards,  and  who,  upon 
being  ajiprised  that  the  prisoner  was  coming, 
left  the  road  where  he  was  Avalking  and 
armed  himself  with  a  rail  from  a  fence ;  that 
when  the  prisoner  reached  the  place  where 
the  deceased  was,  the  latter  gave  back  and 
struck  the  former  several  blows  on  the  head 
with  the  rail  as  he  rushed  on,  and  that  the 
rail  breaking  some  ten  paces  from  where  the 
deceased  began  to  give  back,  the  prisoner 
closed  and  inflicted  the  mortal  wound.  A 
verdict  of  guilty  having  been  rendered,  the 
court  declined  to  disturb  it.  State  v.  Mc- 
Cants,  1  Spear,  384. 


HOMICIDE. 


250 


Murder. 


What  Constitutes. 


52.  By  third  person  interfering  in 
fight.  While  two  persons  were  fighting  in 
a  room  the  defendant  rushed  in,  and  with- 
out any  provocation  inflicted  on  one  of  them 
a  fatal  stab.  Held  murder.  Conner  v.  State, 
4  Yerg.  137. 

53.  Where  a  person  who  was  not  insulted 
or  threatened  dismounted  from  his  horse, 
armed  himself  with  a  club,  stood  between 
two  other  persons,  who  were  about  to  engage 
in  a  fight,  and  killed  one  of  them,  it  was 
held  that  it  was  murder.  Johnston's  Case,  5 
Gratt.  660. 

54.  A.  and  B.  were  fighting  with  their 
fists,  when  the  son  of  A.,  a  boy  seventeen 
years  of  age,  came  up,  and  taking  hold  of 
B.'s  coat  collar  behind,  stabbed  B.  from 
l^ehind  in  the  right  side,  from  which  he 
died.  It-was  proved  that  the  son  had  for  a 
week  previous  to  the  homicide  manifested 
strong  animosity  toward  the  deceased,  and 
had  repeatedly  stated  that  on  receiving  any 
provocation  from  him,  he  would  kill  him.  It 
was  further  proved  that  he  stated  after  the 
fight,  and  before  he  knew  the  serious  char- 
acter of  the  wound,  that  he  had  been 
prompted  by  a  desire  and  intent  to  kill  on 
account  of  the  previous  conduct  of  the  de- 
ceased. Held  murder.  Bristow  v.  Com.  15 
Gratt.  634. 

55.  In  resisting  officer.  When  a  person 
resists  an  ofiicer,  or  those  engaged  in  assist- 
ing him  in  making  a  lawful  arrest,  in  a  law- 
ful way,  and  slays  one  of  the  arresting 
party,  it  is  murder.  State  v.  Oliver,  2  Hous- 
ton, Del.  585.  And  it  will  be  murder  if,  in 
making  such  resistance,  he  accidentally  kills 
a  third  person.  Angell  v.  State,  36  Texas, 
542;  s.  c.  1  Green's  Crim.  Reps.  653.  But 
if  the  arrest  be  without  lawful  authority, 
and  the  resistance  is  only  such  as  is  pro- 
voked by,  and  in  due  proportion  to  the 
assault,  and  the  killing  is  without  malice,  it 
is  neither  murder  nor  manslaughter.  He 
who  undertakes  to  resist  an  officer  after  he 
has  made  known  his  authority,  does  so  at 
his  peril,  if  the  authority  of  the  officer  is 
valid.  But  the  circumstances  of  such  resist- 
ance are  proper  to  be  considered  on  the 
question  of  malice.     State  v.  Oliver,  supra. 

56.  Where,    after    the    commission  of    a 


felony,  the  wrong-doers  flee,  and  within 
three  or  four  hours  are  followed  by  an  offi- 
cer, who  overtakes  them  twelve  miles  from 
the  scene  of  the  crime,  it  is  an  immediate 
or  fresh  pursuit,  and  if  the  officer,  upon 
overtaking  them,  j^oints  a  gun  at  them,  at 
the  same  time  exclaiming:  "You  are  my 
prisoners — surrender,"  they  have  no  right  to 
fije  upon  him,  and  if  they  do  so,^  and  he  is 
killed,  it  is  murder.  People  v.  Pool,  27 
Cal.  572. 

57.  On  the  trial  of  an  indictment  under 
the  act  of  Congress  of  Feb.  24,  1864,  §  12 
(13  Stats,  at  Large,  8),  for  murder  in  resisting 
an  enrolment,  held  that  if  an  officer,  while 
engaged  in  his  official  duties,  is  killed  by  a 
person  under  the  influence  of  hostility  to  the 
law,  or  of  a  violent  temper,  which  is  roused 
by  no  fault  of  the  officer,  or  of  revenge,  it  is 
not  necessary  to  sustain  a  conviction  to 
show  that  the  defendant  intended  to  ob- 
struct the  execution  of  the  law ;  but  that  it 
would  be  otherwise  if  the  officer  became  in- 
volved in  a  quarrel  upon  some  matter  hav- 
ing no  connection  with  his  official  duties. 
U.  S.  v.Gleason,  1  Woolw.  C.  C.  75;  lb.  128. 

58.  In  misdemeanors,  the  voluntary  killing 
of  the  accused,  in  the  effort  to  arrest  him, 
is  murder,  though  he  cannot  be  otherwise 
overtaken.  Williams  v.  State,  44  Ala.  41. 
/  59.  In  resisting  trespass.  A  bare  tres- 
pass against  the  property  of  another,  not  his 
dwelling,  does  not  justify  the  owner  in  using 
a  deadly  weapon  in  its  defense,  and  if  he 
use  such  weapon  and  kill  the  trespasser,  it 
will  be  murder,  notwithstanding  the  killing 
may  have  been  necessary  to  prevent  the 
trespass.  If  the  intention  was  not  to  take 
life,  but  to  chastise  or  deter  the  trespasser, 
or  if  the  killing  take  place  in  the  passion  or 
heat  of  blood,  it  may  be  manslaughter.  Com. 
V.  Drew,  4  Mass.  391 ;  State  v.  Vance,  17 
Iowa,  138. 

60.  When  a  person  goes  to  anotliers  house 
in  a  peaceable  manner,  and  ui^on  being 
ordered  away,  and  not  going  immediately, 
is  killed  by  the  owner,  the  slayer  is  guilty  of 
murder,  although  it  be  proved  that  he  had 
previously  forbidden  the  deceased  from  com- 
ing there.  State  v.  Smith,  3  Dev.  &  Batt. 
117. 


2G0 


HOMICIDE. 


Murder. 


What  Constitutes. 


61.  It  is  erroneous  for  the  court  to  charge 
the  jury  tliat  "  if  they  believed  that  the  de- 
ceased had  taken  the  horse  of  the  prisoner, 
and  was  riding  him  off  beyond  the  reach  of 
probable  recapture,  and  that  the  prisoner 
after  repeatedly  hailing  him  slew  the  tres- 
passer with  a  deadly  weapon,  he  is  not 
guilty  of  murder.  McDaniel  v.  State,  8  Smed. 
&3Iarsh.  401. 

62.  In  case  of  adultery.  It  is  only  where 
the  wife  has  been  discovered  in  the  act  of 
adultery,  that  the  law  mitigates  the  killing 
of  her  or  her  paramour,  on  the  ground  of 
passion,  unless  the  jDrisoner  was  smarting 
under  a  provocation  so  recent  and  strong 
that  he  could  not  be  considered  as  being  at 
the  time  the  master  of  his  own  understand- 
ing. State  V.  Holme,  54  Mo.  153 ;  State  v. 
John,  8  Ired.  330. 

63.  On  the  trial  of  an  indictment  for  the 
murder  by  a  husband  of  his  wife,  it  is  not 
competent  for  him  to  show  that  for  a  long 
time  previous  to  the  homicide,  he  had  been 
cognizant  of  the  adulterous  conduct  of  his 
wife,  either  in  excuse,  or  as  tending  to  prove 
his  insanity.     Sawyer  v.  State,  35  Ind.  80. 

64.  But  evidence  on  a  trial  for  murder, 
that  the  accused  was  informed  of  his  wife's 
adultery  is  admissible  to  show  that  he  com- 
mitted the  crime  in  a  state  of  frenzy  where 
it  appears  that  there  was  so  short  an  interval 
between  the  time  of  committing  the  offense 
and  the  information  that  there  was  no  op- 
portunity for  the  passion  it  would  naturally 
excite  to  subside.  Sanchez  v.  People,  22 
N.  Y.  147. 

65.  Although  where  a  husband  kills  a 
person  caught  in  the  act  of  adultery  with  his 
wife  it  is  manslaughter,  yet  if  he  kill  him 
afterward  because  he  believed  that  he  was 
going  away  with  her  to  commit  another 
similar  act,  it  is  murder.  State  v.  Samuel, 
3  Jones,  74  •,  State  v.  Neville,  6  lb.  423. 

66.  On  a  trial  for  murder  it  was  shown 
that  about  a  year  previously  there  had  been 
criminal  intercourse  between  the  deceased 
and  the  prisoner's  wife ;  and  at  the  time  of 
the  homicide  the  prisoner  finding  the  de- 
ceased and  his  wife  in  conversation,  attacked 
him  with  a  stone  and  knife  and  killed  him. 


Held  that  the   prisoner  was   properly  con- 
victed.    State  V.  Avery,  64  N.  C.  608. 

67.  A  husband  having  suspicion  that  his 
wife  had  committed  adultery  with  A.,  set  B. 
to  watch  them,  and  B.  killed  A.  Held  on 
the  trial  of  B.  for  the  murder  that  it  was  not 
competent  for  him  to  show  that  A.  had  com- 
mitted adultery  with  the  wife.  People  v. 
Horton,  4  Mich.  67. 

68.  On  a  trial  for  murder,  it  was  proved 
that  the  prisoner  going  to  his  sister's  house 
at  a  late  hour  in  the  night  heard  a  noise  in 
her  room,  and  suspecting  that  she  was  in  the 
act  of  adultery,  burst  open  the  door  of  her 
room,  where  he  foimd  his  sister  in  her  night 
dress  and  the  deceased  with  her,  and  that  he 
thereupon  stabbed  the  deceased  twice  in  the 
back  and  once  in  the  breast,  inflicting  upon 
him  wounds  from  which  he  died.  Held  that 
there  was  not  sufficient  provocation  to  re- 
duce the  killing  to  manslaughter.  Lynch 
V.  Com.  77  Penn.  St.  205. 

69.  While  committing  other  offense.  At 
common  law,  if  a  person  kill  another  with 
an  axe,  with  malice  aforethought,  and  with 
an  intent  to  rob  him,  upon  a  sudden  heat, 
but  without  any  adequate  provocation,  it  is 
murder.     Mitchell  v.  State,  8  Yerg.  514. 

70.  When  a  felony  is  about  to  be  com- 
mitted, a  bystander  may  use  such  force  to 
prevent  it  as  may  be  necessary ;  and  if  while 
so  engaged,  he  is  intentionally  killed,  it  will 
be  murder  in  the  slayer.  Dill  v.  State,  25 
Ala.  15. 

71.  Where  a  person  engages  in  the  prose- 
cution of  an  unlawful  design  against  another, 
and  uses  poison  to  accomplish  such  design, 
which,  by  its  natural  action,  produces  a 
greater  injury  than  he  anticipated,  he  is  not 
by  his  ignorance  of  the  probable  extent  of 
such  injury  relieved  from  criminal  respon- 
sibility for  the  act.  People  v.  Carmichael,  5 
Mich.  10.  It  is  no  justification  that  the  de- 
fendant administered  poison  to  another  with 
the  intent  to  obtain  his  money  by  stealth, 
and  not  to  injure  his  person.  People  v.  Ad- 
wards,  lb.  22. 

72.  Where  a  female  is  pregnant,  and  a 
drug  is  administered  to  her  for  the  puipose 
of  destroying  the  child,  which  results  in  the 
death  of  the  mother,   it  is  murder  in  the 


HOMICIDE. 


261 


Murder. 


What  Constitutes. 


second  degree,  unless  the  intention  was  to 
take  away  the  life  of  the  mother  as  well  as 
to  destroy  her  offspring,  in  which  case,  it  is 
murder  in  the  first  degree.  Com.  v.  Keeper, 
2  Ashm.  237. 

73.  If  a  person  enters  on  another's  land 
and  builds  a  house  there,  and  the  owner 
goes  to  the  premises  for  the  purpose  of 
forcibly  ejecting  the  intruder  and  tearing 
down  the  house,  and  in  the  conflict  that 
ensues  the  intruder  is  killed,  it  is  murder  or 
manslaughter  according  to  circumstances. 
People  V.  Houshell,  10  Cal.  83. 

74.  A  custom  of  violating  the  law  will 
not  exempt  such  violation  from  punishment. 
The  defendants  went  to  a  wedding  without 
invitation,  were  civilly  treated,  and  in  the 
evening  began  a  disturbance,  in  which  a 
person  was  so  injured  that  on  the  third  day 
after  he  died.  In  defense  it  was  claimed 
that  the  defendants  did  no  more  than  engage 
in  a  frolic  which  was  the  custom  of  the 
country.  Held  that  a  conviction  of  murder 
in  the  second  degree  was  proper.  Bankus 
V.  State,  4  Ind.  114. 

75.  By  several  in  prosecution  of  com- 
mon design.  Where  a  person  is  engaged  in 
a  common  illegal  undertaking  with  another, 
and  the  latter  gives  the  blow  which  causes 
death,  the  fonner  may  be  guilty  as  a  princi- 
pal, although  he  did  not  actually  assist  in 
inflicting  the  fatal  blow.  Stij)p  v.  State,  11 
Ind,  63. 

76.  Where,  on  a  trial  for  murder,  the 
evidence  shows  that  there  was  a  conspiracy 
to  commit  the  ofiiense,  and  that  both  con- 
spirators were  present  aiding  and  abetting 
the  common  design,  it  is  immaterial  by 
which  of  them  the  fatal  shot  was  fired. 
People  V.  Woody,  45  Cal.  389. 

77.  Where  the  wife  is  a  voluntary  active 
party  with  her  husband  in  the  commission 
of  a  robbery,  and  while  both  are  so  engaged 
he  commits  a  murder,  she  is  chargeable  with 
the  same  crime  as  the  husband.  Miller  v. 
State,  25  Wis.  384. 

78.  Where  two  are  indicted  for  murder, 
and  the  one  who  is  charged  with  having 
committed  the  deed  is  proved  to  have  only 
been  present  aiding  and  abetting,  and  the 
other  is  proved  to  have  given  the  mortal 


blow,  the  indictment  is  supported,  it  being 
in  law  the  stroke  of  both.  State  v.  Anthony, 
1  McCord,  285. 

79.  Therefore,  if  the  indictment  charges 
that  A.  gave  the  mortal  blow,  and  that  B. 
and  C.  were  present  aiding  and  abetting, 
and  it  is  proved  that  B.  was  the  person  who 
dealt  the  blow,  and  that  A.  and  C.  were 
present  aiding  and  abetting,  it  is  not  a  ma- 
terial variance,  as  the  blow  is  adjudged  in 
law  to  be  the  stroke  of  every  one  of  them. 
Brister  v.  State,  26  Ala.  107. 

80.  Where  death  ensues  by  the  act  of  an- 
other in  pursuit  of  an  unlawful  design, 
without  any  intention  to  kill,  it  is  murder 
or  manslaughter,  according  to  the  circum- 
stances of  the  case.  State  v.  Smith,  33  Maine, 
369. 

81.  If  several  conspire  to  seize  by  robbery 
property  belonging  to  another,  and  escape 
with  it,  and  if  necessary  to  kill  any  person 
who  shall  oppose  them  in  the  execution  of 
the  design,  and  death  ensues  in  the  prosecu- 
tion of  the  common  purjiose,  it  is  murder  in 
all  who  are  present  aiding  and  abetting. 
People  V.  Pool,  37  Cal.  573. 

82.  Where  several  conspired  to  seize  with 
force  a  vessel,  and  run  away  with  her,  and 
a  person  opposing  the  design  was  killed,  it 
was  held  murder  in  those  who  were  aiding 
and  abetting.     U.  S.  v.  Ross,  1  Gallis.  624. 

83.  I-f  a  number  of  persons  combine  to 
commit  an  unlawful  act,  and  death  ensue 
from  anything  done  in  the  prosecution  of 
the  design,  it  is  murder  in  all  who  take  part 
in  the  transaction.  If  the  design  be  to 
commit  a  trespass,  the  death  must  occur  in 
the  prosecution  of  the  original  design  to 
make  it  murder  in  all.  But  if  the  design  be 
to  commit  a  felony,  it  will  be  murder  in  all, 
although  death  ensue  apart  from  the  original 
design.  U.  S.  v.  Ross,  supra  ;  State  v.  Shel- 
ledy,  8  Iowa,  477. 

84.  The  following  instruction  was  held 
proper:  "It  is  no  defense  to  a  party  asso- 
ciated with  others  in,  and  engaged  in  a 
robbery,  that  he  did  not  propose  or  intend 
to  take  life  in  its  perpetration,  or  that  he 
forbade  his  associates  to  kill,  or  that  he 
disapproved  or  regretted  that  any  person 
was  thus  slain   by   his   associates.     If  the 


262 


HOMICIDE. 


Murder. 


What  Constitutes. 


liomicide  in  question  was  committed  by  one 
of  his  associates  engaged  in  the  robbery,  in 
furtherance  of  their  common  purpose  to  rob, 
he  is  as  accountable  as  though  his  own  hand 
had  intentionally  given  the  fatal  blow." 
People  V.  Vasquez,  49  Cal.  560.  See  People 
V.  Geiger,  49  Cal.  643. 

85.  On  a  trial  for  murder,  the  following 
charge  of  the  judge  was  held  to  be  as  favor- 
able as  the  law  would  warrant:  That  if  the 
shot  that  caused  the  death  was  fired  by  an- 
other hand  than  that  of  the  prisoner,  the 
jury  must  be  satisfied  that  there  was  an 
actual  and  overt  concert  and  complicity  to 
effect  that  precise  object.  Ruloff  v.  People, 
45  K  Y.  213. 

86.  The  time  when  an  illegal  combination 
and  arrangement  was  made  which  resulted 
in  murder  is  not  material,  so  long  as  it  was 
made  before  the  actual  commission  of  the 
offense.     lb. 

87.  A  person  who  is  constructively  present 
by  performing  his  part  in  an  unlawful  and 
felonious  enterprise  exjiected  to  result  in 
homicide — such  as  keeping  watch  at  a  dis- 
tance to  prevent  surprise,  or  the  like — is 
guilty  as  a  principal,  although  the  murder 
is  committed  by  some  other  of  the  party. 
State  V.  Nash,  7  Iowa,  347. 

88.  It  is  erroneous  to  charge  the  jury  that 
if  the  murder  was  perpetrated  with  the 
knowledge  and  consent  or  connivance  of 
the  defendant,  he  is  guilty  as  a  principal. 
Clem  V.  State,  33  Ind.  418.  There  can  be 
no  criminal  responsibility  for  anything  not 
fairly  within  the  common  enterprise,  and 
which  might  be  expected  to  happen  if  oc- 
casion should  arise  for  any  one  to  do  it. 
Where  therefore  j^arties  combine  to  commit 
a  crime,  and  some  of  them  in  trying  to  escape 
perpetrate  a  homicide,  one  who  did  not  con- 
sent, and  was  not  engaged  in  the  homicide. 
Avill  not  be  liable.  People  v.  Kuapp,  26  Mich. 
106;  s.  0.  1  Green's  Crim.  Reps.  252. 

89.  A.,  B.  and  C.  having  been  jointly  in- 
dicted, A.  as  principal,  and  B.  and  C.  as 
aiders  and  abettors  in  the  murder  of  D.,  and 
A.  tried  separately  and  acquitted,  the  fol- 
lowing instruction  on  the  trial  of  B.  and  C. 
was  held  misleading  and  erroneous :  "  If  the 
jury  believe  from  the  evidence,  that  A.  will- 


fully shot  and  killed  the  deceased  without 
premeditation,  or  without  the  intention  to 
consummate  by  his  act  the  death  of  the  de- 
ceased, and  that  B.  and  C.  were  then  and 
there  present  aiding,  abetting  and  assisting 
A.  to  do  the  aforesaid  act,  without  premedi- 
tation or  malice  aforethought  on  their  part, 
then  you  will  find  the  defendants  guilty  of 
murder  in  the  second  degree."  State  v. 
Phillips,  24  Mo.  475. 

90.  One  who  aids  and  assists  another  in 
committing  a  homicide  is  a  principal,  and 
may  be  indicted  and  punished,  although  the 
one  who  inflicted  the  mortal  wound  has  not 
been  taken.  State  v.  Rochelle,  2  Brev.  338 ; 
Beets  V.  State,  Meigs,  106. 

91.  By  acts  regardless  of  life.  If  an  un- 
lawful act  be  done  deliberately,  and  with 
intention  of  doing  mischief,  or  great  bodily 
harm,  or  of  mischief  indiscriminately,  and 
death  ensue  contrary  to  the  original  inten- 
tion, it  will  be  murder.  But  if  the  act  was 
committed  heedlessly,  without  any  mis- 
chievous intention,  it  will  be  manslaughter 
only ;  and  if  death  ensue  from  the  perform- 
ance of  a  lawful  act,  it  will  be  murder,  man- 
slaughter, or  misadventure,  according  to  the 
circumstances.  Ann  v.  State,  11  Humph. 
150;  Com.  v.  York,  9  Mete.  93. 

92.  If  persons  in  the  pursuit  of  their  law- 
ful and  common  occupation  see  that  danger 
will  probably  arise  to  others  from  their  acts, 
and  yet  persist  without  giving  sufficient 
warning  of  the  danger,  and  death  ensues,  it 
will  be  murder.  Lee  v.  State,  1  Cold.  Tenn. 
62. 

93.  Death  resulting  from  the  following 
acts,  has  been  held  murder  in  the  offender. 
By  wantonly  and  heedlessly  throwing  timber 
into  the  street  of  a  populous  town  ;  by  felo- 
niously shooting  at  tame  fowls  with  intent 
to  steal  them;  by  wantonly  permitting  wild 
beasts  to  go  at  large ;  by  riding  an  unruly 
horse  into  a  crowd ;  by  a  mother  exposing 
her  infant  child  in  a  garden;  by  overseers 
of  the  poor  sending  an  infant  pauper  child, 
from  one  parish  to  the  other  in  a  contest 
which  should  support  it,  until  it  died  of  cold 
and  starvation ;  by  a  son  wantonly'  exposing 
his  sick  father  to  the  cold  so  that  he 
perished  ;  by  a  mother  hiding  her  child  ic' 


HOMICIDE. 


263 


Murder. 


What  Constitutes. 


a  hog  pen  where  it  is  killed.    Com.  v.  York, 
9  Mete.  93. 

94.  Where  the  prisoner  shot  at  another 
on  horseback,  with  the  avowed  intention  to 
cause  the  horse  to  throw  him,  and  the  ball 
hit  a  third  person  and  killed  him,  it  was 
murder.  State  v.  Smith,  2  Strobh.  77.  See 
State  V.  Sisson,  3  Brev.  58. 

95.  When  a  person  enters  a  house  for  the 
felonious  purpose  of  killing  any  one,  and 
voluntarily  fires  his  gun  in  execution  of  that 
design,  the  killing  of  his  friend,  though  not 
intended,  will  be  murder.  If  in  such  case 
the  firing  was  accidental,  he  will  be  guilty 
of  manslaugliter.  If  without  any  such  special 
purpose  he  voluntarily  and  recklessly  fires 
into  a  crowd,  and  kills  his  friend  or  any 
other  person,  he  will  be  guilty  of  murder. 
Golliher  v.  Com.  2  Duvall,  Ky.  163 ;  Sparks 
V.  Com.  3  Bush,  Ky.  111. 

96.  Subdivision  2,  of  §  5,  of  the  statute  of 
New  York  defining  murder,  was  designed  to 
provide  for  that  class  of  cases,  and  no  others, 
where  the  acts  resulting  in  death  are  cal- 
culated to  put  the  lives  of  many  persons  in 
jeopardy  without  being  aimed  at  any  one  in 
particular,  and  perpetrated  with  a  full 
consciousness  of  the  probable  consequences. 
Drury  agst.  People,  10  N.  Y.  120. 

97.  On  a  trial  for  murder  in  New  York,  it 
appeared  that  the  meeting  of  the  accused 
and  the  deceased  was  casual,  without  pre- 
vious acquaintance ;  that  the  accused,  tak- 
ing ofiense  at  some  trifling  remarks  made  by 
the  deceased  in  passing  him  near  midnight, 
stabbed  the  deceased.  It  was  held  that  as 
the  killing  was  probably  without  any  intent 
to  take  life,  but  "  by  an  act  imminently  dan- 
gerous to  others,  and  evincing  a  depraved 
mind  regardless  of  human  life,  although 
without  any  design  to  efi"ect  the  death  of 
any  particular  individual,"  it  was  not  within 
the  definition  of  murder  in  the  second  de- 
gree, but  was  murder  in  the  first  degree,  or 
manslaughter  in  the  third  or  fourth  degree. 
People  V.  Skeehan,  49  Barb.  217. 

98.  By  cruel  treatment.  The  legal  mean- 
ing of  malice  aforethought,  as  applied  to 
cases  of  homicide,  applies  to  all  cases  of 
homicide  however  sudden  the  occasion 
when    the    act  is    done    with    such    cruel 


circumstances  as  show  a  wicked,  depraved, 
and  malignant  spirit.  U.  S.  v.  Cornell,  2 
Mason,  91 ;  State  v.  Turner,  Wright,  20 ; 
State  V.  Smith,  2  Strobh.  77;  Anthony  v. 
State,  13  Smed.  &  Marsh.  263 ;  Ann  v.  State, 
11  Humph.  1.50.  What  constitutes  a  cruel 
and  unusual  manner  of  killing,  is  to  be  de- 
termined by  the  jury.  State  v.  Linney,  52 
Mo.  40 ;  s.  c.  1  Green's  Crim.  Reps.  753. 

99.  Where  a  seaman,  being  in  a  condition 
of  great  debility,  so  that  he  could  not  safely 
go  aloft,  which  was  known  to  the  master, 
and  the  latter  nevertheless  persisted  with 
brutal  malignity  in  compelling  him  to  do  so, 
and  the  seaman  fell  from  the  mast  and  was 
drowned,  it  was  held  that  he  was  guilty  of 
murder.  U.  S.  v.  Freeman,  4  Mason,  505. 
And  see  State  v.  Hoover,  4  Dev.  &  Batt. 
365,  where  the  brutal  treatment  of  a  slave, 
by  his  master,  resulting  in  the  death  of  the 
slave,  was  held  to  be  murder. 

100.  If  correction  given  by  parents,  mas- 
ters, and  other  persons  having  authority  in 
foro  domestico,  exceed  the  bounds  of  due 
moderation,  and  death  ensue,  it  will  be 
either  murder  or  manslaughter,  according 
to  the  circumstances.  Where  the  deceased 
was  stripped  naked  by  his  stepfather,  placed 
on  his  back  with  his  feet  tied,  so  kept  every 
day  from  morning  until  dinner,  for  a  week, 
and  beaten  day  after  day  with  a  heavy 
leather  strap,  a  knotted  cord  four  double, 
and  an  iron  ramrod,  until  he  died,  it  was 
held  murder.     State  v.  Harris,  63  N.  C.  1. 

101.  By  advising  suicide.  Where  one 
advises  another  to  commit  suicide,  and  the 
other,  in  consequence  of  the  advice,  kills 
himself,  the  adviser  is  guilty  of  murder  as 
principal.  Com.  v.  Bowen,  18  Mass.  356 ; 
s.  c.  2  Wheeler's  Crim.  Cas.  226. 

102.  On  the  trial  of  an  indictment  for  the 
murder  of  a  woman  by  poison,  it  was  held 
correct  to  charge  the  jury,  that,  if  by  way  of 
persuasion  or  agreement  jointly  to  commit 
suicide,  the  defendant  induced  the  deceased 
to  swallow  the  poison,  with  the  intent  on 
his  part  to  destroy  her  life,  he  being  present 
at  the  time;  and  she,  influenced  by  such 
persuasion  or  agreement,  swallowed  the 
poison  knowing  it  to  be  deadly,  and  intend- 
ing thereby,  by  virtue  of  such  agreement,  to 


264 


HOMICIDE. 


Murder. 


What  Constitutes. 


destroy  her  own  life ;  or  if  by  force  in  any 
manner,  he  compelled  her  to  swallow  down 
the  poison,  it  constituted  an  administering 
of  poison.  Blackburn  v.  State,  23  Ohio,  N. 
S.  146. 

103.  Death  from  unskillful  treatment. 
If  a  wound  be  inflicted,  not  dangerous  in 
itself,  and  the  death  which  ensues  was 
caused  by  the  erroneous  treatment  of  it,  the 
original  author  will  not  be  liable.  Parsons 
V.  State,  21  Ala.  300. 

104.  But  where  a  person  dies  from  a 
wound  inflicted  with  a  murderous  intent, 
the  fact  that  he  had  no  surgeon,  or  an  un- 
skillful one,  or  a  nurse  whose  treatment  may 
have  aggravated  the  original  hurt,  cannot 
mitigate  the  crime  of  the  person  whose 
malice  caused  the  death.  To  do  that  it 
must  appear  that  the  real  cause  of  the  death 
was  misconduct,  malpractice,  or  ill  treat- 
ment on  the  part  of  other  persons  than  the 
accused.  State  v.  Scott,  13  La.  An.  274. 
And  where  the  wound  was  adequate  to  cause 
death,  it  is  no  excuse  to  show  that  had 
proper  attention  been  given,  the  deceased 
might  have  recovered.  State  v.  Baker,  1 
Jones,  267;  Com.  v.  McPike,  3  Cush.  181  ; 
McAllister  v.  State,  17  Ala.  434.  Therefore, 
on  the  trial  of  an  indictment  for  mm'der  by 
shooting  with  a  pistol,  it  was  held  correct 
for  the  court  to  charge  the  jury  that  if  the 
effect  of  the  circumstances  intervening  be- 
tween the  pistol  wound  and  the  death  was 
merely  to  prevent  recovery  that  might  oth- 
erwise have  taken  place,  or  to  aggravate 
or  hasten  the  effect  of  the  pistol  wound, 
that  wound  might  still  be  considered  the 
cause  of  the  death.  Com.  v.  Costley,  118 
Mass.  1. 

105.  When  death  ensues  from  a  wound 
given  in  malice,  but  not  in  its  nature  mortal, 
but  which,  being  neglected  or  mismanaged, 
the  party  dies,  the  accused  will  be  held 
guilty  of  the  murder,  unless  he  can  make  it 
clearly  appear  that  the  maltreatment  of  the 
wound,  or  the  medicine  administered  to  the 
patient,  or  his  own  misconduct,  and  not  the 
wound  itself,  was  the  sole  cause  of  death. 
State  V.  Morphy,  33  Iowa,  270. 

106.  On  a  trial  for  murder  by  stabbing, 
the  following  instruction  was  held  proper: 


That  if  the  juiy  were  satisfied  that  the 
wounds  inflicted  by  the  defendant  were  im- 
properly and  unskillfully  treated  by  the 
surgeons  in  attendance,  and  that  such  treat- 
ment hastened  or  contributed  to  the  death 
of  the  deceased,  the  defendant  was  not  for 
this  reason  entitled  to  an  acquittal.  Com. 
V.  Hackett,  2  Allen,  136. 

107.  Where  a  wound  is  apparently  mortal, 
and  a  surgical  operation  is  performed  in  a 
proper  manner,  under  circumstances  which 
render  it  necessary  in  the  opinion  of  com- 
petent surgeons,  upon  one  who  has  been 
wounded  by  another,  and  such  operation  is 
itself  the  immediate  cause  of  death,  the 
person  who  inflicted  the  wound  will  be  re- 
sponsible ;  but  not  if  the  death  results  from 
grossly  erroneous  surgical  or  medical  treat- 
ment. Coffman  v.  Com.  10  Bush,  Ky. 
495. 

108.  On  a  trial  for  murder,  the  evidence 
left  it  doubtful  whether  the  deceased  came 
to  his  death  from  the  wound,  or  from  the 
improper  treatment  of  it  by  the  attending 
surgeon  in  sewing  it  up.  The  prisoner's 
counsel  requested  the  court  to  charge  that 
if  the  wound  was  not  mortal,  and  it  clearly 
appeared  that  the  deceased  came  to  his 
death  from  the  wrong  traatment,  and  not 
from  the  wound,  they  must  acquit  the 
prisoner.  This  charge  the  court  gave,  with 
this  qualification,  "  that  if  the  ill-treatment 
relied  on,  was  the  sewing  up  of  the  wound, 
the  defendant  would  not  be  excused;  if 
otherwise,  guilty.  Held  error.  Parsons  v. 
State,  21  Ala.  300.  Goldwaite,  J.,  dissent- 
ing. 

109.  If  the  death  of  the  deceased  was 
hastened  by  the  act  of  the  prisoner,  his 
guilt  is  not  extenuated  because  death  would 
probably  have  been  the  result  of  a  disease, 
with  which  the  deceased  was  afflicted  at  the 
time.     State  v.  Morea,  2  Ala.  275. 

110.  As  to  what  constitutes  the  crime  of 
murder,  see  Com.  v.  Crane,  1  Va.  Cas.  10 ; 
Resj).  V.  Bob,  4  Dall.  145 ;  and  how  dis- 
tinguished from  manslaughter,  see  Mc- 
Whirt's  Case,  3  Gratt.  594.  In  Arkansas, 
the  distinction  between  murder  and  man- 
slaughter remains  as  at  common  law. 
Bivens  v.  State,  6  Eng.  455. 


HOMICIDE. 


205 


Murder. 


Indictment. 


(b)  Indictment. 

111.  Venue.  At  common  law,  the  prisoner 
must  be  indicted  in  the  county  where  the 
offense  was  committed.  But  in  the  case  of 
homicide,  if  the  wound  was  given  in  one 
county  and  the  death  occurred  in  another,  it 
■was  said  by  some  that  the  party  could  not  be 
indicted,  because  the  offense  was  not  com- 
plete in  either  county.  But  the  common 
opinion  was  that  he  might  be  indicted 
where  the  wound  was  given.  Riley  v.  State, 
9  Humph.  657. 

112.  In  Virginia,  where  a  person  being- 
stabbed,  died  of  his  wounds  in  another 
State,  it  was  held  that  the  perpetrator  of 
the  murder  could  not  be  tried  in  Virginia, 
but  might  be  tried  for  the  assault  in  the 
county  where  the  wound  was  given.  Com. 
V.  Linton,  2  Va.  Cas.  205. 

113.  In  Iowa,  where  a  mortal  blow  is 
struck  in  one  county,  and  death  occurs 
therefrom  in  another,  the  offender  may  be 
prosecuted  and  tried  in  the  latter.  Nash  v. 
State,  2  Greene,  280. 

114;  Averment  of  time.  An  indictment 
for  murder  must  specify  the  date  of  the 
homicide,  and  state  that  it  was  caused  by 
the  injury  inflicted  by  the  defendant.  Omit- 
ting the  word  "  did,"  in  charging  the  injury 
will  be  fatal.  Edmondson  v.  State,  41 
Texas,  496.  The  words  "  instantly  did  die," 
do  not  sufficiently  charge  time  and  place. 
Lester  v.  State,  9  Mo.  658. 

115.  The  allegation  of  time  is  material  in 
one  respect,  and  that  is,  that  the  death  must 
be  laid  to  have  occurred  within  a  year  and 
a  day  of  the  wound.  State  v.  Shepherd,  8 
Ired.  195. 

116.  An  indictment  charged  that  the 
mortal  wound  was  inflicted  the  7th  of  No- 
vember, and  that  the  deceased  languished 
until  8th  of  November,  on  which  8th  day  of 
May,  the  deceased  died.  Held,  that  the  in- 
sertion of  May  for  November  was  a  clerical 
error  which  did  not  vitiate.  Ailstuk's  Case, 
3  Graft.  650. 

117.  Wlierc,  in  case  of  murder,  the  blow 
was  given  before,  but  the  death  ensued  after 
the  passage  of  a  statute,  the  death  must  be 
made  to  relate  back  to  the  unlawful  act 
which  occasioned  it ;  and  the  day  on  which 


the  act  was  committed,  and  not  the  one 
on  which  the  result  of  the  act  was  deter- 
mined, is  the  day  on  which  the  murder  is 
properly  to  be  charged.  People  v.  Gill,  0 
Cal.  637. 

118.  Averment  of  place.  An  indictment 
for  murder  must  allege  the  place  of  the 
death.  State  v.  Cummings,  5  La.  An.  330. 
But  the  Legislatm-e  may,  by  statute,  dispense 
with  the  averment  that  the  offense  was  com- 
mitted within  the  body  of  the  county  in 
which  the  indictment  was  found,  and  require 
that  fact  to  be  shown  by  the  evidence. 
Noles  V.  State,  24  Ala.  672. 

119.  Where  a  murder  has  been  committed 
in  an  unincorporated  place,  the  venue  is 
well  laid,  if  the  place  is  described  as  being 
within  a  certain  county,  and  designated  by 
the  name  which  it  publicly  and  commonly 
bears.  The  allegation  that  the  scene  of  the 
crime  was  "  an  island  called  Smutty  Nose,  a 
place  within  the  county  of  York  aforesaid," 
was  held  sufficient.  State  v.  Wagner,  61 
Maine,  178. 

120.  Averment  of  means  employed.  The 
instrument  or  means  by  which  the  homicide 
was  committed  should  be  distinctly  set  out 
so  far  as  known.  State  v.  Williams,  36 
Texas,  352.  An  indictment  for  murder 
which  does  not  state  facts  showing  the  man- 
ner in  which  the  crime  may  have  been  per- 
petrated, is  insufficient.  White  v.  Com.  9 
Bush,  178.  But  the  indictment  need  not  set 
out  the  circumstances  which  determine  the 
degree  of  the  offense.  Davis  v.  State,  39 
Md.  355;  s.  c.  2  Green's  Crim.  Reps.  381. 

121.  An  indictment  for  murder  which  al- 
leges that  A.  B.  was  killed  "  with  a  shot 
gun,"  does  not  state  the  manner  and  cir- 
cumstances attending  the  use  of  the  gun 
with  sufficient  certainty,  and  is  bad  on  de- 
murrer. Edwards  v.  State,  27  Ark.  493; 
s.  c.  1  Green's  Crim.  Reps.  741. 

122.  Where  the  indictment  alleged  that 
the  defendant,  "  with  a  certain  stone  which 
he  held,  feloniously  did  cast  and  throw  and 
strike  the  deceased  on  the  right  side  of  the 
head,"  it  was  held  sufficient  to  show  that 
the  defendant  threw  the  stone  and  hit  the 
deceased.  White  v.  Com.  6  Binu.  179.  See 
Turns  v.  Com.  6  Mete.  324. 


2GG 


HOMICIDE. 


Murder. 


Indictment. 


123.  An  indictment  against  H.  for  incit- 
ing S.  to  murder  K.,  by  mistake  charged 
II.  with  inciting  H.  to  commit  the  murder. 
Held  fatal.     State  v.  Houston,  19  Mo.  211. 

124.  An  indictment  for  murder  is  suffi- 
cient, although  in  consequence  of  the  omis- 
sion of  the  word  "with,"  the  deed  is 
charged  to  have  been  committed  by  a 
knife,  instead  of  by  the  j^risoner.  Shay  v. 
People,  22  N.  Y.  317. 

125.  An  indictment  which  charges  an  ac- 
tual poisoning,  need  not  state  what  partic- 
ular poison  was  administered.  Carter  v. 
State,  2  Carter,  617.  Nor  allege  that  the 
substance  administered  was  a  poison.  But 
it  is  otherwise  as  to  an  indictment  for  an  at- 
tempt to  poison.  Anthony  v.  State,  29  Ala. 
27. 

126.  Where  a  homicide  is  charged  to  have 
been  caused  by  a  battery,  it  is  necessary  to 
allege  an  assault.  Lester  v.  State,  9  Mo. 
658.  An  indictment  is  sufficient  which 
charges  that  the  defendant  committed,  an 
assault  upon  the  deceased,  in  some  way  and 
manner,  and  by  some  means,  instrument  and 
weapons  to  the  jury  unknown,  and  that  the 
defendant  did  thereby  willfully  and  mali- 
ciously deprive  him  of  life.  Com.  v.  "Webster, 
5  Cush.  295. 

127.  An  indictment  for  murder  may  allege 
several  modes  of  death  inconsistent  with 
each  other.  Smith  v.  Com.  31  Gratt,  809. 
Although  a  person  indicted  for  one  species 
of  killing,  as  by  poisoning,  cannot  be  con- 
victed by  evidence  of  a  species  of  death  en- 
tirely different,  as  by  shooting,  starving,  or 
strangling,  yet  where  the  indictment  charges 
in  one  count  a  homicide  by  beating,  and  in 
another  count  by  drowning,  the  prosecution 
will  not  be  compelled  to  elect  between  the 
counts.     State  v.  Johnson,  10  La.  An.  456. 

128.  Under  a  statute  declaring  "  that 
every  person  who  shall  be  convicted  of  hav- 
ing administered,  or  of  having  caused  and 
procured  to  be  administered,"  &c.,  shall  be 
punished,  &c.,  an  indictment  is  not  bad  for 
duplicity  which  charges  that  the  prisoner 
did  administer,  and  did  cause  and  procure 
to  be  administered,  &c.  La  Beau  v.  Peojile, 
0  Parker,  371 ;   affi'd  34  N.  Y.  223. 

129.  Where  several  are  aiding  and  assist- 


ing in  the  perpetration  of  a  homicide,  it  is 
not  material  whether  it  is  correctly  stated 
which  of  them  gave  the  fatal  blow.  State 
V.  Kochell,  2  Brev.  333;  Young  v.  Com.  8 
Bush,  366;  s.  c.  1  Green's  Crim.  Reps.  710. 
An  indictment  charging  in  one  count  A.  as 
principal  and  B.  as  accessory  before  the  fact, 
and  in  another  count  B.  as  principal  and  A. 
as  accessory  before  the  fact,  charges  one  of- 
fense, and  is  not  repugnant.  People  v.  Va- 
lencia, 43  Cal.  552 ;  s.  c.  1  Green's  Crira.  Reps. 
745. 

130.  An  indictment  for  murder  was  held 
good  which  charged  the  prisoners  with  the 
offense  by  doing  acts  aiding  and  abetting 
its  perpetration  in  their  presence.  U.  S.  v. 
Douglass,  2  Blatchf.  207.  Where  several  are 
engaged  in  committing  a  murder,  all  being 
present,  but  one  only  giving  the  fatal  blew, 
the  indictment  may  charge  the  act  as  done 
by  them  all,  or  as  done  by  one  and  abetted 
by  the  others.  Anderson  v.  State,  5  Ark. 
444 ;  State  v,  Cameron,  2  Chand.  172. 

131.  In  Maine,  an  indictment  for  murder 
need  not  allege  the  "  manner  in  which,  and 
means  by  which,"  the  homicide  was  com- 
mitted. It  is  sufficient  to  charge  that  the 
prisoner,  on  a  day  and  at  a  place  mentioned, 
in  and  upon  the  body  of  A.,  did  feloniously, 
willfully,  and  of  his  malice  aforethought, 
make  an  assault,  and  him,  the  said  A.,  did 
then  and  there  feloniously  and  of  his  malice 
aforethought  kill  and  murder.  State  v. 
Verrill,  54  Maine,  408. 

132.  Name  of  deceased.  "An  infant 
child,  name  to  the  grand  jury  unknown,"  is 
a  sufficient  description  of  the  deceased,  in 
an  indictment  for  murder;  and  the  child 
may  be  described  in  different  counts  as  the 
infant  child  of  the  prisoner,  and  as  an  infant 
child  generally,  not  naming  its  father  or 
mother;  and  the  murder  may  be  charged  in 
different  counts  to  have  been  committed  by 
different  means  or  instruments.  Tempe  v. 
State,  40  Ala.  698. 

133.  An  indictment  for  murder  which  al- 
leges that  the  deceased  was  a  "  Wyaudott 
Indian,  whose  name  is  to  the  jurors  un- 
known," without  stating  that  the  deceased 
was  a  human  being,  ia  sufficient.  Reed  v. 
State,  16  Ark.  499. 


HOMICIDE. 


2G7 


Murder. 


Indictment. 


134.  An  indictment  for  murder,  after  alleg- 
ing that  A.  made  an  assault  upon  B.,and  felo- 
niously inflicted  upon  him  a  mortal  wound, 
l)y  stabbing  him  with  a  knife,  whereof  B. 
died,  concluded  thus :  "  And  so  the  jurors, 
upon  their  oaths,  do  say,  that  the  said  A., 
in  manner  and  form,  and  by  the  means  afore- 
said, feloniously,  willfully,  maliciously,  de- 
liberately, premeditatedly,  on  purpose,  and 
of  his  malice  aforethought,  did  kill  and 
murder,  contrary  to  the  form  of  the  statute, 
and  against  the  peace  and  dignity  of  the 
State."  Held  bad  in  omitting  to  name  the 
person  murdered.  State  v.  Pemberton,  30. 
Mo.  376. 

135.  Where  an  indictment  for  murder 
stated  the  surname  of  the  deceased  in  three 
diflerent  ways,  as  follows:  "Giddings," 
"  Gidings,"  and  "  Gidines,"  it  was  held  that 
they  were  to  be  regarded  as  idem  sonans. 
State  V.  Lincoln,  17  Wis.  579. 

136.  Part  of  body  wounded.  The  in- 
dictment must  state  what  part  of  the  body 
was  injured ;  and  if  it  be  the  hand  or  arm,  it 
must  be  stated  whether  it  is  the  right  or 
left.  Where  it  was  charged  that  the  prisoner 
struck  the  deceased  with  an  axe  on  the  left 
side  of  the  head  and  over  the  left  temple, 
giving  to  him  then  and  there  with  said  axe 
over  the  right  side  of  the  head,  and  over  the 
right  temple,  a  mortal  wound,  the  indict- 
ment was  held  bad.  Dias  v.  State,  7  Blackf. 
20.  But  an  indictment  for  murder  was  held 
sufficient  which  alleged  that  the  defendant 
shot  the  deceased  in  the  head,  breast,  and 
side,  giving  him  one  mortal  wound  of  which 
he  died.  Hamby  v.  State,  36  Texas,  533; 
8.  c.  1  Green's  Grim.  Reps.  650. 

137.  Where,  in  an  indictment  for  murder 
charging  that  the  wound  was  inflicted  in  the 
breast,  the  word  breast  was  misspelled,  it 
was  held  that  the  defect  Avas  fatal.  Anon. 
Ilayw.  140. 

138.  In  Indiana,  the  indictment  need  not 
aver  upon  what  part  of  the  body  of  the  de- 
ceased the  mortal  wound  was  inflicted. 
.Jones  v.  State,  35  Ind.  123;  Whelchell  v. 
State,  33  lb.  89;  Cardell  v.  State,  32  lb.  1. 
In  New  York,  an  indictment  alleging  that  a 
mortal  wound  was  inflicted  upon  the  body 
of  the  deceased  is  sufficient  without  show- 


ing upon  what  part  of  the  body  the  wound 
was  given.  By  the  word  body  in  such  con- 
nection is  to  be  understood  the  trunk,  in 
distinction  from  the  head  and  limbs.  But 
the  particular  part  of  the  body  upon  which 
the  violence  producing  the  death  was  in- 
flicted is  now  regarded  as  immaterial.  San- 
chez V.  People,  22  N.  Y.  147 ;  s.  c.  4  Parker, 
535. 

139.  Where  an  indictment  for  murder  sets 
out  the  acts  of  the  prisoner  which  hasten 
the  death  of  the  deceased,  it  need  not  aver 
the  state  or  condition  of  the  body  of  the  de- 
ceased at  the  time  of  the  assault,  or  the 
causes  merely  natural  then  existing  which 
tended  to  make  the  acts  of  the  prisoner 
more  dangerous  and  fatal.  Com.  v.  Fox,  7. 
Gray,  585. 

140.  Description  of  wound.  When  death 
is  occasioned  by  a  wound,  it  should  be  stated 
to  have  been  mortal ;  but  the  length, breadth,, 
and  depth  of  the  wound  need  not  be  alleged, 
if  it  appear  that  it  contributed  to  the  party's 
death.  And  an  indictment  which  charges 
that  the  prisoner  struck  and  gave  a  wound 
of  which  the  person  died,  need  not  allege 
that  he  died  "  by  the  stroke  or  strokes 
aforesaid;  "  nor  that  he  "  did  suffer  and  lan- 
guish, and  languishingly  did  live."  State 
v.  Conley,  39  Maine,  78;  Dias  v.  State,  7 
Blackf.  20 ;  Stone  v.  People,  3  Scam.  326 ; 
Alexander  v.  State,  3  Heisk.  475;  contra, 
State  V.  Owen,  1  Murphy,  152. 

141.  An  indictment  for  murder  which 
charges  that  the  defendant  "  did  strike  and 
thrust  "  the  deceased  "  in  and  upon  the  left 
side  of  the  belly,  and  also  in  and  upon  the 
right  shoulder,  giving  to  the  deceased  then 
and  there,  in  and  upon  the  left  side  of  the 
belly,  and  also  in  and  upon  the  right  shoulder, 
one  mortal  wound  of  the  breadth  of  three 
inches,  and  of  the  depth  of  six  inches,  of 
which  mortal  wound  he  then  and  there  in- 
stantly died,"  is  bad,  as  being  incor^istent 
and  repugnant.     State  v.  Jones,  20  Mo.  58. 

142.  Death  of  party.  An  indictment  for 
murder  must  show  that  tlie  party  died  of 
the  injury  specially  described  and  set  forth. 
Lutz  V.  Com.  29  Penn.  St.  441.  But  an  in- 
dictment was  held  sufficient  which  alleged 
that  at  a  certain  time  and  place  the  defend- 


268 


HOMICIDE. 


Murder. 


Indictment. 


ant,  "without  authority  of  law,  and  with 
malice  aforethought,  killed  A.  B.  by  shoot- 
ing him  with  a  pistol,  contrary  to  the  fomi 
of  the  statute,"  &c.,  without  averring  that 

A.  B.  then  and  there  died.  State  v.  Ander- 
son, 4  Nev.  265,  Lewis,  J.,  dissenting.  And 
an  indictment  for  murder  which  charged 
that  the  defendant  on,  &c.,  at,  &c.,  did 
feloniously,  &c.,  shoot,  kill  and  murder  one 
E.  B.,  without  specifically  alleging  that  E. 

B.  died,  was  held  good.  People  v.  San- 
ford,  43  Cal.  29 ;  s.  c.  1  Green's  Crim.  Reps. 
682. 

143.  An  indictment  for  murder  is  not 
fatally  defective  because  it  charges  that  the 
death  was  caused  by  four  distinct  assaults, 
and  does  not  allege  that  it  resulted  from  any 
one  of  them.     Com.  v.  Stafford,  12  Cush.619. 

144.  When  a  single  felonious  act  results 
in  the  death  of  two  persons,  the  offender 
may  be  indicted  for  a  single  offense  of  mur- 
der in  slaying  both,  but  not  if  the  acts  of 
killing  are  distinct,  and  the  intention  to  kill 
one  is  an  intention  formed  and  existing  dis- 
tinct from  and  independent  of  the  intention 
to  kill  the  other,  Womack  v.  State,  7  Cold. 
Tenn.  508. 

145.  The  word  "  murder  "  is  a  term  of  art, 
which  cannot  be  supplied  by  any  other  word 
in  an  indictment  for  murder.  Dias  v.  State, 
7  Blackf.  20.  But  see  Anderson  v.  State,  5 
Ark.  444. 

146.  Averment  of  intent.  In  Ohio,  as 
the  statute  makes  an  intent  to  kill  an  essen- 
tial ingredient  of  murder,  an  indictment  for 
murder  under  the  statute  must  contain  a 
direct  averment  of  such  intent  in  the  de- 
scription of  the  offense.  Fonts  v.  State,  8 
Ohio,  K  S.  98;  Kain  v.  State,  lb.  306. 
And  the  same  is  true  as  to  an  intent  to  dam- 
age or  defraud  in  an  indictment  for  forgery. 
Drake  V.  State,  19  lb.  211. 

147.  An  indictment  for  murder  must 
charge. that  the  offense  was  committed  with 
malice  aforethought,  and  it  is  not  enough  to 
allege  that  the  mortal  wound  was  inflicted 
with  malice  aforethought.  Com.  v.  Gibson, 
3  Va.  Cas.  70 ;  and  it  must  be  stated  that 
the  act  was  done  feloniously.  Fairlee  v. 
People,  U  Lee,  1.  But  see  Anderson  v. 
State,  5  Ark.  44i. 


148.  An  indictment  for  murder,  which 
charges  that  A.  committed  the  assault,  and 
that  B.  and  C.  "  feloniously  were  present 
aiding,  abetting  and  assisting  said  A.,"  is 
sufficient  without  alleging  that  B.  and  C. 
were  feloniously,  willfully  and  ot  their  malice 
aforethought  preseut  aiding,  &c.  State  v. 
Rabou,  4  Rich.  260. 

149.  In  Massachusetts,  an  indictment  for 
murder  need  not  allege  that  the  act  was 
done  willfully  and  with  malice  aforethought. 
Com.  v.  Chapman,  11  Cush.  422.  In  Wis- 
consin, an  indictment  under  the  statute  for 
murder  is  sufficient  which  charges  that  the 
act  was  committed  "  with  a  premeditated 
design  to  effect  death,"  omitting  the  words 
"with  malice  aforethought."  State  v.  Du- 
vall,  26  Wis.  413. 

150.  An  indictment  for  murder  is  suffi- 
cient without  the  words  "malice  afore- 
thought," if  it  contain  language,  which  is 
equivalent,  as  "  willfully,  maliciously,  feloni- 
ously and  premeditatedly."  People  v.  Vance, 
21  Cal.  400.  See  People  v.  Brown,  27  lb. 
500.  But  an  indictment  for  murder  charg- 
ing that  the  accused  "  purposely  and  of  pre- 
meditated malice  "  gave  the  blow,  omitting 
the  word  "  feloniously,"  is  fatally  defective. 
Edwards  v.  State,  25  Ark,  444. 

151.  An  indictment  charging  that  the  ac- 
cused willfully,  feloniously  and  maliciously 
shot  another  with  intent  to  murder  him,  is 
sufficient  without  the  words  "  with  malice 
aforethought."  State  v.  Forney,  24  La.  An. 
191.  And  the  same  is  true  of  an  indictment 
which  charges  that  the  accused  "  did  then 
and  there  feloniously  kill,  slay  and  murder." 
State  V.  Phelps,  lb.  493. 

152.  After  conviction  of  murder,  it  is  not 
a  good  ground  fur  a  motion  in  arrest  of 
judgment  that  the  indictment  omitted  to 
aver  that  the  prisoner,  in  administering 
poison  to  the  deceased,  did  it  vsdth  an  intent 
to  kill.     Com,  V.  Hersey,  2  Allen,  173. 

153.  An  indictment  for  murder  by  poison 
need  not  allege  that  the  defendant  knew 
that  the  drug  used  to  produce  death  was  a 
deadly  23oison.  Thornton  v.  Com.  24  Graft. 
657.  An  indictment  which  charges  that  the 
defendant  feloniously,  willfully  and  mali- 
ciously mingled  a  drachm  of  a  certain  deadly 


HOMICIDE. 


2()9 


Murder. 


Indictment. 


Evidence  in  General. 


poison  called  belladonna  with  the  food  of 
one  B.,  with  intent  then  and  there  thereby 
the  said  B.  feloniously,  willfully  and  of  his 
malice  aforethought  to  kill,  is  good  without 
alleging  that  the  defendant  knew  the  bella- 
donna to  be  a  deadly  poison,  or  that  the  act 
was  done  knowingly,  or  that  B.  was  about 
to  eat  the  food  which  contained  the  poison, 
or  that  he  intended  that  B.  should  eat  it. 
Com.  V.  Bearse,  108  Mass.  487. 

154.  Averment  of  premeditation.  The 
word  "  deliberately "  in  an  indictment  for 
murder,  means  that  the  homicide  was  deter- 
mined upon  after  reflection.  "  Premedita- 
tedly,"  means  planned  beforehand.  Craft  v. 
State,  3  Kansas,  450.  The  words  "with 
malice  aforethought,"  do  not  embrace  in 
substance,  the  words  "deliberate  and  pre- 
meditated."   Fonts  y.  State,  4  Greene,  500. 

155.  In  Iowa,  an  indictment  for  murder 
in  the  first  degree,  must  allege  not  only  that 
that  the  killing  was  willful  and  premed- 
itated, but  also  that  it  was  deliberate. 
State  V.  McCormick,  27  Iowa,  403 ;  State  v. 
Watkins,  lb.  415  ;  State  v.  Knouse,  29  lb. 
118.  The  allegation  that  the  assault  was 
willful,  deliberate  and  premeditated  is  not 
sufficient.     State  v.  Thompson,  31  lb.  393. 

156.  In  New  York,  an  indictment  for 
murder  in  the  common-law  form,  may 
charge  that  the  offense  was  committed  fe- 
loniously, willfully,  and  of  malice  afore- 
thought, instead  of  charging  that  it  was 
committed  from  a  premeditated  design  to 
effect  the  death  of  the  person  killed.  But 
in  order  to  convict  the  prisoner  of  a  feloni- 
ous homicide  with  malice  aforethought,  the 
evidence  must  bring  the  case  within  the 
statutory  definition  of  murder.  People  v. 
Enoch,13  Wend.  159;  Fitzgerald  v.  People, 
37  N.  Y.  413 ;  5  N.  Y.  Trans.  Appeals, 
273 ;  s.  c.  49  Barb.  122 ;  Kennedy  v.  People, 
39  N.  Y.  245 ;    6  N.  Y.  Trans.   Appeals,  19. 

157.  Where  an  indictment  for  murder  at 
common  law,  after  charging  that  the  offense 
was  committed  with  malice  aforethought, 
added  that  the  act  was  done  from  a  premed- 
itated design  to  effect  the  deatli  of  the  de- 
ceased— Held  that  the  latter  words  might 
be  rejected  as  surplusage.  People  v.  White, 
22  Wend.  107. 


158.  An  indictment  which  alleges  that 
the  prisoner  "  feloniously,  willfully  and  of 
his  malice  aforethought,  did  kill  and  mur- 
der," charges  murder  by  deliberate  and 
premeditated  killing  within  the  statute  of 
New  Hampshire  (Gen.  Stat.  ch.  242,  §  14). 
State  V.  Pike,  49  New  Hamp.  399,  Doe  and 
Smith,  JJ.,  dmenting.  Under  such  an  in- 
dictment, a  A'erdict  may  be  rendered  of 
"  guilty  of  murder  in  the  first  degree,"^ 
upon  proof  of  murder  and  robbery.  lb.; 
approved  in  State  v.  Jones,  50  lb.  369. 

159.  Unnecessary  averments.  The  omis- 
sion of  an  averment  in  an  indictment  for 
murder,  that  the  party  murdered  was  in  the 
peace  of  the  commonwealth,  is  not  a  ground 
of  exception.  Com.  v.  Murphy,  11  Cush. 
472.  Nor  is  it  necessary  that  the  indict- 
ment contain  a  certificate  signed  by  the 
foreman  of  the  grand  jury  that  it  is  "  a  true 
bill."     Com.  V.  Smyth,  lb.  473. 

160.  An  indictment  for  murder  need  not 
allege  that  the  prisoner  is  a  person  of  sound 
memory  and  discretion,  nor  that  the  act  was 
unlawful,  where  the  manner  of  killing  is  so 
described  as  to  show  that  it  is  unlawful. 
Jerry  v.  State,  1  Blackf.  395. 

181.  Form  of  an  indictment  for  murder, 
with  counts  at  common  law,  and  under  the 
statute  of  New  York;  and  form  of  writ  of 
error,  see  Lake  v.  People,  1  Parker,  495. 

162.  Plea  to  indictment.  A  plea  to  an 
indictment  for  murder  of  "  once  in  jeop- 
ardy," without  stating  how  or  in  what  man- 
ner, is  bad  on  demurrer.  Such  plea  should 
set  out  the  record  of  the  former  indictment, 
propose  to  verify  the  same,  and  allege  the 
identity  of  the  defendant.  Atkins  v.  State, 
16  Ark.  508. 

163.  Trial  of  plea.  Where  a  woman 
after  conviction  of  murder,  pleads  preg- 
nancy, the  question,  before  she  is  sentenced, 
may  be  submitted  to  a  jury  of  matrons. 
State  V.  Arden,  1  Bay,  437. 

1/ 

(c)  Evidence  in  general. 

164.  Right  of  prosecution.  On  the  trial 
of  a  capital  case,  tiie  i)rosecution  are  only 
l^ound  to  introduce  such  evidence  as  they 
think  proper.     State  v.  Stewart,  9  Ired.  342. 

165.  Person  killed.     Where  in  a  case  of 


270 


HOMICIDE. 


Murder. 


Evidence  in  General. 


homicide,  it  appears  that  the  deceased  went 
by  a  name  different  from  his  or  her  true 
name,  the  true  name  may  be  stated  in  the 
indictment,  and  if  the  true  name  is  proved 
on  the  trial,  there  is  no  variance,  al- 
though it  also  ajjpears  that  the  deceased 
went  by  another  name.  So  also,  if  the 
name  charged  in  the  indictment  is  not  the 
true  name,  yet  if  it  is  proved  that  the  de- 
ceased was  called  among  his  or  her  acquaint- 
ances by  the  name  charged,  it  is  suffi- 
cient. Walters  v.  Peo^ile,  6  Parker,  15,  per 
Welles,  J. 

166.  An  indictment  charged  the  murder 
of  H.  G.  Trobuck.  It  was  proved  that  the 
name  of  the  person  killed  was  Gilbert  Tro- 
buck. Held  that  the  variance  was  fatal. 
Timms  v.  State,  4  Cold.  Tenn.  138. 

167.  But  where,  on  the  trial  of  an  indict- 
ment charging  that  the  person  murdered 
William  R.  Morris,  it  was  proved  that  W. 
R.  Morris  was  killed  by  him,  it  was  held  that 
the  proof  was  sufficient  to  support  a  convic- 
tion. Mitchum  v.  State,  11  Ga.  615.  And 
where  the  deceased  wrote  his  name  Amsey 
Mulock,  but  was  equally  well  known  by  the 
name  of  Amasa  Mulock,  and  the  latter 
name  was  given  in  the  indictment,  it  was 
held  that  there  was  no  misnomer.  Gardiner 
V.  People,  6  Parker,  155. 

168.  It  is  error  in  the  court  on  a  trial  for 
murder  to  assume  that  the  name  of  the  de- 
ceased is  stated  correctly  in  the  indictment, 
that  being  a  question  for  the  jury.  State  v. 
Dillihunty,  18  Miss.  331 ;  State  v.  Angel,  7 
Ired.  27;  contra^  Gardiner  v.  People,  su- 
pra. 

169.  An  averment  in  an  indictment  for 
murder,  that  the  deceased  was  a  Wyandott 
Indian  is  material,  and  must  be  proved  as 
laid.  It  may  be  proved  by  reputation,  and 
the  jury  may  find  the  fact  from  the  testi- 
mony of  a  witness  that  he  heard  from  the 
band  of  Indians  to  which  the  deceased  be- 
longed, that  the  latter  was  a  Wyandott. 
Reed  v.  State,  16  Ark.  499. 

170.  Where  an  indictment  for  murder 
describes  the  deceased  as  a  free  negro,  the 
designation,  though  unnecessary,  must  be 
proved  as  alleged,  and  proof  that  he  was  a 


mulatto  will  not  be    sufficient.       Felix  v. 
State,  18  Ala.  720. 

171.  Corpus  delicti.  In  every  case  of 
homicide  the  prosecution  must  prove  the 
corjyus  delicti  beyond  a  reasonable  doubt. 
People  V.  Schryver,  42  N.  Y.  1 ;  s.  c.  46 
Barb.  625. 

172.  The  corpus  delicti  has  two  compo- 
nents— death  as  the  result,  and  the  criminal 
agency  of  another  as  the  means;  and  there 
must  be  direct  proof  of  one  or  the  other. 
People  V.  Bennett,  49  N.  Y.  137. 

173.  In  order  to  justify  a  conviction  for 
murder,  there  must  either  be  direct  proof  of 
death,  or  proof  of  violence,  or  other  act  of 
the  defendant  which  is  alleged  to  have  pro- 
duced death,  sufficient  to  account  for  the 
disappearance  of  the  body.  Ruloff  v.  Peo- 
ple, 18  N.  Y.  179 ;  reversing  s.  c,  3  Parker, 
401 ;  Smith  v.  Com.  21  Gratt.  809. 

174.  It  is  not  essential  to  a  conviction  for 
murder  that  the  body  of  the  deceased  should 
be  found.  Where,  in  a  case  of  homicide, 
the  discovery  of  the  body  is  impossible,  the 
fact  of  death  may  be  proved  by  circum- 
stances, provided  they  are  sufficient  to  estab- 
lish the  fact  beyond  a  reasonable  doubt. 
U.  S.  V.  Williams,  1  CliflF.  5;  Stocking  v. 
State,  7  Ind.  326;  State  v.  Williams,  7 
Jones,  446. 

175.  On  a  trial  for  murder,  an  extrajudi- 
cial confession  with  extrinsic  circumstantial 
evidence,  satisfying  the  minds  of  the  jury 
beyond  a  reasonable  doubt  that  the  crime 
has  been  committed,  will  warrant  a  convic- 
tion, although  the  dead  body  has  not  been 
found.  State  v.  Lamb,  28  Mo.  218;  but  not 
where  there  is  no  other  proof  of  the  corpus 
delicti  than  the  confession.  State  v.  German, 
54  Mo.  526. 

178.  In  general,  there  can  be  no  convic- 
tion of  murder  until  the  body  of  the  de- 
ceased has  been  found.  People  v.  Wilson, 
3  Parker,  199. 

177.  There  need  not  be  any  more  direct 
or  positive  proof  to  identify  the  body  of  a 
murdered  person  than  is  required  to  prove 
the  murder,  or  to  identify  the  murderer. 
Taylor  v.  State,  35  Texas,  97. 

178.  On  the  trial  of  an  indictment  for 
murder,  a  witness  who  had  found  the  dis- 


HOMICIDE. 


271 


Murder. 


Evidence  in  General. 


•colored  and  mutilated  body  of  a  person 
whom  he  had  never  before  seen,  was  permit- 
ted to  testify  that  the  face  resembled  the 
photograph  of  the  man  alleged  to  have  been 
killed.  Held  proper.  Udderzook  v.  Com. 
76  Penn.  St.  340. 

179.  Ordinarily,  the  question  of  identity 
is  one  of  fact,  and  a  witness  may  be  asked 
■whether  he  knows  a  particular  individual, 
and  if  so,  whether  he  is  the  person  indicated. 
But  where,  on  a  trial  for  murder,  it  was 
proved  that  a  body  which,  if  that  of  the  de- 
ceased, had  been  submerged  in  salt  water 
for  upward  of  five  months,  and  had  under- 
gone many  changes,  it  was  held  for  the  jury 
to  determine,  after  hearing  the  statements  of 
the  witness,  whether  the  body  was  that  of 
the  deceased.  People  v.  Wilson,  3  Parker,  199. 

180.  On  the  trial  of  an  indictment  for 
the  murder  of  W.  C,  it  was  proved  that  a 
human  skeleton,  not  quite  entire,  of  the 
male  sex,  and  Caucasian  race,  corresponding 
in  size  with  W.  C,  was  found  in  a  pond. 
The  skull  had  a  hole  on  the  lower  posterior 
part,  and  a  cut  or  gash  on  the  top,  ap- 
parently made  with  some  sharp  instrument, 
which  could  not  have  been  self-inflicted,  and 
was  sufficient  to  have  caused  death.  Held 
competent  for  the  prosecution  to  show  by 
circumstantial  evidence  that  the  skeleton 
was  that  of  W.  C.  McCulloch  v.  State,  48 
Ind.  109. 

181.  It  is  not  error  to  permit  the  district 
attorney  to  show  the  witnesses,  in  the  pres- 
ence of  the  jury,  articles  of  clothing  found 
on  the  dead  body  of  a  person  whom  it  is 
alleged  the  prisoner  murdered,  or  a  hat  and 
gun  found  near  the  dead  body,  or  a  watch  it 
was  claimed  the  deceased  wore  the  morning 
lie  disappeared,  or  to  produce  in  court  the 
skull  of  the  deceased.  Gardiner  v.  People, 
6  Parker,  155. 

182.  It  is  proper  on  a  trial  for  murder  to 
allow  a  physician  and  surgeon  to  examine 
the  skull  of  the  deceased  in  court,  with  a 
broken  gun  that  was  found  beside  the  dead 
body,  and  explain  the'  fractures  :n  the  skull 
and  the  marks  on  it  to  the  jury,  and  to  show 
how  the  gun-lock  and  sight  fitted  the  frac- 
tures in  the  skull,  and  to  give  his  opinion  as 
to  what  would  cause  the  fractures,     lb. 


133.  On  a  trial  for  murder  it  was  proved 
that,  when  the  remains  were  found,  the  head 
had  been  severed  from  the  body,  and  that  it 
was  preserved  by  a  physician  in  alcohol. 
Many  witnesses  for  the  prosecution  identi- 
fied the  head,  the  greater  portion  from  the 
features  alone,  and  others  from  peculiar 
marks  on  the  teeth.  The  prisoner  proposed 
to  prove,  by  two  physicians  and  surgeons, 
that,  on  account  of  the  natural  and  inevita- 
ble changes  through  which  a  human  body 
passes  after  death,  it  was  not  possible  for 
any  one  to  identify  the  head.  Held  that  the 
evidence  was  not  admissible.  State  v.  Vin- 
cent, 24  Iowa,  570. 

184.  Where,  on  a  trial  for  murder,  the 
defense  has  introduced  evidence  tending  to 
show 'that  the  person  alleged  to  have  been 
murdered  was  seen  alive  afterward,  it  was 
held  that  the  prosecution  could  not  prove 
that,  about  the  time  of  the  alleged  murder, 
a  person  so  strongly  resembling  the  deceased 
as  to  have  been  mistaken  for  him  by  his 
acquaintances,  was  seen  near  the  place  where 
the  murder  was  alleged  to  have  been  com- 
mitted.    Com.  V.  Webster,  5  Cush.  295. 

185.  Weapon.  Where  an  indictment  for 
murder  charges  that  the  death  was  caused 
by  a  particular  weapon,  the  evidence  need 
not  show  that  it  was  done  by  that  particular 
instrument.  It  will  be  sufficient  if  proved 
to  have  been  done  by  some  other  one,  if  the 
nature  of  the  violence,  and  the  kind  of 
death  occasioned  by  it,  be  the  same.  State 
V.  Smith,  33  Maine,  369;  Goodman  v.  State,5 
Sm.  &Marsh.510;  Short  v. State, 7  Yerg.  513. 

186.  Therefore,  under  an  indictment  for 
murder  charged  in  one  count  to  have  been 
committed  by  striking  and  cutting  the  de- 
ceased with  a  hatchet,  and  in  another  count 
by  striking  and  cutting  him  with  an  instru- 
ment to  the  jurors  uuknown,  it  was  held 
competent  for  the  prosecution  to  prove  that 
the  deceased  was  killed  with  a  pistol.  Peo- 
ple v.  Colt,  3  Hill,  432.  So,  likewise,  if  the 
indictment  charges  that  the  defendant  gave 
the  mortal  wound  witli  a  knife  or  dagger, 
and  it  is  proved  that  he  gave  the  wound 
with  a  sword,  staff,  or  bill,  it  is  sufficient. 
State  V.  Fox,  1  Dutch.  566  ;  Donnelly  v. 
State,  3  lb.  463. 


HOMICIDE. 


Murder. 


Evidence  in  General. 


187.  Where,  however,  the  indictment 
charges  the  killing  to  have  been  done  with 
a  particular  weapon,  it  is  not  competent  to 
prove  that  it  was  done  with  a  weapon  of  a 
totally  diflferent  character.  Witt  v.  State,  6 
Cold.  Tenn.  5. 

188.  Whether  any,  and  what  kind  of  in- 
strument was  used  in  effecting  an  alleged 
murder,  is  a  fact  for  the  jury  to  find,  and 
not  to  be  derived  from  the  ojiinions  of  phy- 
sicians.    Wilson  v.  People,  4  Parker,  619. 

189.  But  the  question  whether  or  not  an 
instrument  with  which  a  homicide  was  com- 
mitted was  a  deadly  weapon,  is  to  be  deter- 
mined by  the  court.  Com.  v.  Morler,  4  Barr, 
264. 

190.  Mode  of  violence.  Although  an  in- 
dictment for  murder  must  state  correctly  the 
particular  mode  of  violence  by  which  the 
death  was  produced,  yet,  if  the  death  re- 
sulted from  wounds  or  fractures,  they  need 
not  be  proved  to  have  been  infiicted  by 
means  of  the  particular  instrument,  or  on 
the  part  of  the  body  charged.  State  v.  Jen- 
kins, 14  Eich.  215. 

191.  The  first  count  of  an  indictment  for 
murder  charged  the  defendant  with  shoot- 
ing the  deceased,  and  the  second  count  with 
aiding  and  assisting  another  man  in  stabbing 
him.  Held  that  evidence  of  the  aid  and  as- 
sistance charged  in  the  second  count  was 
suflBcient  to  support  the  allegation  of  shoot- 
ing in  the  first  count.  Hudson  v.  State,  1 
Blackf.  317. 

192.  An  indictment  charged  that  the 
prisoner  made  an  assault,  and  with  a  pistol 
charged  and  loaded  with  gunpowder  and  a 
leaden  bullet,  fired  at  the  deceased,  and  then 
and  there  feloniously,  and  ©f  his  malice 
aforethought,  did  strike,  penetrate  and 
wound  the  deceased  with  the  leaden  bullet, 
causing  a  mortal  wound  of  which  he  died. 
Held  that  the  prosecutor  was  bound  to  prove 
this ;  but  that  it  did  not  matter  which  of  the 
bullets  and  which  of  the  wounds  caused  the 
death.  Real  v.  People,  55  Barb.  551 ;  42  N. 
Y.  270. 

193.  An  indictment  alleging  that  the  de- 
fendant administered  poison  is  supported 
by  evidence  tending  to  show  that  he  ob- 
tained the  poison  and  placed  it  in  or  on  the 


food  which  he  knew  was  prepared  for  the 
immediate  use  of  the  deceased.  La  Beau  v. 
People,  6  Parker,  371 ;  34  N.  Y.  223. 

194.  In  Tennessee,  an  indictment  for  an 
attempt  to  give  poison,  under  the  statute 
(Code,  §  4626),  is  sustained  by  proof  that 
the  defendant  bought  the  poison,  placed  it 
in  the  hands  of  his  minor  son,  and  advised 
and  directed  him  to  administer  it.  Collins 
V.  State,  3  Heisk.  14. 

195.  Under  an  indictment  charging  a 
homicide  by  shooting,  evidence  that  the 
death  was  caused  by  beating  on  the  head 
with  a  gun  is  inadmissible ;  and  an  acquittal 
on  a  charge  of  the  one,  will  not  bar  an  in- 
dictment for  the  other.  Guedel  v.  People, 
43  111.  226. 

196.  Where  an  indictment  for  homicide 
charged  that  it  was  committed  by  beating 
and  striking,  and  it  was  proved  that  the  de- 
ceased came  to  his  death  from  iujmies  occa- 
sioned by  falling  on  a  mound  of  earth,  the 
court  directed  an  acquittal.  People  v.  Tan- 
nan,  4  Parker,  514. 

197.  An  indictment  charged  that  the  hus- 
band "  feloniously  did  make  an  assault " 
upon  his  wife  and  "from  out  of  the  said 
dwelling-house  into  the  open  air  his  said 
wife,  violently,  feloniously  and  of  his  malice 
aforethought,  did  remove,  force,  and  there 
leave,  whereby  she  came  to  her  death."  It 
was  proved  that  after  the  wife  had  been 
beaten,  and  her  husband  had  gone  to  bed, 
she  left  the  house  of  her  own  accord,  and 
without  any  necessity.  Held^  that  the  vari- 
ance was  material.  State  v.  Presler,  3  Jones, 
421. 

198.  On  a  trial  for  murder,  a  surgeon  who 
examined  the  body  of  the  deceased,  was  per- 
mitted to  exhibit  to  the  jury  engraved  plates 
of  the  human  neck,  and  of  the  bones  of  the 
neck,  and  also  a  skeleton  of  the  human  neck, 
in  order  to  illustrate  his  testimony  in  de- 
scribing the  wounds;  also  a  diagram  to 
illustrate  the  properties  of  the  human  blood 
ascertained  by  chemical  tests  and  micro- 
scopic observations.  Held  proper.  State  v. 
Knight,  43  Maine,  11. 

199.  Time  and  place.  A  homicide  may 
be  proved  to  have  been  committed  at  any 
time  jn-evious  to  the  finding  of  the  indict- 


HOMICIDE. 


273 


Murder. 


Evidence  in  General. 


ment,  either  before  or  after  the  time  alleged. 
O'Connell  v.  State,  18  Texas.  343. 

200.  An  indictment  alleged  that  the  blow 
was  given  on  the  27th  of  December,  and 
the  deceased  then  and  there  instantly  died; 
and  it  was  proved  that  he  survived  twenty 
days.  Held  that  the  variance  was  not  ma- 
terial.    State  V.  Baker,  1  Jones,  267. 

201.  It  is  too  late  after  verdict,  to  object 
that  the  homicide  was  not  proved  to  have 
been  committed  in  the  county  alleged,  or 
that  the  year  of  the  fatal  injury  was  not 
proved  to  show  that  death  followed  within 
a  year  and  a  day.  Wagner  v.  People,  54 
Barb.  367 ;  affi'd  4  N.  Y.  Ct.  of  App.  Decis. 
509 ;  s.  c.  2  Keyes,  684. 

202.  But  in  Arkansas,  where,  after  convic- 
tion of  murder,  the  bill  of  exceptions,  which 
purported  to  contain  all  the  evidence,  did 
not  show  that  it  was  proved  that  the  offense 
was  committed  in  the  county  where  the  in- 
dictment was  found,  it  was  held  ground  for 
reversal  of  the  judgment.  Reed  v.  State, 
10  Ark.  499. 

203.  Opinions  as  to  cause  of  death.  In 
a  prosecution  for  homicide,  the  opinions  of 
medical  men  who  are  experts,  are  competent 
evidence  as  to  the  instrument  employed  by 
the  defendant,  and  the  nature  and  conse- 
quences of  the  wound.  State  v.  Morphy, 
23  Iowa,  270;  State  v.  Porter,  34  lb.  131. 

204.  On  a  trial  for  murder,  it  is  competent 
for  a  surgeon  to  swear  which  of  the  wounds, 
each  of  which  is  mortal,  in  his  opinion, 
caused  the  death.  Eggler  v.  People,  56  N. 
Y.  642. 

205.  But  where,  on  a  trial  for  murder,  a 
medical  expert  has  testified  as  to  the  form, 
nature,  and  extent  of  the  wounds  found  on 
the  body  of  the  deceased,  it  is  not  compe- 
tent for  him  to  give  his  opinion  as  to  the 
probable  position  of  the  deceased  when  the 
blows  were  inflicted,  the  jury  being  equally 
capable  of  arriving  at  a  conclusion  on  that 
subject.  Kennedy  v.  People,  6  N.  Y.  Trans. 
App.  19. 

206.  On  a  trial  for  murder  by  poisoning, 
the  opinion  of  a  witness  is  admissible  as  to 
whether  symptoms  particularly  specified, 
were  symptoms  of  arsenical  poisoning,  he 
having  testified  in  relation  to  the  same  sub- 

18 


ject,  and  the  opinion  referring  to  symptoms 
of  which  evidence  by  other  witnesses  had 
been  given.  Stephens  v.  People,  4  Parker, 
396 ;  affi'd  19  N.  Y.  549.  But  the  following 
instruction  was  held  proper:  "Counsel  for 
the  prosecution  having  read  to  the  medical 
witnesses  certain  symptoms  from  a  paper 
marked  by  the  judge,  and  inquired  their 
opinion  as  to  the  cause  of  death  in  a  case 
where  such  symptoms  existed,  if  the  jury 
believe  that  the  symptoms  of  which  the  de- 
ceased complained  in  her  lifetime,  are  not  in 
all  respects  the  symptoms  stated  in  the 
paper  read  to  the  physicians,  then  the  med- 
ical opinions  are  not  admissible  as  evidence." 
lb. 

207.  On  a  trial  for  murder  by  poisoning, 
the  following  question  propounded  by  the 
prosecution  to  a  professor  of  chemistry,  was 
held  competent:  "In  your  opinion,  can  a 
physician,  from  a  mere  post  mortem  exam- 
ination of  the  exterior  surface,  and  the  indi- 
cations of  inflammation  which  he  discovers, 
determine  with  any  degree  of  certainty,  the 
precise  period  of  time  when  such  inflamma- 
tion was  caused  ?  "  People  v.  Hartung,  4 
Parker,  319,  Wright,  J.,  dissenting. 

208.  It  is  not  error  for  the  judge  to  per- 
mit witnesses,  who  are  not  chemists,  to  tes- 
tify that  the  clothes  worn  by  the  accused  on 
the  night  of  the  murder,  and  produced  on 
the  trial,  were  marked  with  stains  appar- 
ently produced  by  blood,  when  found  in  the 
possession  of  the  prisoner  at  the  time  of  his 
arrest.     People  v.  Gonzales,  35  N.  Y.  49. 

209.  Opinion  on  question  of  insanity. 
Where  an  expert  has  heard  only  jDart  of  the 
evidence  on  which  the  defense  relies  to  es- 
tablish the  insanity  of  the  prisoner,  it  is  error 
in  the  court  to  permit  him  to  give  his  opin- 
ion on  the  prisoner's  sanity,  based  on  the 
portion  of  the  evidence  so  heard*  by  him. 
Lake  v.  People,  1  Parker,  495;  12  N.  Y.  358. 

210.  Proof  of  malice.  Whether  the  crime 
be  murder  or  manslaughter,  is  not  to  be  de. 
cided  upon  any  presumption  arising  from 
the  mere  fact  of  killing;  but  the  prosecution 
must  show  that  the  killing  was  malicious. 
U.  S.  V.  Mingo,  2  Curtis  C.  C.  1 ;  Kead  v. 
Com.  22  Graft.  924 ;  s.  c.  1  Green's  Crim. 
Reps.    207;    contra.,    U.    S.   v.   Travcrs,    2 


274 


HOMICIDE. 


Murder. 


Evidence  in  General. 


Wheeler's  Crim.  Cas.  490.  Circumstances 
may,  however,  attend  a  homicide  which,  in 
point  of  law,  stamp  it  as  malicious,  without 
other  evidence  of  malice.  U.  S.  v.  Arm- 
strong, 2  Curtis  C.  C.  446 ;  as  in  case  of 
poisoning.  Shaffner  v.  Com.  73  Penn.  St. 
60 ;  s.  c.  2  Green's  Crim.  Reps.  504. 

211.  In  Oregon,  under  the  statute,  malice 
is  not  presumed  from  the  mere  proof  of  kill- 
ing, but  must  be  established  by  the  prosecu- 
tion by  other  evidence.  Goodall  v.  State,  1 
Oregon,  333. 

212.  Where,  on  a  trial  for  murder,  the  cir- 
cumstances proved  tended  to  show  malice, 
which  the  defense  attempted  to  rebut,  it 
was  held  that  the  iDrosecution  might  show 
that  there  was  express  malice.  Bird  v. 
State,  14  Ga.  43. 

213.  It  is  not  improper  for  the  court,  on  a 
trial  for  murder,  to  charge  the  jury  that  "  if 
they  believed  from  the  evidence  that  the 
prisoner  had  malice  against  the  deceased  on 
the  morning  of  the  homicide,  and  there  was 
nothing  to  show  that  such  malice  had  been 
abandoned,  even  if  the  prisoner  accidentally 
met  the  deceased,  the  question  of  man- 
slaughter could  not  arise,  as  the  malice 
would  exclude  provocation."  State  v.  Tilly, 
3  Ired.  424. 

214.  Where  there  is  fresh  i)rovocatiou  be- 
tween the  antecedent  malice  and  the  homi- 
cide, it-.must  be  proved  that  the  killing  was 
upon  the  preconceived  malice  to  make  it 
murder;  for  if  there  be  an  old  feud  between 
A.  and  B.,  which  is  made  up,  and  upon  a 
new  and  sudden  quarrel  A.  kills  B.,  it  is  not 
murder.  Clark  v.  State,  8  Humph.  671  ; 
McCoy  v.  State,  25  Texas,  33. 

215.  Where  a  homicide  grows  out  of  a 
personal  combat,  the  question  of  cooling 
time  is  one  to  be  determined  by  the  court. 
But  if  left  to  the  jury,  and  they  decide  it 
correctly,  the  error  will  not  be  ground  for  a 
new  trial.  State  v.  Moore,  69  N.  C.  267 ; 
s.  c.  1  Green's  Crim.  Rej^s.  611. 

216.  Proof  of  premeditation.  A  homi- 
cide will  not  be  presumed  to  have  been  de- 
liberate and  premeditated,  and  done  with 
malice,  but  it  must  be  proved  that  such 
was  the  case.     Craft  v.  State,  3  Kansas,  450. 

217.  The  lying  in  wait  does  not  consti- 


tute a  deliberate  and  i)remeditated  purpose 
as  a  conclusion  of  law,  but  is  a  question  of 
fact  to  be  left  to  the  jury.  Floyd  v.  State, 
3  Heisk.  342. 

218.  Although  to  establish  premeditated 
malice  some  affirmative  evidence  should  be 
introduced  by  the  prosecution,  yet  the  evi- 
dence as  to  this  may  be  circumstantial.  State 
V.  Turner,  Wright,  20. 

219.  Where  a  mortal  wound  is  inflicted 
with  a  deadly  weapon  in  the  previous  pos- 
session of  the  prisoner,  without  any,  or  upon 
very  slight  provocation,  the  homicide  is  pri- 
ma facie,  willful,  deliberate,  and  premedi- 
tated, and  the  burden  is  on  him  to  show  ex- 
tenuating circumstances.  Hill  v.  Com.  2 
Graft.  594. 

220.  In  Tennessee,  the  fact  that  the  pris- 
oner used  a  deadly  weapon  does  not  imply 
such  premeditation  as  to  make  the  homicide 
murder  in  the  first  degree,  under  the  statute. 
Clark  V.  State,  8  Humph.  671 ;  Dame  v. 
State,  2  lb.  439. 

221.  Where,  on  a  trial  for  murder,  it  is 
proved  that  the  pui-pose  of  the  defendant 
was  to  commit  robbery,  and  in  the  execution 
of  that  purpose,  in  order  to  overcome  the 
resistance,  and  silence  the  outcries  of  his 
victim,  he  made  use  of  violence  that  caused 
death,  no  further  proof  of  premeditation,  or 
of  willful  intent  to  kill,  is  necessary.  Com. 
V.  Pemberton,  118  Mass.  36. 

222.  Where  the  indictment  charges  that 
the  homicide  was  committed  with  a  pre- 
meditated design  to  effect  the  death  of  the 
person  killed,  the  premeditated  design  or 
express  malice  must  be  proved,  notwith- 
standing it  is  also  charged  to  have  been 
committed  with  malice  aforethought.  Peo- 
ple V.  White,  24  Wend.  520. 

223.  On  a  trial  for  murder  it  appeared 
that  the  deceased  and  one  S.  were  quarrel- 
ing, and  the  prisoner  interfered ;  that  the 
latter  struck  the  deceased  a  blow  on  the 
head,  which  blow  the  deceased  returned  and 
then  retreated,  followed  by  the  prisoner; 
that  the  prisoner  secretly  opened  liis  knife, 
which  led  the  deceased  again  to  strike  at 
him,  and  again  retreat;  that  the  prisoner 
then  cut  the  deceased  in  his  face  with  the 
knife ;  that  the   deceased  continued  to  re- 


HOMICIDE. 


275 


Murder. 


Evidence  in  General. 


treat,  and  the  prisoner  was  approaching 
him,  when  K.  ran  in  between  them ;  that  the 
prisoner  struck  at  K.  with  the  knife,  who 
jumped  out  of  the  Avay,  and  the  prisoner 
then  followed  the  deceased  ;  that  one  of  his 
brothers  called  out  to  him  to  take  care,  or 
he  would  be  killed,  and  as  the  deceased 
looked  around  the  jJi'isoner  struck  the  knife 
into  his  temple  with  such  force  that,  after 
three  unavailing  efforts  to  get  it  out,  made 
by  the  prisoner,  he  fled.  Held.,  that  the 
foregoing  was  sufficient  to  warrant  the  jury 
in  concluding  that  the  prisoner,  before 
striking  the  last  blow,  had  formed  the  de- 
termination to  take  the  life  of  the  deceased. 
People  V.  Shay,  4  Parker,  344 ;  33  N.  Y.  317. 

224.  On  a  trial  for  murder,  the  prosecu- 
tion having  proved  that  the  prisoner  broke 
open  the  door  of  the  room  in  a  house  of  ill- 
fame,  in  which  the  deceased  was  staying, 
dragged  her  out  of  bed,  threw  her  upon  the 
floor  and  stabbed  her  several  times  with  a 
knife  in  difl'erent  parts  of  her  body,  offered 
to  show  that  the  prisoner,  on  the  night  be- 
fore the  morning  of  the  homicide,  at  the 
same  house,  wanted  the  deceased  to  go  out 
with  him,  which  she  refused  to  do ;  that  he 
then  struck  her,  and  bit  her  hand,  and  she 
still  refused;  that  he  then  went  out  and 
brought  in  an  oflBcer,  and  charged  her  with 
stealing  his  watch;  that  the  officer  took 
both  to  the  station-house,  where  they  were 
locked  up  all  night;  that  the  deceased  re- 
turned to  the  house,  and  went  to  bed,  and 
that  some  time  after  the  prisoner  followed 
her  to  the  house  and  committed  the  crime. 
Held,  that  the  evidence  was  proper  for  the 
purpose  of  showing  deliberation  and  malice. 
Walters  v.  People,  6  Parker,  15 ;  33  N.  Y.  147. 

225.  On  a  trial  for  murder,  it  was  proved 
that  a  .store  had  been  burglariously  entered 
in  the  night,  and  property  removed  there- 
from by  the  burglars,  when  they  were  con- 
fronted by  two  clerks,  who  wjere  awakened, 
and  that  a  fight  ensued,  in  which  one  of  the 
clerks  was  shot  by  the  prisoner.  Held,  that 
the  question  whether  or  not  the  deceased 
was  unnecessarily  engaged  in  an  attempt  to 
kill,  was  one  of  fact  for  tiie  jury.  Ruloff  v. 
People,  5  Lans.  361. 

228.  Intoxication  of  accused.    On  a  trial 


for  murder,  the  drunkenness  of  the  accused 
at  the  time  of  the  commission  of  the  act 
may  be  proved  on  the  question  of  guilty 
intent.  People  v.  Nichol,  34  Cal.  311; 
People  V.  Williams,  43  lb.  344. 

227.  The  intoxication  of  the  prisoner  when 
he  committed  the  homicide  may  be  consid- 
ered by  the  jury,  with  the  other  facts  in  the 
case,  to  enable  them  to  determine  whether 
the  killing  was  done  deliberately  and  pre- 
meditatedly.  Hall  v.  State,  11  Humph.  154 ; 
State  V.  McCants,  1  Spear,  384;  Swan  v. 
State,  4  Humph.  136;  Pirtle  v.  State,  9  H). 
663 ;  Clark  v.  State,  8  lb.  671 ;  People  v. 
Belencia,  21  Cal.  544;  People  v.  King,  27 
lb.  507.     See  ^^os^,  tit.  Intoxication  as  a 

DEFENSE. 

228.  In  Connecticut,  under  a  statute  mak- 
ing murder  in  the  first  degree  consist  of 
"willftil,  deliberate,  premeditated  killing," 
intoxication  was  held  admissible  in  evidence 
as  tending  to  prove  that  the  prisoner  was 
not  capable  of  deliberation.  State  v.  John- 
son, 40  Conn.  136 ;  s.  c.  3  Green's  dim.  Reps. 
487.  But  where  murder  in  the  second  degree 
rests  upon  implied  malice,  if  an  intoxicated 
person  takes  the  life  of  another  without 
provocation  or  justification,  the  jury  may 
find  malice,  although  no  malice  be  proved. 
State  V.  Johnson,  41  lb.  584. 

229.  Res  gestae.  Everything  which  hap- 
pened in  the  immediate  presence  and  hearing 
of  the  prisoner  at  the  time  of  the  homicide 
is  admissible,  as  tending  to  show  his  motive 
for  the  act.  McKee  v.  People,  36  X.  Y. 
113. 

.230.  On  a  trial  for  murder,  it  is  proper  to 
show  the  acts  of  the  prisoner  during  the  day 
of  the  homicide.  Campbell  v.  State,  33 
Ala.  44. 

231.  Any  fact  tending  to  prove  the  motive 
of  the  prisoner  in  killing  the  deceased,  or 
the  object  of  the  deceased  in  going  to  the 
prisoner's  house,  or  the  prisoner's  knowledge 
at  the  time  of  the  killing  that  the  accused 
and  his  companions  did  not  intend  to  commit 
any  felony  or  to  do  him  any  harm,  is  relevant. 
Noles  V.  State,  36  Ala.  31. 

232.  Where  two  persons  are  murdered  at 
the  same  time  and  place,  by  the  same  person, 
evidence  as  to  what  occurred  at  the  murder 


27G 


HOMICIDE. 


Murder. 


Evidence  in  General. 


Presumptions. 


of  one  is  admissible  on  the  trial  for  the 
murder  of  the  other.  Brown  v.  Com.  76 
Penn.  St.  310. 

233.  On  the  trial  of  an  indictment  for  the 
murder  of  A.,  there  was  evidence  tending  to 
show  that  B.  and  C.  were  killed  at  the  same 
time  by  the  same  weapon.  Held  that  the 
prosecution  were  entitled  to  lay  before  the 
jury  the  whole  transaction  of  which  the 
murder  of  A.  was  a  part,  and  that  for  this 
purpose,  the  testimony  of  a  physician  as  to 
the  autopsy  of  C.  was  competent.  Com.  v. 
Sturtivant,  117  Mass.  122. 

234.  On  a  trial  for  murder,  it  appeared 
that  A.  and  B.  being  together,  the  prisoners 
attacked  A.  who  after  firing  his  pistol  at  one 
of  them  fled ;  that  they  followed  him  a  short 
distance,  and  immediately  returned  to  where 
B.  was,  whom  it  was  charged  they  killed. 
Held  competent  for  the  prosecution  to  show 
the  attack  upon  A.  as  a  part  of  the  res  gestm. 
Glory  V.  State,  8  Eng.  236. 

235.  On  a  trial  for  murder,  evidence  was 
offered  that  the  prisoner,  on  the  same  day  the 
deceased  was  killed,  and  shortly  before  the 
killing,  shot  a  third  person.  Held  that  the 
evidence  was  competent,  though  it  sought 
to  prove  a  distinct  felony ;  the  killing  of  the 
deceased  appearing  to  be  connected  as  parts 
of  an  entire  transaction.  Heath's  Case,  1 
Rob.  735. 

236.  On  a  trial  for  murder  committed  dur- 
ing a  burglary,  it  is  competent  for  the  prose- 
cution to  prove  a  conspiracy  between  the 
prisoner  and  the  other  persons  alleged  to 
have  been  engaged  in  the  burglary ;  also  to 
identify  his  deceased  confederates  by  means 
of  a  photograph  and  stereoscope.  Rulofi" 
V.  People,  5  Lans.  261. 

237.  Extenuating  circumstances.  On  a 
trial  for  murder,  it  is  competent  for  the  de- 
fendant to  prove  that  the  place  where  the 
homicide  occurred  was  a  house  of  ill-fame, 
in  order  to  show  the  intent  and  object  of  his 
going  there.  Villareal  v.  State,  26  Texas, 
107. 

238.  On  a  trial  for  aiding  and  abetting  in  the 
murder  of  one  of  a  mob  who  were  endeavoring 
in  the  night  to  force  an  entrance  into  the 
house  of  U.,  which  the  prisoner  was  assist- 
ing U.  to  prevent,  it  was  held   competent 


for  the  prisoner  to  prove,  on  the  question  of 
intent,  that  he  had  heard  that  persons  had 
been  at  the  house  shortly  previous  to  the 
homicide,  made  a  disturbance,  taken  U.  out 
in  the  night,  and  beaten  him  severely. 
Temple  v.  People,  4  Lans.  119. 

239.  On  the  trial  of  an  indictment  for 
malicious  shooting,  it  is  competent  for  the 
defendant  to  prove  as  tending  to  show  the 
motives  and  acts  of  the  parties,  that  a  son 
of  the  person  wounded,  who  was  in  the  store 
when  his  father  and  the  defendant  entered 
it,  immediately  ran  up  stairs  and  returned 
about  the  time  of  the  shooting,  with  a 
pistol,  which  he  aimed  and  snapped  at  the 
defendant ;  and  that  the  son  had  loaded  his 
pistol  a  few  days  before,  and  had  then  made 
a  threat  to  shoot  the  defendant,  of  which  the 
latter  was  notified.  Rapp  v.  Com.  14  B. 
Mon.  614. 

240.  On  a  trial  for  murder,  the  prisoner 
offered  to  prove  that  a  few  minutes  before 
he  made  the  attack  upon  the  deceased,  he 
went  to  the  house  where  he  lived,  and  found 
his  sister  crying,  and  asking  the  cause,  was 
told  by  her  that  the  deceased  had  just  been 
there,  and  called  her  mother  and  herself 
prostitutes,  whereupon  the  prisoner  went 
directly  into  the  lot  where  the  deceased  was, 
and  asked  him  why  he  had  so  done,  and 
immediately  struck  him  with  his  fist.  Held 
that  the  evidence  was  proper  on  the  question 
whether  the  prisoner  intended  the  death  of 
the  deceased,  and  that  its  exclusion  was 
ground  for  a  new  trial.  People  v.  Lewis,  3 
N.  Y.  Ct.  of  Appeals  Decis.  535. 

241.  On  a  trial  for  murder,  evidence  that 
the  prisoner's  wife  had  been  in  the  habit  of 
adultery  with  the  deceased  is  not  admissible. 
State  V.  John,  8  Ired.  330. 

242.  Evidence  that  the  prisoner  was  in 
possession  of  land,  and  that  the  deceased 
was  coming  to  commit  a  trespass  upon  it,  is 
not  admissible  in  justification  or  excuse,  but 
may  be  received  to  show  the  state  of  feeling 
of  the  parties  toward  each  other  at  the  time 
of  the  occurrence.  State  v.  Zellers,  2  Halst. 
220. 

{d)  Presumptions. 

243.  From  homicide.     It  is  erroneous  to 


HOMICIDE. 


277 


Murder. 


Presumptions. 


■charge  the  jury,  on  a  trial  for  murder,  that 
the  homicide  being  proved,  the  law  implies 
that  the  killing  was  willful,  deliberate,  and 
premeditated.  People  v.  Moody,  45  Cal. 
389 ;  8.  c.  2  Green's  Crim.  Reps.  420. 

244.  But  in^  a  case  of  homicide,  where 
there  was  no  apparent  well  founded  danger 
of  great  bodily  harm,  or  such  provocation 
as  was  calculated  to  excite  irresistible  pas- 
sion, the  law  implies  malice.  Com.  v.  Drew, 
4  Mass.  391 ;  Peri  v.  People,  65  111.  17. 
When  a  person  voluntarily  does  an  act  which 
has  a  direct  tendency  to  destroy  life,  and 
death  ensues,  the  presumption  is  that  he  in- 
tended to  kill.  Com.  V.  York,  9  Mete.  93 ; 
Riley  v.  State,  9  Humph.  657 :  State  v.  Tur- 
ner, "Wright,  20  ;  Com.  v.  Webster,  5  Cush. 
295 ;  Hill  v.  Com.  2  Gratt.  594 ;  Oliver  v. 
State,  17  Ala.  587.  Where  deliberate  malice 
is  once  established,  its  continuance  down  to 
the  perpetration  of  the  homicide  will  be 
presumed,  unless  rebutted.  State  v.  Johnson, 
1  Ired.  354. 

245.  And  the  law  implies  malice  where 
the  act  causing  the  death  of  another  is  at- 
tended with  such  circumstances  as  are  the 
usual  concomitants  of  a  wicked,  depraved, 
and  malignant  spirit.  State  v.  Smith,  2 
Strobh.  77;  Ann  v.  State,  11  Humph.  150. 

See  2)ost,  tit.  Burden  of  proof. 

246.  From  possession  or  use  of  deadly 
weapon.  Where  a  weapon  with  which  a 
murder  is  committed  is  not  known,  it  is 
competent,  for  the  public  prosecutor  to  in- 
troduce evidence  to  raise  a  presumption 
that  the  wound  was  caused  by  a  pistol  ball, 
and  to  prove  for  that  purpose  that  the  pris- 
oner had  pistols  in  his  possession,  and  that 
a  ball  proi^elled  by  the  explosion  of  a  per- 
cussion cap,  would  be  likely  to  cause  such  a 
wound ;  or  to  prove  that  the  prisoner  had 
such  pistols,  in  order  to  show,  in  connection 
with  other  evidence,  that  the  prisoner  had 
probaVily  taken  the  ramrod  from  the  pistol 
and  driven  it  into  the  head  of  the  deceased. 
Colt  V.  People,  1  Parker,  611. 

247.  Where  a  dangerous  weapon  is  used 
against  an  unarmed  adversary,  even  upon 
reasonable  provocation,  the  killing  will  be 
murder  and  not  manslaughter,  the  law  im- 
plying that  the  intent  was  to  kill,  and  not 


to  fight  on  equal  footing.     Holland  v.  State, 
12  Fla.  117. 

248.  It  is  erroneous  to  charge  that  the  use 
of  a  deadly  weapon  not  in  necessary  self- 
defense,  whereby  death  ensues,  will  consti- 
tute murder.  Donnellan  v.  Com.  7  Bush, 
676.  Or  that,  if  homicide  be  committed  by 
a  deadly  weapon  in  the  previous  possession 
of  the  accused,  the  law  implies  malice. 
Smith  V.  Com.  1  Duvall,  234 ;  contra,  State  v. 
Lipsey,  3  Dev.  485.  And  the  error  is  not 
cured  by  giving  a  correct  instruction  at  the 
request  of  the  defendant.  Clem  v.  State,  31 
Ind.  480 ;  Bradley  v.  State,  lb.  492. 

249.  Where  the  killing  is  with  a  dangerous 
weapon,  calculated  to  produce  and  actually 
producing  death,  in  the  absence  of  proof 
that  it  was  accidental  or  upon  provocation, 
the  i^resuraption  is  that  the  act  was  volun- 
tary and  with  malice  aforethought.  State 
V.  Gillick,  7  Iowa,  287. 

250.  The  following  instruction  was  held 
proper :  "  That  if  the  homicide  was  commit- 
ted in  a  sudden  heat  by  the  use  of  a  deadly 
weapon,  no  jn'ovocation  given  by  mere  words 
would  reduce  the  killing  to  manslaughter; 
that  the  question  was  not  whether  there  was 
anger  merely,  but  whether  there  was  legal 
provocation  to  such  anger;  that  the  use  of 
a  dangerous  weapon  under  a  provocation  by 
words  only,  or  under  no  provocation,  was 
always  evidence  of  malice  aforethought;  that 
to  constitute  malice  aforethought  it  was  only 
necessary  that  there  should  be  formed  a  de- 
sign to  kill,  and  that  such  design  might  be 
conceived  at  the  moment  the  fatal  stroke  was 
given,  as  well  as  a  long  time  before.  Beau- 
champ  V.  State,  6  Blackf.  299. 

251.  lu  the  absence  of  proof  to  the  con- 
trary, the  law  presumes  an  intent  to  kill 
from  the  use  of  a  deadly  weapon.  Kilpat- 
rick  V.  Com.  31  Penn.  St.  198. 

252.  In  Arkansas,  the  fact  of  killing  with 
a  deadly  weapon  has  been  held  2J7'i))ia  facie 
evidence  that  the  design  to  kill  was  formed 
at  the  time  of  committing  the  act.  Bevins 
V.  State,  6  Eng.  455. 

253.  When  the  proof  shows  that  the  kill- 
ing was  done  intentionally  by  the  defendant 
with  a  deadly  weapon,  the  law  raises  a  pre- 
sumption from  the  use  of  such  a  weapon  that 


+ 


278 


HOMICIDE. 


Murder. 


Presumptions. 


the  party  using  it  intended  to  kill,  and  that 
the  killing  was  malicious;  and  unless  the 
circumstances  show  that  the  killing  was  jus- 
tifiable or  excusable,  the  burden  of  proof  de- 
volves on  the  defendant  to  show  a  justifica- 
tion or  excuse.  State  v.  Bertrand,  3  Oregon, 
Gl.  The  defendant  is  only  required  to  show 
this  by  a  preponderance  of  evidence.  State 
V.  Conolly,  lb.  69. 

254.  The  law  infers  an  intent  to  kill  from 
the  use  of  a  deadly  weapon,  notwithstanding 
it  may  be  lawful  to  carry  such  weapon.  Head 
V.  State,  44  Miss.  731.  But  in  Mississippi,  un- 
der the  law  i^ennitting  a  citizen  to  carry  a 
deadly  weapon,  although  he  may  be  the  ag- 
gressor in  a  diflSculty,  the  fact  that  he  was 
armed  with  a  deadly  weapon  is  no  j^roof  of 
his  criminality,  unless  he  provided  himself 
with  the  weapon  with  a  view  to  using  it  if 
necessary  in  overcoming  his  adversary.  Cot- 
ton V.  State,  31  Miss.  504. 

255.  On  the  trial  of  an  indictment  for 
murder  committed  with  a  deadly  weapon, 
the  prisoner  may  show  that  he  came  by  the 
weapon  accidentally  and  for  an  innocent 
purpose.     Aaron  v.  State,  31  Ga.  167. 

256.  When  a  mother  intentionally  kills 
her  infant  child,  who  is  incapable  of  any  re- 
sistance, by  beating  it  over  the  head  with  a 
deadly  weapon,  the  law  implies  malice,  al- 
though it  would  be  otherwise  if  the  child 
were  capable  of  taking  the  mother's  life,  and 
was  attempting  to  take  it  with  means  ade- 
quate to  the  end,  and  she  killed  it  to  pre- 
serve her  own  life.  Tempe  v.  State,  40  Ala. 
350. 

257.  On  a  trial  for  murder,  the  defense 
offei'ed  to  show  that  some  twenty  or  thirty 
minutes  before  the  difficulty,  the  deceased 
had  fired  off,  and  reloaded,  two  pistols,  and 
put  them  in  his  pocket  at  his  own  house, 
which  was  two  or  three  hundred  yards  dis- 
tant, and  then  started  immediately  for  the 
place  of  the  difficulty,  and  that  the  pistols 
were  found  at  his  side  on  the  ground  where 
he  fell  after  being  shot  by  the  prisoner.  Held 
that  these  facts  were  competent  evidence, 
without  proof  that  the  prisoner  had  knowl- 
edge of  them.  Reynolds  v.  State,  1  Kelly, 
223. 

258.  Articles  found  in  prisoner's  pos- 


session. Articles  found  in  the  prisoner's 
pockets  when  he  was  searched  soon  after 
the  murder,  which  are  claimed  to  have  been 
shortly  before  in  the  possession  of  the  de- 
ceased, may  be  put  in  evidence ;  also  articles 
belonging  to  the  prisoner  and  in  his  posses- 
sion just  before  the  murder,  w'hich  were 
found  at  the  place  where  the  crime  was  com- 
mitted.    State  V.  Wagner,  61  Maine,  178. 

259.  On  a  trial  for  murder,  the  fact  that 
the  prisoner,  whilst  passing  from  the  jail  on 
a  former  trial  for  the  same  offense,  was  found 
in  possession  of  a  slung  shot,  is  competent 
evidence  for  the  consideration  of  the  jury  on 
the  question  whether  he  contemplated  an  es- 
cape.    State  V.  Houser,  28  Mo.  233. 

260.  On  a  trial  for  murder,  evidence  that 
a  writing  found  near  the  body  of  the  de- 
ceased was  given  to  the  prisoner's  son  for 
the  use  of  his  father,  is  sufficient  to  render 
the  paper  admissible  in  evidence,  with  in- 
struction to  the  jury  to  disregard  it  unless 
satisfied  that  it  came  from  the  prisoner's  pos- 
session.    State  v.  Arthur,  2  Dev.  217. 

261.  Clothes  which  have  been  identified 
as  those  worn  by  the  accused  at  the  time  a 
murder  w'as  committed,  may  be  submitted 
to  the  jury  for  inspection.  People  v.  Gon- 
zales, 35  N.  y.  49. 

262.  On  a  trial  for  murder,  a  witness  who 
was  not  an  expert  was  permitted,  against  the 
objection  of  the  prisoner,  to  testify  that  cer- 
tain hairs  which  were  found  adhering  to  the 
club  with  w^hich  it  was  claimed  the  murder 
was  committed,  appeared  to  his  naked  eye  to 
be  human  hairs,  and  another  witness  to  tes- 
tify to  his  impression  that  they  resembled 
human  hairs.  Held  j^roper,  and  that  testi- 
mony ofiered  in  behalf  of  the  prisoner  in  re- 
spect to  hairs  seen  on  wood  piles  in  the  yard 
where  the  homicide  occurred,  five  months 
subsequent  thereto,  was  rightly  rejected. 
Com.  V.  Dorsey,  103  Mass.  412. 

263.  Where  on  a  trial  for  murder  by  poison, 
alleged  to  have  been  administered  to  the  de- 
ceased by  the  accused  in  a  bowl,  it  was  held 
to  be  a  question  for  the  jury  as  to  whether 
or  not  the  bowl  was  identified,  and  that 
evidence  given  by  a  plijisician  as  to  the  con- 
dition  and  contents  of  the  bowl,  and  his 


HOMICIDE. 


279 


Murder. 


Presumptions. 


analysis  of  its  contents,  was  proper.    People 
V.  William*,  3  Parker,  84. 

264.  Feebleness  of  person  killed.  Where 
on  a  trial  for  murder,  the  prisoner  sets  up 
self-defense,  it  is  competent  for  the  prose- 
cution to  show  tliat  the  prisoner  was  a  large 
and  the  deceased  a  small  man.  Hinch  v. 
State,  25  Ga.  G99. 

265.  Where  on  a  trial  for  murder,  it  is 
proved  that  the  prisoner  at  the  time  he  com- 
mitted the  assault  on  the  deceased,  knew  or 
had  reasonable  cause  to  believe  that  she  was 
suffering  from  disease,  and  was  in  conse- 
quence so  feeble  that  his  attack  would  en- 
danger her  life,  or  inflict  on  her  great  bodily 
harm,  or  hasten  her  death,  it  will  justify  the 
jury  in  finding  implied  malice  and  in  con- 
victing of  murder.  Com.  v.  Fox,  7  Gray, 
585. 

236.  Foot-prints.  Evidence  that  shoes 
taken  from  the  feet  of  the  horse  wliich  the 
prisoner  rode  on  the  morning  of  the  murder 
seemed  to  fit  the  tracks  found  near  the 
body  of  the  deceased,  is  admissible.  Camp- 
bell V.  State,  23  Ala.  44. 

267.  Spots  of  blood.  On  a  trial  for  mur- 
der, it  is  not  error  to  refuse  to  instruct  the 
jury  that  it  is  the  duty  of  the  prosecution  to 
prove  by  scientific  analysis,  that  the  spots 
found  on  the  clothes  and  person  of  the 
prisoner  were  in  fact  spots  of  blood.  Peo- 
ple V.  Bell,  49  Cal.  485. 

268.  Anonymous  letter.  On  the  trial  of 
the  defendant  for  the  murder  of  his  wife, 
the  alleged  motive  being  a  desire  to  marry 
S.  B. ,  an  anonymous  letter  proved  to  be  the 
prisoner's  handwriting,  addressed  to  a  per- 
son to  whom  S.  B.  was  about  to  be  married, 
and  received  by  that  person  at  the  time  of 
its  date,  which  was  eleven  months  after  the 
murder — Held  proper  for  the  consideration 
of  the  jury.  Stephens  v.  People,  19  N.  Y. 
549;  affi'g  s.  c.  4  Parker,  396. 

269.  Ill  feeling  between  the  parties. 
On  a  trial  for  murder,  evidence  that  the 
prisoner  was  in  possession  of  land,  and  that 
the  deceased  was  about  to  commit  a  trespass 
upon  it,  is  admissible  to  show  the  state  of 
feeling  of  the  parties  toward  each  other  at 
the  time  of  the  homicide ;  and  for  the  same 
purpose,   it    may   be  proved  that  lawsuits 


were  pending  between  them.     State  v.  Zel- 
lers,  2  Halst.  220. 

270.  On  the  trial  of  a  husband  for  the 
murder  of  his  wife,  it  is  competent  for  the 
prosecution  to  show  a  long  course  of  ill 
treatment  by  the  husband  toward  the  wife. 
State  V.  Rash,  12  Ired.  332. 

271.  On  a  trial  for  the  murder  of  his  wife 
by  the  accused  by  poisoning,  it  is  competent 
to  prove,  to  show  motive,  that  some  time 
previous  to  the  alleged  murder  the  wife  made 
a  complaint  against  her  husband  for  aban- 
donment, and  that  he  gave  a  recognizance 
with  surety,  on  which  he  had  been  compelled 
to  pay  $2  a  week  for  her  support.  People 
V.  Williams,  3  Parker,  84. 

272.  On  a  trial  for  murder,  ill  feeling 
between  the  prisoner's  wife  and  the  wife  of 
the  deceased  cannot  be  proved,  unless  the 
evidence  shows  that  the  prisoner  knew  of 
such  ill  feeling.  Hackett  v.  People,  54  Barb. 
370. 

273.  If  A.  and  B.  entertain  hostile  feelings 
toward  each  other,  and  A.  goes  away  and 
remains  absent  six  months,  and  then  returns, 
and  is  found  shortly  after  murdered,  and  the 
circumstances  point  to  B.  as  the  murderer, 
the  relations  of  the  parties  when  last  together 
are  competent  evidence.  Dillon  v.  People, 
8  Mich.  357. 

274.  On  the  trial  of  a  man  for  the  murder 
of  his  wife,  which  took  place  on  the  8th  of 
July,  evidence  was  held  admissible  to  prove 
that  the  parties  quarreled  the  previous  fall, 
as  tending  to  show  an  alienation  of  aflection, 
from  which  the  jui-y  might  infer  that  the 
same  state  of  feeling  continued  until  the 
commission  of  the  homicide.  Ileld^  also, 
that  it  was  proper  to  prove  that  several 
months  before  the  fatal  event,  the  deceased 
had  made  a  complaint  against  her  husband 
for  an  assault  and  battery,  upon  which  he 
was  arrested  and  held  to  bail ;  also,  that  the 
deceased  had  deposited  money  in  a  savings 
bank  to  her  own  credit,  that  a  bank  book 
was  issued  in  her  name  and  left  with  her 
sister,  and  that  the  defendant  complained 
that  he  had  no  money,  that  what  money 
there  was  his  wife  had  taken  and  put  in  a 
bank,  and  that  she  had  the  bank  book. 
People  V.  McCann,  3  Parker,  272. 


280 


HOMICIDE. 


Murder. 


Presumptions. 


275.  Where  an  antecedent  grudge  lias  been 
proved,  and  there  is  no  satisfactory  evidence 
to  show  tliat  the  wicked  purpose  has  been 
abandoned,  it  must  be  clearly  shown  that 
the  provocation  was  a  grievous  one  in  order 
to  warrant  the  jury  in  finding  that  the  blow 
■was  struck  on  the  recent  provocation  and 
not  on  the  old  grudge.  Holland  v.  State, 
13  Fla.  117. 

276.  Slight  evidence  is  admissible  to  show 
motive.  On  a  trial  for  murder,  it  may  be 
shown  that  a  relative  of  the  accused  had,  on 
two  successive  days,  difficulties  with  de- 
ceased, which  originated  about  the  accused  ; 
that  in  the  first  of  said  difficulties  accused 
was  present  and  sided  with  his  relative,  and 
in  the  second  his  relative  and  friend  was 
killed  by  deceased.  Kelsoe  v.  State,  47  Ala. 
573. 

277.  On  a  tiial  for  murder,  evidence  that 
the  prisoner,  a  short  time  before  the  homi- 
cide, had  set  fire  to  the  house  of  deceased, 
in  the  night  time,  vpas  held  inadmissible. 
State  V.  Merrill,  3  Dev.  269. 

278.  Where  one  of  several  jointly  indicted 
for  murder  is  tried  separately,  it  may  be 
shown  that  at  and  before  the  alleged  mur- 
der, an  unfriendly  state  of  feeling  existed 
between  the  deceased  and  the  accused  not 
on  trial.     McMillan  v.  State,  13  Mo.  30. 

279.  Threat.  Where  there  is  a  deliberate 
threat,  and  the  person  against  whom  the 
threat  was  made  be  afterward  killed  with  a 
deadly  weapon  by  the  person  making  the 
threat,  no  mere  provocation  at  the  time  of 
committing  the  act  will  relieve  it  of  the 
character  of  a  malicious  killing,  but  it  will 
be  presumed  to  have  been  in  consequence  of 
the  previous  threat  or  grudge.  Riggs  v. 
State,  30  Miss.  635. 

280.  Alienation  of  affection.  On  the  trial 
of  the  husband  for  the  murder  of  his  wife, 
evidence  of  conversations  between  the  pris- 
oner and  his  wife,  and  between  the  prisoner 
and  his  brother-in-law,  tending  to  show  an 
alienation  of  aflection  on  his  part,  in  regard 
to  his  wife,  is  admissible  on  the  question  of 
motive.  So,  likewise,  the  will  of  the  wife's 
father  would  be  competent  evidence  to  show 
that  the  prisoner  was  disappointed  in  his 
pecuniary   expectations.       People    v.    Hen- 


drickson,  1  Parker,  406;    s.  c.  10  N.  Y.  13, 
Gardiner,  Ch.  J.,  and  Selden,  J.,  dissenting. 

281.  On  the  trial  of  a  husband  for  the 
murder  of  his  wife,  evidence  that  during  the 
year  previous  to  the  homicide,  the  prisoner 
applied  to  a  woman  for  permission  to  visit 
her  daughter,  and  also  that  the  wife  for  some 
time  before  her  death  was  compelled  by  the 
prisoner  to  sleep  alone  in  his  kitchen,  which 
was  very  open  and  apart  from  the  dwelling- 
house,  was  held  admissible  to  show  malice 
and  motive.     Oliver  v.  State,  17  Ala.  587. 

282.  On  the  trial  of  an  indictment  for  the 
murder  of  a  female  with  whom  the  prisoner 
was  living  as  his  wife,  it  was  held  that,  for 
the  purpose  of  repelling  the  presumption  of 
conjugal  affection,  it  was  competent  for  the 
prosecution  to  prove  that  the  prisoner's  law- 
ful wife  was  still  living;  that  he  had  mar- 
ried the  deceased  under  a  fictitious  name ; 
that  he  had  deceived  her  by  false  letters  and 
papers,  and  that  he  had  married  again  five 
weeks  subsequent  to  the  death  of  the  de- 
ceased.    State  V.  Green,  35  Conn.  203. 

283.  Adulterous  intercourse.  On  the 
trial  of  the  husband  for  the  murder  of  his 
wife,  ])roof  of  a  criminal  intimacy  between 
him  and  another  woman,  at  the  time  of  the 
homicide,  is  admissible  against  him.  Hall 
V.  State,  40  Ala.  698. 

284.  Where  on  the  trial  of  a  husband  for 
the  murder  of  his  wife,  the  evidence  was 
wholly  circumstantial,  it  was  held  that 
testimony  to  show  that  for  some  months 
before,  and  down  to  the  time  of  the  homi- 
cide, adulterous  intercourse  had  existed  be- 
tween the  prisoner  and  a  certain  woman, 
was  admissible  to  repel  the  presumption  of 
innocence  arising  from  the  conjugal  rela- 
tion.    State  V.  Watkins,  9  Conn.  47. 

285.  W'here  facts  and  circumstanced 
amount  to  proof  of  another  crime  than  that 
charged,  and  there  is  ground  to  believe  that 
the  crime  charged  grew  out  of  it,  or  was  in 
any  way  caused  by  it,  such  facts  and  cir- 
cumstances may  be  proved  to  show  the  quo 
animo  of  the  accused.  Therefore,  on  a  trial 
for  murder,  continuous  illicit  intercourse  be- 
tween the  wife  of  the  deceased  and  the 
prisoner,   down   to   the   homicide,   may  be 


HOMICIDE. 


281 


Murder. 


Presumptions. 


proved  to  show  motive.     Com.   v.  Ferrigan, 
44  Perm.  St.  386. 

286.  On  the  trial  of  a  husband  for  the 
murder  of  his  wife  by  poison,  it  was  proved 
that  there  existed  a  criminal  intimacy  be- 
tween the  defendant  and  the  wife  of  another 
man,  and  that  there  was  an  insurance  on  the 
life  of  this  man,  the  proceeds  of  which,  on 
his  death,  the  defendant  tried  to  get.  Held 
that  evidence  that  this  man  died  with  the 
same  symptoms  as  the  defendant's  wife,  and 
that  in  his  last  illness,  he  was  attended  by 
the  defendant,  was  not  admissible.  Schaf- 
ner  v.  Com.  73  Penn.  St.  60. 

287.  The  prisoner  and  Mrs.  L.  were  in- 
dicted for  the  murder  of  the  husband  of 
Mrs.  L.  On  the  separate  trial  of  the  prisoner, 
evidence  was  offered  by  the  prosecution 
having  a  tendency  to  show  an  incestuous 
connection  between  the  prisoner  and  his  sis- 
ter, Mrs.  L.  No  evidence  was  offered  tend- 
ing to  connect  this  with  the  homicide,  other 
than  as  might  be  inferred  from  the  fact  of 
the  homicide  occurring  subsequent  to  the 
alleged  incest ;  and  no  other  evidence  was 
offered  on  the  subject,  except  that  it  ap- 
peared that  the  deceased  saw  at  least  one 
of  the  acts  of  sleeping  together  by  the  par- 
ties, and  that  he  showed  no  anger  and  made 
no  objection.  Held  that  the  evidence  was 
admissible  on  the  question  of  motive.  Peo- 
ple V.  Stout,  4  Parker,  71. 

288.  On  a  trial  for  murder,  it  was  held 
competent  on  the  question  of  motive  to 
prove  that  the  prisoner  and  the  deceased 
had  visited  the  same  woman ;  that  immedi- 
ately after  the  homicide  the  prisoner  re- 
ferred to  the  fact  that  he  warned  the  de- 
ceased to  let  her  alone ;  that  she  would  be  a 
curse  to  any  one,  and  now  his  words  had 
come  to  pass.  McCue  v.  Com.  78  Penn.  St. 
185. 

289.  Outcries  of  person  killed.  The 
outcries  of  a  person  deceased,  during  the 
perpetration  of  the  assault  which  results  in 
death,  or  upon  tlie  approach  of  the  assail- 
ant, are  competent  evidence  on  the  trial  of  a 
party  charged  with  the  murder  of  such  per- 
son upon  the  question  of  the  identity  of  the 
accused.  The  outcries  of  another  person 
who  was  murdered  by  the  same  party  a  few 


minutes  previous,  during  the  perpetration  of 
the  same  burglary,  but  on  another  part  of 
the  premises,  are  also  admissible  for  the 
same  purpose.  State  v.  Wagner,  61  Maine, 
178. 

290.  Conduct  and  situation  of  defendant. 
Where  upon  a  trial  for  murder,  the  evi- 
dence is  wlioUy  circumstantial,  the  conduct 
and  situation  of  the  accused  as  affording  him 
opportunities  of  knowing  at  what  time  the 
deceased  left  a  certain  place  on  the  morning 
of  the  murder  where  she  was  last  seen  alive ; 
whether  or  not  it  was  unusual  for  him  to  be 
in  that  place  at  such  a  time,  are  circum- 
stances which,  though  weak  in  themselves, 
are  not  so  disconnected  with  the  main  in- 
quiry as  to  be  inadmissible.  Campbell  v. 
State,  23  Ala.  44. 

291.  The  fact  that  the  prisoner,  after  the 
homicide,  wipes  the  knife  with  which  the 
fatal  wound  was  given,  does  not  call  for  any 
instruction  from  the  court,  but  should  be 
left  to  the  jury  with  the  other  circumstances 
of  the  case.     Pierson  v.  State,  12  Ala.  149. 

292.  Silence  of  prisoner.  What  the  wife 
of  the  prisoner  said  to  him  upon  visiting 
the  scene  of  the  homicide  soon  after  it  oc- 
curred, and  the  fact  that  he  made  no  reply, 
are  admissible  in  evidence  as  a  part  of  the 
res  gestm.     O'Mara  v.  Com.  75  Penn.  St.  424. 

293.  Where  a  person  charged  with  crime, 
who  in  the  course  of  a  judicial  inquii-y  is  at 
liberty  to  speak  or  remain  silent,  does  the 
latter,  his  silence  may  be  taken  into  con- 
sideration by  the  jury  in  deciding  upon  his 
guilt.     State  v.  Swink,  2  Dev.  &  Batt.  9. 

294.  Appearance  of  defendant.  On  a 
trial  for  murder  a  witness  testified  that  he 
called  on  the  defendant  the  next  morning- 
after  the  homicide,  and  told  him  that  the 
police  officers  were  inquiring  for  him.  The 
counsel  for  the  prosecution  asked  the  wit- 
ness ho^y  the  defendant  appeared  at  the 
time,  to  which  the  witness  replied,  "he 
turned  white,  and  then  laughed."  Held  that 
the  evidence  was  proper.  State  v.  Nash,  7 
Iowa,  347. 

295.  But  where  the  prosecutor  has  proved 
how  the  prisoner  appeared  the  evening  of 
the  day  of  the  murder,  and  on  the  following 
day,  he  will  not  be  permitted  to  show  that, 


282 


HOMICIDE. 


Murder. 


Presumptions. 


on  the  third  day  after,  on  being  informed  of 
the  murder,  he  seemed  surprised,  and  ap- 
peared astonished  on  being  told  he  was 
suspected  of  the  murder.  Campbell  v.  State, 
33  Ala.  44. 

296.  Escape  of  defendant.  On  a  trial 
for  murder  it  is  competent  to  prove  that  the 
prisoner,  after  killing  the  deceased,  in  order 
to  escape,  shot  down  another  person,  and 
tried  to  shoot  others.  Revel  v.  State,  26 
Ga.  375.  But  evidence  is  not  admissible  in 
defense  that  the  prisoner's  brother  advised 
him  to  fly  after  suspicions  against  him  be- 
gan to  be  entertained,  and  that  he  refused 
to  do  so.     Com.  V.  Hersey,  3  Allen,  173. 

297.  Handwriting  of  prisoner.  Where 
on  the  trial  of  an  indictment  for  murder  it 
was  proved  that  the  prisoner  had  written 
his  name  in  the  registers  of  three  hotels  in 
as  many  different  cities,  it  was  held  that,  in 
considering  the  question  whether  the  three 
names  were  written  by  the  same  person,  the 
jury  might  comjiare  the  handwritings  in  the 
several  registers.  Crist  v.  State,  31  Ala.  137. 
To  render  the  opinion  of  experts  admissible 
in  evidence  in  such  cases,  it  must  be  founded 
on  a  proposition  which  includes  all  the  facts 
relied  upon  to  establish  the  theory  claimed. 
Lake  v.  People,  1  Parker,  495 ;  13  N.  Y.  358. 

298.  Possession  of  money  by  person 
killed.  On  a  trial  for  murder,  evidence  is 
admissible  that  the  deceased  had  money  in 
his  possession,  as  suggesting  a  motive  for 
taking  his  life.  Whether  the  time  of  the 
possession  of  money  by  him  be,  or  be  not, 
too  remote  to  render  the  evidence  proper, 
must  depend  upon  the  circumstances  of  each 
case.  Proof  that  he  led  a  solitary  life  and 
had  gold  in  his  possession  six  weeks  before 
the  murder,  held  competent.  Kennedy  v. 
People,  39  N.  Y.  345. 

299.  Commission  by  defendant  of  other 
offense.  On  a  trial  for  murder,  evidence  is 
admissible  concerning  a  fight  in  which  the 
prisoner  was  engaged,  but  at  which  the  de- 
ceased was  not  present,  to  show  a  conspiracy 
on  the  part  of  the  prisoner  and  others 
against  the  deceased  and  others,  and  to  con- 
nect the  two  difficulties.  People  v.  Stone- 
cifer,  6  Cal.  405. 

300.  Where  a  hi;sbanu  was  indicted  for 


the  murder  of  his  wife,  by  means  of  his 
slave  and  two  other  persons  as  accessories, 
and  was  also  indicted  for  the  murder  of  his 
slave,  it  was  held,  upon  the  trial  of  the  lat- 
ter indictment,  that  evidence  that  the  de- 
fendant murdered  his  wife,  and  that  the 
other  defendants  were  accessories  before  and 
after  the  fact  to  that  crime,  and  accessories 
after  the  fact  to  the  murder  of  the  slave, 
was  admissible  in  order  to  show  guilty 
motive.     State  v.  Posey,  4  Strobh.  143. 

301.  Suicide  of  person  killed.  The  ex- 
hibition to  the  jury  during  the  recess  of  the 
court,  on  a  trial  for  murder,  of  screws  and 
hooks  inserted  in  a  door,  and  experiments 
made  with  them  in  the  presence  of  the  jury, 
on  the  trial,  for  the  purpose  of  ascertaining 
whether  the  deceased  might  not  have  com- 
mitted suicide  by  hanging,  should  be  per- 
mitted by  the  court  with  great  caution. 
Jumpertz  v.  People,  31  111.  375. 

302.  Demeanor  of  deceased.  On  a  trial 
for  murder,  a  witness  for  the  prisoner  gave 
evidence,  tending  to  show  that  the  deceased 
was  in  the  habit  of  becoming  intoxicated  ; 
and  he  was  then  asked  what  her  demeanor 
was  when  she  was  then  in  that  condition. 
Held  not  material ;  and  that  if  it  had  been, 
the  facts  themselves  should  have  been  offer- 
ed, not  the  conclusions  of  the  witness. 
Shufflin  V.  People,  6  N.  Y.  Supm.  N.  S. 
215. 

303.  Presumptions  in  favor  of  defense. 
Where  on  a  trial  for  murder  alleged  to  have 
been  committed  after  dark,  it  appeared  that 
the  prisoner  and  the  deceased  had  been  on 
friendly  terms,  it  was  held  competent  for  the 
prisoner  to  show  that  immediately  after 
dinner  on  the  day  the  homicide  was  com- 
mitted, the  deceased  and  two  other  persons 
had  quarreled.  Crawford  v.  State,  13  Ga. 
143. 

304.  On  a  trial  for  murder  by  poisoning, 
the  following  instruction  was  held  proper: 
"If  thejuryareof  opinion  that  the  body 
of  the  deceased,  after  being  exhumed  for 
analysis,  was  so  exposed  that  access  could 
be  had  to  it  by  other  parties  than  these 
who  made  the  post  mortem  and  conducted 
the  analysis,  under  such  circumstances  that 
they  could  have  applied  arsenic  to  it,  and 


HOMICIDE. 


283 


Murder. 


Presumptions. 


Admissions  and  Declarations  of  Defendant. 


particularly  if  they  believe  that  K.  B.,  who 
first  charged  the  prisoner  with  poisoning 
his  wife,  had  access  to  the  body  and  tam- 
pered with  it,  then  so  much  of  the  analysis 
as  was  made  after  the  body  was  so  exposed 
and  tampered  with,  is  not  competent  evi- 
dence against  the  prisoner."  Stephens  v. 
People,  19  N.  Y.  549  ;  affi'g  4  Parker,  396. 

305.  On  the  trial  of  an  indictment  for 
murder,  it  appeared  that  the  homicide  oc- 
curred while  the  deceased  was  in  the  act  of 
injuring  a  mining  claim.  Held  competent 
for  the  defense  to  prove  that  the  prisoner 
was  the  owner,  and  in  the  lawful  possession 
of  the  claim  at  the  time  of  the  occurrence,  as 
tending  to  show  the  condition  of  the  pris- 
oner's mind  and  the  character  of  the  oifense. 
People  v.  Costello,  15  Cal.  350. 

306.  On  a  trial  for  murder,  it  is  not  com- 
petent to  show  on  the  part  of  the  defense, 
that  the  accused  had  been  a  deformed  cripple 
from  infancy,  and  thereby  rendered  nervous 
and  sensitive  to  fear  from  external  violence. 
State  V.  Shoultz,  25  Mo.  128. 

307.  On  a  trial  for  murder,  the  prisoner 
offered  to  prove  that  the  son  and  the  widow 
of  the  deceased  had  employed  counsel  to 
assist  the  prosecution,  and  had  agreed  to 
pay  him  a  fee  in  case  of  conviction.  The 
court  admitted  evidence  of  the  employment 
of  the  assistant  counsel,  but  rejected  the 
testimony  as  to  character  of  the  fee.  Held 
proper.     Beauchamp  v.  State,  6  Blackf.  299. 

308.  Where  the  person  injured  does  not 
die  within  a  year  and  a  day  after  the  wound 
is  given,  the  presumption  is  that  his  death 
proceeded  from  some  other  cause.  State  v. 
Orrell,  1  Dev.  139. 

309.  Presumption  from  record.  Where 
the  juiy,  on  a  trial  for  murder,  render  a  ver- 
dict that  the  prisoner  at  the  bar  is  guilty, 
and  the  clerk  in  recording  the  verdict  calls 
him  the  prisoner  at  the  bar,  the  record  suf- 
ficiently shows  that  the  prisoner  was  present 
in  court  when  the  verdict  was  rendered. 
State  V.  Collins,  8  Ired.  407. 

310.  Where  an  indictment  for  murder  de- 
scribes the  defendant  as  a  freedman,  biit  the 
record  does  not  sliow  whether  the  offense 
was  committed  while  the  defendant  was  a 
slave,  or  after  he  became  free,  the  appellate 


court  will  presume,  when  necessary  to  sus- 
tain the  judgment  of  the  court  below,  that 
the  offense  was  proved  to  have  been  com- 
mitted after  the  abolition  of  slavery.  Tempe 
V.  State,  40  Ala.  350. 

(e)  Admissions  and  declarations  of  defendant.. 

311.  In  general.  On  a  trial  for  murder, 
the  declarations  of  the  parties  a  short  time 
previous  to  the  homicide,  while  going  to- 
ward the  place  where  it  occurred,  showing 
why  they  were  going  in  that  direction,  and 
for  what  purpose  they  were  seeking  the  de- 
ceased, are  admissible  in  evidence  as  a  part 
of  the  res  gestce.  Garber  v.  State,  4  Cold. 
Tenn.  161. 

312.  On  a  trial  for  murder,  what  the  pris- 
oner had  said  of  the  deceased,  more  than  a 
year  before  the  homicide,  was  held  admissi- 
ble to  show  the  relation  existing  between 
the  prisoner  and  the  deceased  ;  also  that  the 
prisoner  had  stated  a  short  time  before  the 
alleged  murder  that  the  deceased  was  jeal- 
ous of  her;  also,  that  evidence  was  admissi- 
ble to  show  that  a  few  days  previous  to  the 
homicide  the  deceased,  who  owned  the  house 
in  which  the  prisoner  was  then  living,  had 
agreed  to  rent  it  to  another  person,  although 
the  prisoner  was  not  present  at  the  making 
of  the  agreement.  People  v.  Cunningham, 
6  Parker,  398. 

313.  Where,  on  a  trial  for  murder,  the  de- 
fense is  insanity,  the  subsequent,  as  well  as 
previous  acts  and  declarations  of  the  prison-  ^A 
er  are  admissible  in  evidence.     McLean  v.       / 
State,  16  Ala.  673. 

314.  On  a  trial  for  murder,  it  appearing 
that  a  letter  was  found  on  the  day  on  which 
the  homicide  was  committed,  near  the  door 
of  the  house  in  which  the  deceased  was 
killed,  which  purported  to  have  been  sent 
by  the  prisoner,  and  which  was  proved  to 
have  never  been  delivered  to  the  person  to 
whom  it  was  addressed,  it  was  held  that  the 
prosecution  might  show  by  the  person  wha 
found  the  letter  that  he  exhibited  it  to  the 
prisoner,  and  asked  him  if  he  knew  anything 
about  it,  and  that  the  prisoner,  who  could 
neither  read  or  write,  at  first  denied  all 
knowledge  of  it,  but,  on  being  questioned  a 
second  time,  said    "  that  it  looked  like  a 


284 


HOMICIDE. 


Murder. 


Admissions  and  Declarations  of  Defendant. 


note  that  was  handed,  to  him  by  L.  P.  to 
carry  to  his  brother,  J.  P. "  (mentiouing  the 
names  of  the  person  by  whom  the  letter  was 
written,  and  the  person  to  whom  it  was  ad- 
dressed).    Mose  V.  State,  35  Ala.  421. 

315.  On  a  trial  for  murder,  it  was  proved 
that  the  deceased  was  last  seen  in  company 
with  the  prisoner  and  his  wife,  wliom  he 
was  engaged  in  moving  from  an  adjoining 
State,  and  that  they  were  seen  after  his  dis- 
appearance prosecuting  their  journey  in  his 
Avagon.  A  person  who  helped  arrest  the 
prisoner,  and  who  was  acquainted  with  him 
and  with  the  deceased,  tiestified  that  the 
prisoner's  wife,  at  the  time  of  the  arrest, 
"  ran  out  of  the  house,  and  slapping  her 
husband  on  the  shoulder,  said,  'I  told  you 
that.  Tommy,'  to  which  the  prisoner  replied, 
^Go  off,  God  damn  you,  and  hold  your 
tongue,  and  speak  to  nobody  about  it.' " 
HeU,  that  the  wife's  exclamation,  and  the 
prisoner's  reply  to  her  were  admissible 
against  him.     Liles  v.  State,  30  Ala.  24. 

316.  Conversation  between  prisoner  and 
deceased.  Where  on  a  trial  for  murder, 
it  was  i^roved  that  the  prisoner  and  the 
deceased  were  in  company  several  hours 
previous  and  up  to  the  homicide,  it  was 
held  that  all  that  transpired  and  was  said 
between  them  during  that  time  was  admis- 
sible in  evidence  as  part  of  the  res  gestm. 
People  V.  Potter,  5  Mich.  1. 

317.  Threats  by  defendant.  On  a  trial 
for  murder,  evidence  of  threats  made  by  the 
defendant  a  long  time  prior  to  the  homicide 
are  admissible  in  evidence  to  show  malice. 
People  V.  Cronin,  34  Cal.  191.  And  where 
a  policeman  was  killed,  it  was  held  compe- 
tent to  prove  that  the  prisoner,  shortly  be- 
fore the  homicide,  made  threats  against 
policemen  generally.  Dixon  v.  State,  13 
Fla.  G36 ;  s.  c.  1  Green's  Grim.  Reps.  687. 

318.  Where,  on  a  trial  for  murder  by 
poisoning,  it  was  proved  that  a  short  time 
prior  to  the  procuring  and  administration  of 
the  poison  the  prisoner  had  in  his  possession 
a  slung-shot,  which  he  said  was  going 
through  J.'s  (the  deceased's)  head,  it  was 
held  that  the  evidence  was  admissible  on 
the  question  of  intent,  and  that  it  was 
proper  to  produce  and  identify  the   slung- 


shot    on  the  trial.    La  Beau  v.   People,    6 
Parker,  371 ;  34  N.  Y.  223. 

319.  On  the  trial  of  an  indictment  against 
a  married  woman  for  the  murder  of  her  hus- 
band, it  was  proved  that  the  homicide  was 
committed  the  5th  of  July ;  that  on  the  30th 
of  the  previous  March,  a  suit  for  divorce  was 
commenced  against  her,  by  her  husband,  and 
that  a  short  time  before  the  bringing  of  the 
suit,  she  had  declared  that  her  husband 
would  never  get  a  divorce,  that  she  under- 
stood he  was  to  be  a  witness  against  her,  but 
that  he  never  should  live  to  swear  against 
her,  for  she  would  kill  him  first,  and  that  she 
would  have  her  revenge  against  all  the  wit- 
nesses who  should  testify  against  her  in  the 
divorce  suit.  Held,  no  ground  of  exception. 
Com.  v.  Madan,  102  Mass.  1. 

320.  On  a  trial  for  murder,  it  is  competent 
to  show  that  the  defendant  within  an  hour 
of  the  homicide,  declared  that  "  he  would 
kill  somebody  before  twenty-four  hours, 
although  he  did  not  expressly  refer  to 
the  deceased.  Hopkins  v.  Com.  50  Penn. 
St.  9. 

321.  On  a  trial  for  murder,  the  prosecution 
may  show  that  threats  were  made  by  the 
accused  against  the  property  of  a  third  per- 
son then  in  the  possession  of  the  deceased, 
but  which  was  found  soon  after  the  murder, 
in  the  possession  of  the  accused.  Mimms  v. 
State,  16  Ohio,  K  S.  221. 

322.  Where  on  a  trial  for  murder,  threats 
are  proved  to  have  been  made  by  the  accused 
against  the  deceased,  he  may  interrogate  the 
witness  as  to  irritating  language  employed 
at  the  same  time  by  the  deceased,  which 
provoked  the  threats.  Threats  made  by  the 
deceased  against  the  accused  are  not  com- 
petent evidence  in  his  favor,  unless  they 
were  communicated  to  him  previous  to  the 
homicide.  Atkins  v.  State,  16  Ark.  568; 
Coker  v.  State,  20  lb.  53.  But  see  2MSt,  sub 
(g),  contra. 

323.  Testimony  before  coroner.  On  a 
trial  for  murder,  what  the  accused  testified 
at  the  coroner's  inquest,  before  it  was  as- 
certained that  a  murder  had  been  committed, 
is  admissible  in  evidence  against  him.  Hen- 
dricksou  agst.  People,  10  N.  Y.  13,  Selden 


HOMICIDE. 


285 


Murder. 


Admissions  and  Declarations  of  Defendant. 


and   Allen,    JJ.,    dissenting;     approved   in 
Teachout  v.  People,  41  N.  Y.  7. 

324.  At  the  time  of  the  investigation  be- 
fore the  coroner,  the  prisoner  had  not  been 
arrested,  though  he  had  been  charged  with 
the  murder.  He  was  cautioned  that  he  was 
not  obliged  to  testify  to  anything  that  might 
criminate  him,  and  made  no  objection  to  be 
sworn.  His  testimony  contained  no  confes- 
sion, but  a  denial  of  all  knowledge  of  the 
homicide.  Held  that  his  testimony  so  given 
by  him  before  the  coroner,  was  admissible 
against  him  on  a  trial  for  murder.  State  v. 
Gilman,  51  Maine,  206. 

325.  On  a  trial  for  murder,  the  prosecution 
offered  in  evidence  the  deposition  of  the 
defendant  taken  on  her  examination  as  a 
witness  before  the  coroner,  taken  before  her 
arrest,  and  before  any  charge  had  been  made 
against  her,  although  she  then  knew  that 
she  was  suspected.  When  before  the  coroner 
she  was  advised  by  her  coimsel  that  she  had 
a  right  to  refuse  to  answer  in  regard  to  any- 
thing which  tended  to  show  her  guilt.  She 
attended  before  the  coroner  under  a  subpoena, 
and  her  deposition  was  in  writing  and  signed 
by  her  after  it  had  been  read  over  to  and 
corrected  by  her.  Held  admissible.  People 
V.  McCranie,  6  Parker,  49. 

326.  On  a  trial  for  murder,  the  prosecution 
may  prove  what  the  prisoner  swore  before  a 
coroner's  jury,  at  an  inquest  held  on  the  body 
of  the  deceased,  though  it  appear  that  he 
and  others  were  at  the  time  under  arrest  for 
the  alleged  murder,  the  inquiry  on  such  in- 
quest not  having  been  as  to  the  guilt  of  the 
accused,  but  being  to  ascertain,  if  possible, 
who  was  the  murderer.  People  v.  Thayer, 
1  Parker,  595. 

327.  On  a  trial  for  murder,  the  fact  that 
the  prisoner's  answers  before  the  coroner's 
jury  were  taken  down  in  writing,  is  no  reason 
for  excluding  other  statements  made  by  him 
at  other  times.  Com.  v.  Dower,  4  Allen, 
297. 

328.  On  a  trial  for  murder,  after  proving 
on  the  cross-examination  of  a  daughter  of 
the  defendant,  that  she  had  been  examined 
as  a  witness  before  the  coroner,  and  that  her 
deposition  had  been  read  over  to  and  signed 
by  her,  the  prosecution  offered  in  evidence 


her  testimony  so  taken  before  the  coroner  to 
contradict  her.  Held  admissible,  although 
the  witness's  attention  had  not  been  previous- 
ly called  to  the  subject.  People  v.  McCranie, 
6  Parker,  49. 

329.  Testimony  before  magistrate.  On 
a  trial  for  murder,  it  appeared  that  the  father 
of  the  prisoner  had  been  arrested  and  exam- 
ined before  a  magistrate,  on  a  complaint 
against  him  for  the  same  murder,  and  that 
on  such  examination,  one  of  the  accused, 
who  was  also  at  the  same  time  under  arrest 
for  the  murder,  voluntarily  testified  on  such 
examination.  Held,  that  his  statement  made 
under  oath,  on  such  examination,  was  ad- 
missible in  evidence  against  him.  Peoijlev. 
Thayer,  1  Parker,  595. 

330.  Admissions  in  affidavit.  On  atrial 
for  murder,  the  voluntary  statements  of  the 
accused,  made  in  an  affidavit  for  a  continu- 
ance, are  admissible  in  evidence  against  him. 
Coker  v.  State,  20  Ark.  53. 

331.  Confessions.  Oa  a  trial  for  murder, 
the  prisoner's  confessions  were  held  admissi- 
ble, although  made  to  the  officer  who  was 
carrying  him  before  an  examining  court,  and 
who  had  said  to  him,  "  If  you  know  anything 
about  the  circumstances,  it  will  be  better  to 
tell  the  truth  about  it,"  notwithstanding 
another  officer  had  previously  told  him  that 
his  supposed  accomplice  had  been  arrested 
and  shot,  which  statement  was  false,  and 
made  to  induce  a  confession.  King  v.  State, 
40  Ala.  314,  Byrd,  J.,  dissenting. 

332.  But  where  a  surgeon  visiting  a  pris- 
oner accused  of  murder,  said  to  her,  ' '  You 
are  under  suspicion  of  this,  and  had  better 
tell  all  you  know,  it  would  have  been  better 
if  you  had  told  at  first,"  it  was  held  that  the 
prisoner's  confession  could  not  be  given  in 
evidence.     Ann  v.  State,  11  Humph.  150. 

333.  A  boy  of  the  age  of  twelve  years  and 
five  months  may  be  found  guilty  of  murder 
on  his  confession  of  the  crime,  and  executed ; 
the  capacity  to  commit  a  crime  implying  the 
capacity  to  confess  it.  State  v.  Guild,  5 
Halst.  163. 

334.  Where,  on  a  trial  for  murder  by 
poisoning,  it  was  jirovcd  that  the  deceased 
had  all  the  symptoms,  and  might  have  died 
of  conjestion  of  the  brain  or  stomach,  and 


286 


HOMICIDE. 


Murder. 


Admissions  and  Declarations  of  Defendant. 


tlie  same  symptoms  indicated  poisoning  by 
the  narcotic  stramonium,  it  was  held  that 
these  facts,  in  connection  with  the  confession 
of  the  accused  that  he  administered  stra- 
monium to  the  deceased,  were  not  sufficient 
to  warrant  conviction.  Pitts  v.  State,  43 
Miss.  472. 

335.  Acts  and  declarations  of  defend- 
ant in  his  own  behalf  On  a  trial  for  mur- 
kier, the  prisoner  may  show  what  he  was 
doing  when  he  met  the  deceased,  and  what 
liis  conduct  was  a  short  time  before  the  afiray 
which  resulted  in  the  killing.  Stewart  v. 
State,  19  Ohio,  302. 

336.  A  witness  being  asked  by  the  pris- 
oner's counsel,  on  a  trial  for  murder,  why 
she  put  a  particular  question  to  the  deceased 
just  before  his  death,  replied  that  she  did 
so  in  consequence  of  what  the  prisoner  had 
told  her  some  two  hours  previous.  Held 
that  the  prisoner  could  not  give  in  evidence 
his  conversation  with  the  witness  at  the  time 
referred  to.     McLean  v.  State,  16  Ala.  072. 

337.  On  a  trial  for  murder,  the  prisoner 
cannot  give  in  evidence  his  own  account  of 
the  affair,  related  immediately  after  the  oc- 
currence, although  he  and  the  deceased  were 
the  only  persons  present  when  the  homicide 
was  committed.     State  v.  Tilly,  3  Ired.  424. 

338.  But  a  statement  made  by  the  accused, 
a  few  minutes  after  the  homicide,  and  near  the 
place  of  its  occurrence,  is  admissible  in  evi- 
dence in  his  behalf,  as  a  part  of  the  res  gestcB. 
Little  V.  Com.  25  Gratt.  921. 

339.  On  a  trial  for  murder,  the  prosecution 
proved  that  immediately  after  the  homicide, 
the  witness  saw  the  prisoner  at  the  post 
office,  where  the  prisoner  stayed  ten  or  fif- 
teen minutes,  and  that  he  seemed  excited, 
and  to  be  trying  to  conceal  it.  Held  that 
the  conversation  of  the  prisoner  on  that  oc- 
casion was  admissible  in  his  favor,  as  bear- 
ing upon  the  question  of  his  alleged  excite- 
ment or  agitation  of  mind.  Dillin  v.  Peo- 
ple, 8  Mich.  357,  Martin,  Ch.  J.,  contra. 

340.  On  a  trial  for  murder,  a  witness 
swore  that  he  was  thirty  or  forty  yards  from 
the  house  where  the  deceased  was  shot;  that 
upon  hearing  the  report  of  the  pistol,  he 
saw  a  person,  whom  he  took  to  be  the  pris- 
oner, run  out,  turn  and  run  in,  and  imme- 


diately run  out  again  to  where  witness 
stood;  that  when  he  came  to  witness,  he 
seemed  greatly  agitated  and  troubled,  and 
at  the  moment  of  coming  up  to  him  ex- 
claimed that  he  would  not  have  done  it  for 
the  world ;  and  that  one  minute  would  prob- 
ably cover  the  time  from  the  firing  until  the 
prisoner  uttered  the  exclamation  ;  two  cer- 
tainly would.  Held  that  the  exclamation 
was  admissible  in  evidence.  Mitchum  v. 
State,  2  Ga.  615. 

341.  On  the  trial  of  several  slaves  for  the 
murder  of  another  slave,  a  witness  for  the 
State  (one  B.)  testified  that  "■  he  overtook  the 
defendants  immediately  after  the  fight,  go- 
ing towards  the  house  of  one  W. ;  that  one 
of  them  was  bleeding  profusely  from  a 
wound  on  the  back  of  his  head ;  that  on  his 
inquiring  how  it  happened,  Frank  gave  him 
a  false  account  of  the  fight,  and  tried  to  con- 
ceal the  fact  that  any  serious  hurt  had  been 
done  to  any  one,  and  that  when  he  got  to 
W.'s  house,  he  went  in  and  brought  W.  out 
into  the  yard  where  the  negroes  were.  W. 
was  afterwards  introduced  as  a  witness  for 
the  defense,  and  the  prisoners  offered  to 
prove  by  him,  that  when  he  came  oat, 
Frank,  in  reply  to  questions  asked  by  him, 
made  a  full  and  fair  statement  of  all  that 
occurred  in  the  fight — the  wounds  which  he 
had  inflicted  upon  the  deceased,  the  manner 
in  which  the  fight  had  been  brought  about, 
and  the  way  in  which  he  had  been  wounded." 
Held  that  these  declarations  were  admissible 
for  the  prisoners,  being  a  continuation  of 
the  conversation  commenced  with  B.  Frank 
V.  State,  27  Ala.  37. 

342.  Where,  on  a  trial  for  murder,  it  was 
proved  that  the  accused  shot  the  deceased 
as  he  was  coming  up  the  street  toward  the 
accused's  office,  it  was  held  that  the  ac- 
cused's declaration  to  the  witness,  "Yonder 
comes  M.  (the  deceased)  with  his  yauger," 
was  admissible  in  evidence,  but  not  the  state- 
ment which  followed,  "  He  intends  to  shoot 
or  kill  me.''  Held.,  also,  that  the  declaration 
of  the  accused,  to  a  witness,  before  the 
shooting,  that  he  saw  the  conduct  of  the  de- 
ceased that  morning,  which  conduct  was 
shown  by  the  witness  to  have  have  been 
violent  and  threatening,  as  he  passed  with 


HOMICIDE. 


287 


Murder. 


Admissions  and  Declarations  of  Codefendant. 


his  gun,  was  admissible,  as  proving  the  ac- 
cused's cause  of  alarm.  Monroe  v.  State,- 5 
Ga.  85. 

343.  On  a  trial  for  murder,  in  the  course 
of  the  examination  of  the  accused  as  a  wit- 
ness in  his  own  behalf,  a  conversation  was 
elicited  tending  to  establish  admissions  by 
him.  Held  that  he  was  entitled  to  state  the 
exact  words  constituting  the  alleged  admis- 
sions, and  also  the  whole  conversation  re- 
lating to  the  subject-matter.  People  v. 
Murphy,  39  Cal.  52. 

344.  Declaration  of  third  person  in  de- 
fendant's favor.  On  a  trial  for  murder, 
the  declaration  of  a  person  who  had  left  the 
State,  and  who  had  as  strong  motives  as  the 
prisoner  to  commit  the  deed,  that  the  pris- 
oner was  not  the  right  man,  is  not  admissi- 
ble.    State  V.  Terrell,  12  Rich.  321. 

(/)    Admissions    and    declarations    of   code- 
fendant. 

345.  Statements  in  relation  to  occur- 
rence. Where  on  the  trial  of  A.  for  mur- 
der, a  conspiracy  to  commit  the  crime  is 
proved  to  have  been  entered  into  by  A.  and 
B.,  the  declarations  of  B.  are  entitled  to  the 
same  weight  as  if  made  by  A.  People  v. 
Geiger,  49  Cal.  643. 

346.  On  a  trial  for  murder,  the  court  per- 
mitted a  witness  to  detail  statements  made 
to  him  by  one  D.,  in  the  absence  of  the  ac- 
cused, ten  days  previous  to  the  homicide, 
it  having  been  first  proved  that  the  accused, 
D.,  and  others,  were  present  at  and  partici- 
pated in  the  murder.  Held  proper.  Rice 
v.  State,  7  Ind.  332. 

347.  On  a  trial  for  murder,  the  evidence 
tended  to  prove  that  certain  moneys  and 
watches  were  in  the  possession  of  the  de- 
ceased ;  that  after  the  murder,  part  of  the 
money  was  found  in  the  possession  of  the 
prisoner;  that  the  watches  produced  on  the 
trial  belonged  to  the  deceased ;  that  subse- 
quent to  the  homicide,  the  prisoner  was  at 
B.'s  and  in  communication  with  him,  and 
that  the  watches  were  found  concealed  under 
B.'s  bam.  Held  that  the  conduct  and  decla- 
rations of  B.,  at  the  time  and  place  of  find- 
ing the  watches,  were  admissible  in  evi- 
dence, to   show   in   connection   with   other 


proof  that  B.  was  made  custodian  of  the 
watches  by  the  prisoner.  Mimms  v.  State, 
16  Ohio,  N.  S.  221. 

348.  Threats.  On  a  trial  for  murder, 
threats  made  by  one  of  several  defendants 
who  were  engaged  in  a  conspiracy  a  few 
hours  before  the  killing,  in  the  presence  and 
hearing  of  the  others,  and  also  immediately 
afterward,  are  admissible  in  evidence  against 
the  others.     Mask  v.  State,  32  Miss.  405. 

349.  On  the  separate  trial  of  A.,  who  was 
jointly  indicted  with  B.  and  C,  for  murder, 
the  threats  of  the  latter  against  the  deceased, 
made  when  A.  was  not  present,  were  held 
admissible  in  evidence,  it  having  been  proved 
that  the  parties  were  acting  in  concert  in 
the  prosecution  of  a  common  design,  and 
that  although  temi^orarily  separated,  such 
separation  was  for  the  purpose  of  j^roviding 
weapons  and  making  preparations  to  carry 
their  design  into  execution.  Gardner  v. 
People,  3  Scam.  84. 

350.  Three  brothers,  N.,  .J.  and  W.,  were 
indicted  for  murder,  N.,  as  accessory  before 
the  fact,  and  J.  and  W.  as  principals.  Upon 
the  trial  of  J.  and  W.,  it  was  held  that  the 
prosecution,  without  having  proved  any  con- 
federacy between  J.  and  N.,  might  prove 
expressions  of  hostility  toward  the  deceased, 
uttered  to  N.,  in  the  j^resence  of  J.,  but  not 
responded  to  or  acquiesced  in  by  him,  as 
testimony  which  in  connection  with  the 
relations  existing  between  J.  and  N.  might 
tend  to  show  a  motive  on  the  part  of  J.  for 
committing  the  crime.  State  v.  Gordon,  1 
R.  I.  179. 

351.  It  is  not  error  on  a  trial  for  murder 
to  refuse  to  permit  the  accused  to  prove  that 
another  person  had  made  threats  to  kill  the 
deceased  just  before  the  homicide,  and  that 
immediately  after  the  homicide,  such  other 
person  left  the  country  and  has  not  since 
been  heard  from.  Crook  ham  v.  State,  5 
West  Va.  510. 

352.  On  a  trial  for  murder,  threats  of 
other  persons  against  the  deceased,  or  ad- 
missions by  them  that  they  had  killed  him, 
are  hearsay,  and  inadmissible.  State  v. 
Duncan,  G  Ired.  236. 

353.  Husband  and  wife.  On  a  trial  of 
a  wife  for  murder,  the  declarations  of  the 


288 


HOMICIDE. 


Murder. 


Admissions  of  Codefendant. 


Declarations  of  Person  Killed. 


husband  to  a  tbird  person,  that  he  made 
her  commit  the  crime,  are  not  competent 
evidence  in  her  favor.  Edwards  v.  State, 
27  Ark.  493. 

354.  But  on  a  trial  for  murder,  the  ex- 
clamation and  acts  of  the  wife  of  the  pris- 
oner at  the  time  of  the  homicide,  and  in  the 
presence  of  the  prisoner,  tending  to  show 
complicity  between  the  prisoner  and  his  wife 
in  the  killing,  are  admissible  in  evidence 
against  him.     People  v.  Murphy,  45  Cal.  137. 

355.  Under  an  indictment  charging  two, 
one  as  principal  in  a  murder,  and  the  other 
as  present,  aiding  and  abetting ;  if  they  are 
tried  separately,  the  wife  of  one  is  a  compe- 
tent witness  for  the  other.  Wakeman  v. 
State,  4  Sneed,  425. 

356.  Declarations  of  witness.  The  tes- 
timony of  a  witness  taken  down  in  writing 
on  a  coroner's  inquest,  in  the  absence  of  the 
prisoner,  by  the  coroner,  signed  by  the  wit- 
ness and  returned  to  the  clerk,  is  not  admis- 
sible in  evidence  against  the  prisoner,  on  a 
trial  for  murder,  after  the  death  of  the  wit- 
ness.    State  V.  Campbell,  1  Rich.  124. 

357.  Where  on  a  trial  for  murder,  a  wit- 
ness on  cross-examination  denied  that  he 
had  made  threats  against  the  deceased,  it 
was  held  that  such  threats  might  be  proved 
for  the  purpose  of  impeaching  him.  Gaines 
V.  Com.  50  Penn.  St.  319. 

358.  On  the  trial  of  an  indictment  for  the 
murder  of  one  Blanchard,  an  accomj^lice  con- 
veyed by  his  testimony  in  chief  the  idea  that 
he  was  a  reluctant  and  unwilling  abettor  in 
the  crime,  charged  the  prisoner  with  the  ac- 
tual execution  of  the  murder,  and  exonerated 
himself  from  any  further  criminality  than 
going  with  the  accused  to  whip  or  chastise 
Blanchard.  Held  that  the  question  on  cross- 
examination,  "  Did  you  not  a  few  days  before 
the  homicide  state  that  you  intended  to  kill 
Blanchard  ? "  was  proper  to  contradict  the 
witness  and  affect  his  credibility  with  the 
jury.     People  v.  Williams,  18  Cal.  187. 

359.  Record  of  conviction  or  acquittal. 
An  indictment  charged  A.,  B.  and  C.  as 
principals  in  murder,  but  alleged  that  the 
fatal  blow  was  given  by  A.,  and  that  B.  and 
C.  were  present  aiding  and  abetting  him. 
The  defendants  being  tried  separately,  and 


A.  convicted,  it  was  held  that  the  record  of 
Ai's  conviction  was  not  admissible  in  evi- 
dence on  the  trial  of  his  codefendants. 
People  V.  Bearss,  10  Cal.  68 ;  affi'd  People  v. 
Newberry,  20  Cal,  439.  And  where  A.,  B. 
and  C,  being  jointly  indicted,  A.  as  princi- 
pal and  B.  and  C.  as  aiders  and  abettors  in 
the  murder  of  D.,  and  A.  tried  first  and  ac- 
quitted, it  was  held  that  the  record  of  his 
acquittal  was  not  competent  evidence  in 
favor  of  B.  and  C.  State  v.  Phillips,  24 
Mo.  475 ;  State  v.  Ross,  29  lb.  32. 

{g)  Declarations  of  person  hilled. 

360.  Complaint.  On  a  trial  for  murder, 
the  complaint  of  the  deceased  of  pain  within 
two  hours  after  the  mortal  wound  was  in- 
flicted is  competent  evidence.  Livingston 
V.  Com.  14  Graft.  592. 

361.  Statement  as  to  cause  of  injury. 
Where  a  person  has  received  a  mortal 
wound,  Ms  statement  as  to  the  cause  of  the 
injury,  made  immediately  afterward,  is  ad- 
missible in  evidence  as  part  of  the  res  gestce, 
Donnelly  v.  State,  2  Dutch.  601. 

362.  But  in  order  to  render  the  declara- 
tion of  the  deceased  after  he  received  the 
mortal  wound  part  of  the  res  gestoB,  it  must 
have  been  made  recently  after  the  injury^ 
and  before  he  had  time  to  make  up  a  story. 
Hill  V.  Com.  2  Graft.  594. 

363.  On  a  trial  for  murder,  a  witness 
testified  that  he  heard  the  deceased  crying 
for  help;  that  he  called  out  to  him  to  know 
what  was  the  matter,  and  that  the  deceased 
replied  that  somebody  was  killing  him  and 
cutting  him  with  a  knife,  and  that  it  was 
the  accused.  Another  witness  testified  that 
he  heard  the  deceased  calling  a  number  of 
times ;  that  he  asked  him  what  was  the  mat- 
ter ;  that  he  answered  that  "  C."  (the  ac- 
cused) "  has  stabbed  me ;  he  has  killed  me ; 
for  God's  sake  run  for  the  doctor."  Held 
admissible  as  part  of  the  res  gestae.  Crook- 
ham  V.  State,  5  West  Va.  510. 

364.  On  a  trial  for  murder,  the  evidence 
tended  to  show  that  the  prisoner,  after 
fatally  stabbing  the  deceased  in  the  night, 
immediately  ran  away.  Held  that  the  ex- 
clamation of  the  deceased  to  a  person  who 
went  to  him  a  moment  afterward,  that  the 


HOMICIDE. 


289 


Murder, 


Declarations  of  Person  Killed. 


prisoner  had  stabbed  him,  was  admissible  as 
a  part  of  the  res  gestm.  Com.  v.  Hackett,  2 
Allen,  136. 

365.  On  a  trial  for  murder,  evidence  is 
admissible  that  the  defendant  and  the  de- 
ceased after  the  occurrence,  and  •while  the 
deceased  believed  he  was  gomg  to  die, 
talked  it  over,  and  that  the  deceased  said  he 
was  to  blame  and  asked  the  defendant  to 
forgive  him.     Hurd  v.  People,  25  Mich.  405. 

366.  On  the  trial  of  an  indictment  for 
murder,  it  was  proved  that  the  deceased, 
who  was  an  aged  woman,  was  found  lying 
dead  near  her  dwelling-house,  about  twelve 
o'clock  of  the  day,  with  her  face  and  head  in 
a  pool  of  water,  and  that  the  prisoner  was 
in  her  employ  as  a  hired  man  and  the  only 
other  member  of  her  family.  Held  that  the 
evidence  offered  by  the  defense  that  the 
deceased  a  year  before  her  death  had  stated 
to  the  witness  that  she  was  subject  to  fits, 
and  had  several  times  fallen  upon  her  face 
when  alone,  was  inadmissible  on  the  ground 
that  it  was  mere  hearsay.  State  v.  Dart,  29 
Conn.  153. 

367.  On  a  trial  for  murder  by  poisoning, 
the  declarations  of  the  deceased  tending  to 
throw  light  upon  the  cause  of  death,  or 
upon  any  criminal  relation  with  the  proxi- 
mate cause,  are  proper  and  original  evi- 
dence; as  that  the  deceased  several  days 
before  her  fatal  illness  made  a  threat  that 
she  would  poison  herself.  Shaw  v.  People, 
5  N.  Y.  Supm.  N.  S.  439. 

368.  Declarations  of  deceased  as  to  his 
intentions.  Where  on  a  trial  for  murder  the 
evidence  was  wholly  circumstantial,  it  was 
held  that  declarations  of  the  deceased  made 
tlie  day  before  his  death  as  to  the  object  and 
purpose  of  a  contemplated  journey  -which  he 
took,  were  admissible  in  explanation  of  a 
conversation  had  in  the  presence  of  the  ac- 
cused, and  as  a  part  of  the  res  gestm,  Carroll 
V.  State,  3  Humph.  315. 

369.  Although  when  it  is  necessary  to  in- 
quire into  the  nature  of  a  j^articular  act  or 
the  intention  of  the  actor,  proof  of  what  the 
person  said  at  the  time  of  doing  it  is  ad- 
missible, yet  to  render  the  declaration  com- 
petent, the  act  with  which  it  is  connected 
must  be  pertinent  to  the  issue.     Where  on  a 

19 


trial  for  murder  it  was  proved  that  the  ac- 
cused lived  apart  from  his  wife  in  the  city 
of  New  York,  and  that  she  left  home  Satur- 
day night  and  returned  the  next  morning 
ill,  and  continued  so  until  she  died,  appar- 
ently from  poisoning,  it  was  held  that  what 
the  deceased  said  when  she  went  away 
Saturday  evening  as  to  where  she  was  going 
was  not  admissible  in  evidence ;  and  where 
such  proof  was  given,  and  that  she  said  she 
was  going  with  clothing  for  her  husband, 
it  was  held  error.  People  v,  Williams,  3 
Parker,  84;  s.  c,  1  N.  Y.  Ct.  of  Appeals 
Decis.  596. 

370.  It  is  not  competent  for  the  defendant 
on  a  trial  for  murder  to  prove  that  the  de- 
ceased, before  he  left  home,  told  the  witness 
that  he  intended  to  leave  soon,  and  that 
when  he  left  he  would  never  make  himself 
known  or  be  heard  from  by  his  family. 
State  V.  Vincent,  24  Iowa,  570. 

371.  On  a  trial  for  murder,  it  is  not  com- 
petent to  show  that  the  day  previous  to  the 
homicide,  the  deceased,  the  prisoner  not 
being  present,  stated  that  he  was  going  to 
the  place  where  his  body  was  afterward 
found,  and  that  the  prisoner  was  going  with 
him.  Kirby  v.  State,  2  Yerg.  383.  But  on 
the  trial  of  an  indictment  for  murder  it  was 
held  competent  to  prove,  for  the  purpose  of 
identifying  the  dead  body  as  being  that  of 
a  person  who  was  seen  the  night  before,  that 
he  then  stated  that  a  certain  horse  had  got 
away  from  him,  and  upon  being  told  that 
the  defendant  had  such  a  horse,  said  that 
the  defendant  was  the  man  he  wished  to  see, 
and  thereupon  went  in  pursuit  of  him. 
Hamby  v.  State,  36  Texas,  523;  s.  c.  1 
Green's  Crim.  Keps.  650. 

372.  On  the  trial  of  an  indictment  for 
murder  alleged  to  have  been  committed 
while  the  deceased  and  the  defendant  were 
traveling  in  company,  evidence  is  admis- 
sible as  to  what  the  deceased  said  on  the 
journey  as  to  where  they  had  come  from,  and 
where  they  were  going,  although  the  decla- 
rations were  made  in  the  defendant's  ab- 
sence.    State  V.  Vincent,  24  Iowa,  570. 

373.  On  the  trial  of  an  indictment  for 
murder,  evidence  offered  tending  to  prove 
that  the  deceased,  who  was  the  father  of 


290 


HOMICIDE. 


Murder. 


Declarations  of  Person  Killed. 


the  defendant's  wife,  was  and  had  been  in 
league  with  one  C.  to  induce  the  defendant's 
wife  to  leave  him  and  elope  with  C,  was 
rejected  by  the  court.  Held  that  the  acts, 
sayings,  and  doings  of  the  deceased  of  a 
a  recent  date,  which  had  come  to  the  knowl- 
edge of  the  defendant,  should  have  been 
admitted,  as  tending  to  show  the  state  of 
the  defendant's  mind.  Cheek  v.  State,  35 
Ind.  492. 

374.  Must,  in  general,  have  come  to 
defendant's  knowledge.  As  a  general  rule, 
on  a  trial  for  murder,  a  declaration  made  by 
the  deceased,  which  did  not  come  to  the 
knowledge  of  the  accused,  is  not  admissible 
in  evidence  in  behalf  of  the  defendant. 
Messner  v.  People,  45  N.  Y.  1 ;  Edgar  v. 
State,  43  Ala.  45;  Powell  v.  State,  19  lb. 
577 ;  Hoye  v.  State,  39  Ga.  718. 

375.  Therefore,  declarations  of  the  de- 
ceased, made  several  hours  previous  to  the 
homicide,  in  the  absence  of  the  defendant, 
tending  to  prove  the  defendant's  presence  at 
the  house  of  the  deceased  the  night  of  the 
murder,  not  being  a  part  of  the  res  gest(P,  or 
made  in  extremis,  are  not  admissible  in  evi- 
dence.    People  V.  Carkhuflf,  24  Cal.  640. 

376.  A.  made  an  affidavit  before  a  justice 
that  B.  had  assaulted  and  wounded  him,  and 
on  the  same  day  gave  his  deposition  upon 
the  same  charge  before  magistrates  in  the 
absence  of  the  accused.  Afterward  A.  died. 
On  the  trial  of  B.  for  the  murder,  it  was 
held  that  the  affidavit  and  deposition  could 
not  be  read  in  evidence  by  the  prosecution. 
Collier  v.  State,  8  Eng.  G76. 

377.  The  declarations  of  the  deceased, 
that  he  had  no  money,  made  several  weeks 
before  the  murder,  are  not  competent  evi- 
dence.    Kennedy  v.  People,  39  N.  Y.  245. 

378.  Threats  of  deceased.  Threats  made 
by  the  deceased  a  short  time  before  the 
homicide,  showing  an  angry  and  revengeful 
spirit  toward  the  prisoner,  and  a  determina- 
tion to  do  him  violence,  which  were  com- 
municated to  the  prisoner  before  the  homi- 
cide, may  be  given  in  evidence  for  him. 
Dupree  v.  State,  33  Ala.  380.  Proof  of  such 
threats  made  by  the  deceased  the  day  prior 
to  and  down  to  the  time  of  the  homicide  is 


admissible  as  part  of  the  res  gestm.     State  v. 
Keene,  50  Mo.  357. 

379.  Evidence  that  the  defendant  had 
prosecuted  the  deceased  for  embezzlement, 
and  that  in  consequence  the  deceased  had 
threatened  to  kill  him,  is  admissible  in  con- 
nection with  other  circumstances  to  show 
that  the  defendant  was  in  fear  of  his  life 
from  the  deceased,  and  that  the  killing  was 
in  self-defense.     Monroe  v.  State,  5  Ga.  85. 

380.  On  a  trial  for  murder,  threats  of  per- 
sonal violence  made  by  the  deceased,  and 
not  communicated  to  the  prisoner,  when 
connected  with  the  main  fact,  are  admissible 
on  the  question  as  to  which  was  the  aggres- 
sor.    Burns  v.  State,  49  Ala.  379. 

381.  On  the  trial  of  an  indictment  for 
murder,  threats  made  by  the  deceased 
against  the  accused,  shortly  previous  to  the 
homicide,  are  admissible  in  evidence  as  part 
of  the  res  gestce,  as  tending  to  explain  the 
conduct  and  motives  of  the  deceased, 
although  such  threats  were  not  communi- 
cated to  the  defendant.  Pitman  v.  State, 
22  Ark.  354. 

382.  On  a  trial  for  murder  committed  in* 
an  affray,  it  it  competent,  for  the  purpose  of 
characterizing  the  conduct  of  the  deceased 
toward  the  accused  at  the  time  of  their 
meeting,  to  prove  that  the  deceased  had 
made  threats  against  the  accused,  although 
such  threats  did  not  come  to  the  knowledge 
of  the  latter  until  after  the  homicide.  Camp 
bell  V.  People,  16  111.  17. 

383.  Where,  on  a  trial  for  murder,  evi- 
dence had  been  given  making  it  a  question 
for  the  jury,  whether  the  case  was  one  of 
excusable  homicide,  on  the  ground  that  the 
act  was  perpetrated  by  the  accused  in  de- 
fending himself  against  an  attempt  by  the 
deceased  to  kill  or  inflict  some  great  bodily 
injury  upon  him,  it  was  held  that  violent 
threats  made  by  the  deceased  against  the 
accused  shortly  before  the  occurrence  were 
admissible  in  evidence,  although  such 
threats  were  not  communicated  to  him. 
Stokes  V.  People,  53  N.  Y.  164. 

384.  On  a  trial  for  murder,  it  is  competent 
to  prove  that  a  week  before  the  homicide 
the  deceased  threatened  to  kill  the  defend- 
ant, which  threats  were  not  communicated 


t 


t 


HOMICIDE. 


291 


Murder. 


Declarations  of  Person  Killed. 


to  him,  it  being  already  in  proof  that  the 
defendant  was  put  in  fear  of  the  deceased  on 
that  occasion,  and  had  left  his  place  of  busi- 
ness to  avoid  an  attack  of  which  he  was  in 
imminent  peril  at  the  time  of  the  killing. 
State  V.  Dodson,  4  Oregon,  64. 

385.  Where,  on  the  trial  of  an  indictment 
for  murder,  a  witness  for  the  defendant  had 
testified  that  the  deceased,  on  the  night  of 
the  homicide,  had  a  bowie  knife,  which  the 
prosecution  denied,  it  was  held  that  the  fact 
that  the  deceased  had  such  a  knife,  was 
proper  evidence  to  go  to  the  jury,  and  that 
the  deceased  made  threats  against  the  life 
of  the  defendant,  without  reference  to 
whether  the  threats  had  or  had  not  been 
communicated  to  the  defendant.  Holler  v. 
State,  37  Ind.  57 ;  see  Cluck  v.  State,  40  lb. 
263. 

386.  Where,  on  a  trial  for  murder,  the 
question  was,  which  of  the  parties  assaulted 
the  other,  the  defendant  contending  that 
the  deceased  was  the  aggressor  in  the  fatal 
rencounter,  and  had  placed  the  defendant 
in  danger  of  his  life,  from  which  peril  he 
could  only  extricate  himself  by  killing  his 
assailant,  it  was  held  that  the  declarations 
of  the  deceased  at  the  time  of  borrowing  a 
pistol,  which  was  found  in  his  possession 
after  the  homicide,  were  admissible  in  evi- 
dence as  a  part  of  the  res  gestae,  without  prov- 
ing that  the  defendant  had  knowledge  of 
them.  People  v.  Arnold,  15  Cal.  476;  and 
see  People  v.  Scoggins,  37  Cal.  676. 

387.  Where,  on  a  trial  for  murder,  the  de- 
fense relied  on  is  an  insane  delusion  on  the 
part  of  the  prisoner,  that  the  deceased  in- 
tended to  injure  him,  the  declarations  of  the 
deceased,  though  made  in  the  prisoner's  ab- 
sence, are  admissible  to  show  his  state  of 
mind  toward  the  prisoner  at  that  time,  as 
tending  to  show  some  ground  for  the  pris- 
oner's feeling  toward  him.  Com.  v.  Wil- 
■son,  1  Gra}%  337. 

388.  Where,  on  a  trial  for  murder,  it  was 
proved  that  the  deceased  had  threatened  to 
kill  the  accused,  and  that  the  threats  were 
communicated  to  the  prisoner,  it  was  held 
competent  for  him  to  prove  other  threats 
which  were  not  communicated,  as  tending 
to  confirm  the  proof  of  the  other  threats. 


and  to  show  that  the  deceased  intended  to 
attack  the  prisoner.  Cornelius  v.  Com.  15 
B.  Mon.  539. 

389.  On  the  trial  of  an  indictment  for 
murder  in  an  afiray,  it  is  not  competent  for 
the  defendant  to  prove  that  the  deceased, 
recently  before  the  affray,  threatened  to 
shoot  him.     McMillan  v.  State,  13  Mo.  30. 

390.  In  case  of  conspiracy.  When,  on 
a  trial  for  murder,  a  conspiracy  is  proved  to 
have  existed  between  the  deceased  and 
others  to  co-operate  in  any  hostile  meeting 
between  the  prisoner  and  the  deceased,  the 
declarations  of  any  of  the  party,  with  refer- 
ence to  the  hostile  meeting,  are  admissible 
in  evidence.    Cornelius  v.  Com.  15  B.Mon.539. 

391.  On  the  trial  of  a  keeper  of  a  house 
of  ill-fame,  for  murder  committed  in  resist- 
ing the  attempt  of  the  deceased  and  others 
to  gain  admittance  by  violence,  it  was  held 
competent  to  prove  that  threats  had  been 
made  a  week  previous  to  the  assault  by  the 
persons  who  had  broken  into  the  house,  that 
they  would  return  some  other  night  and 
break  in  again.  People  v.  Rector,  19  Wend. 
569. 

392.  Must  have  been  overt  act.  Appre- 
hension from  a  previous  threat,  followed  by 
no  overt  act,  will  not  justify  a  homicide. 
Therefore,  on  a  trial  for  murder,  evidence  of 
what  the  deceased  had  said  about  the  pris- 
oner three  weeks  before  the  killing,  in  order 
to  show,  with  other  facts,  whether  at  the 
time  of  the  occurrence  the  prisoner  was 
justified  in  apprehending  danger  from  the 
deceased,  is  not  admissible.  Real  v.  People, 
55  Barb.  551 ;  affi'd  42  N.  Y.  270. 

393.  However  desperate  and  abandoned 
the  character  of  the  deceased  may  have  been, 
and  however  numerous  and  violent  the 
threats  he  may  have  made,  he  does  not  for- 
feit his  claim  to  life,  unless  by  some  act  at 
the  time  of  the  killing,  he  made  it  appear 
that  he  was  about  to  put  his  threats  into 
execution.     Pritchett  v.  State,  22  Ala.  39. 

394.  Previous  bad  treatment  will  not  jus- 
tify a  homicide;  therefore,  evidence  that  the 
deceased  previously  clubbed  the  prisoner 
inhumanly  when  nearly  insensible  from  in- 
toxication, to  justify  the  aj)prehension  of 
similar  treatment  at  the  time  of  the  homi- 


292 


HOMICIDE. 


Murder. 


Declarations  of  Person  Killed. 


Dying  Declarations. 


cide,  is  not  admissible.     Real  v.  People,  55 
Barb.  551;  42  N.  Y.  270. 

395.  In  corroboration.  Where,  on  a  trial 
for  murder,  the  declarations  of  the  deceased 
have  been  proved,  and  an  attempt  has  been 
made  by  the  defense  to  destroy  the  effect  of 
such  declarations,  by  showing  the  bad  char- 
acter of  the  deceased,  the  prosecution,  in 
order  to  corroborate  the  evidence,  may  show 
that  the  deceased  made  other  declarations 
to  the  same  effect,  a  few  moments  after  he 
was  wounded,  though  it  did  not  appear  that 
he  was  then  under  the  apprehension  of  im- 
mediate death.  State  v.  Thompson,  1  Jones, 
274. 

396.  In  rebuttal.  Proof,  on  a  trial  for 
murder,  of  the  acts  and  declarations  of  the 
deceased  for  several  months  jjrevious  to  the 
homicide,  for  the  purpose  of  proving  that 
she  was  in  a  cheerful  and  healthful  mental 
condition,  and  not  pi'edisposed  to  suicide, 
is  only  proper  as  rebutting  evidence  after 
the  testimony  for  the  defense  is  closed. 
Jumpertz  v.  Peoj^le,  21  111.  375. 

397.  How  to  be  regarded  by  jury. 
"Where  during  the  quarrel  immediately  pre- 
ceding the  fight  between  the  prisoner  and 
the  deceased,  the  latter  said  that  the  former 
had  for  some  time  been  offended  with  him, 
giving  reasons  for  the  assertion,  but  which 
was  denied  at  the  time  by  the  prisoner;  it  is 
the  duty  of  the  court  to  charge  the  jury, 
that  the  statement  of  the  deceased  is  no  evi- 
dence of  its  truthfulness,  and  should  only  be 
regarded  by  them  as  part  of  the  res  gestcs, 
to  show  under  what  circumstances  the  fight 
between  the  parties  began.  Haile  v.  State, 
1  Swan,  248. 

(h)  Dying  declarations. 

398.  General  grounds  of  admissibility. 
By  the  common  law,  the  declarations  of  a 
person  mortally  wounded,  made  under  the 
apprehension  of  death,  are  admissible  in 
evidence  on  a  trial  for  murder.  Woodside 
v.  State,  2  How.  655;  Campbell  v.  State.  11 
Ga.  353;  Nelson  v.  State,  7  Humph.  542; 
Smith  V.  State,  9  lb.  9 ;  Hill  v.  Com.  2  Graft. 
594  ;  Moore  v.  State,  12  Ala.  7G4. 

399.  Such  declarations  are  only  admissible 
in  cases  of  homicide,  and  are  restricted  to 


the  act  of  killing,  and  the  circumstances  im- 
mediately attending  it,  and  forming  part  of 
the  res  gestce.  Leiber  v.  Com.  9  Bush,  11; 
Wright  V.  State,  41  Texas,  246. 

400.  Dying  declarations  are  only  admis- 
sible where  the  death  of  the  person  killed 
is  the  subject  of  the  inquiry,  and  the  circum- 
stances of  the  death  are  the  subject  of  the 
dying  declarations.  People  v.  Davis,  56  N, 
Y.  95 ;  Lambert  v.  State,  23  Miss.  323. 

401.  In  case  of  homicide,  declarations  by 
one  mortally  wounded,  and  who  is  conscious 
of  his  condition,  are  admissible  in  evidence, 
not  only  as  to  the  perpetrator,  but  also  as  to 
the  facts  that  attended  the  transaction. 
Campbell  v.  State,  supra;  People  v.  Knapp, 
26  Mich.  112;  s.  c.  1  Green's  Crim.  Eeps. 
252;  approving  Hurd  v.  People,  25  Mich. 
405. 

402.  The  declaration  of  a  person  badly 
wounded,  that  the  defendant  had  stabbed 
her,  made  immediately  after  the  transaction, 
though  with  such  an  interval  of  time  as  to 
permit  her  to  go  from  her  own  room  up 
stairs,  into  another  room,  is  admissible  in 
evidence  after  her  death,  as  a  part  of  the 
res  gestce.     Com.  v.  McPike,  3  Cush.  181. 

403.  Dying  declarations  as  to  the  previous 
conduct  of  the  prisoner  are  admissible. 
State  V.  Terrell,  12  Eich.  321.  But  they 
must  be  confined  to  what  occurred  in  im- 
mediate connection  with  the  offense  and 
forming  a  part  of  the  res  gestce.  State  v. 
Shelton,  2  Jones,  360. 

404.  Whether  the  statements  of  the  de- 
ceased as  to  previous  diflaculties  and  threats 
of  the  prisoner  can  be  received — query.  Dec- 
larations that  the  prisoner's  boys  followed 
the  deceased  and  clubbed  him,  immediately 
preceding  the  encounter,  which  was  the  cause 
of  his  return  to  his  house  where  the  fatal 
blow  was  struck,  being  a  part  of  the  res 
gestm  are  admissible.  But  declarations  that 
the  prisoner  had  often  threatened  to  kill  the 
deceased,  made  after  the  deceased  had  relat- 
ed the  circumstances  of  the  stabbing,  and 
entirely  disconnected  from  it,  it  not  appear- 
ing that  the  threats  were  made  to  the  de- 
ceased or  to  others  who  told  him,  are  not 
admissible.  Hackett  v.  People,  54  Barb. 
370. 


HOMICIDE. 


293 


Murder, 


Dying  Declarations. 


405.  The  prosecution  has  a  right  to  prove 
the  dying  declarations,  notwithstanding 
there  may  be  other  witnesses  by  whom  the 
same  facts  might  be  shown  which  are 
sought  to  be  established  by  the  dying  decla- 
rations.    People  V.  Green,  1  Parker,  11. 

406.  Substance  of  declaration  suffi- 
cient. The  substance  of  dying  declarations 
may  be  proved.  Ward  v.  State,  8  Blackf. 
101.  It  is  not  necessary  that  the  declarant 
should  state  everything  that  constituted  the 
res  gestm  of  the  subject  of  his  communication ; 
but  that  his  statement  of  any  given  fact 
should  be  a  full  expression  of  all  he  intended 
to  say  as  to  such  fact.  State  v.  Patterson, 
45  Vt.  308.  The  fact  that  the  witness  lost 
the  writing  containing  the  declarations,  has 
no  bearing  upon  their  admissilnlity,  but  only 
as  to  the  weight  which  ought  to  be  accorded 
to  his  recollection.  lb. ;  s.  c.  1  Green's  Crim. 
Reps.  490. 

407.  Where  the  deceased  being  asked  who 
shot  him,  replied  "  the  prisoner,"  it  was  held 
that  the  declaration  could  not  be  excluded 
because  from  weakness  and  exhaustion,  he 
was  not  able  to  answer  another  question  put 
to  him  immediately  afterward.  McLean  v. 
State,  16  Ala.  673. 

408.  But  where  it  appeared  that  the  dec- 
larations were  intended  by  the  deceased  to 
be  connected  with,  and  qualified  by  other 
statements,  and  that  before  the  narrative  was 
completed  it  was  interrupted,  and  left  un- 
finished, it  was  held  that  such  partial  decla- 
rations were  not  admissible  in  evidence. 
Bass'  Case,  3  Leigh,  786. 

409.  Where  dying  declarations  were  re- 
peated by  a  person  who  heard  them  to  a 
justice  of  the  peace,  by  whom  they  were 
reduced  to  writing  and  afterward  approved 
and  sworn  to  by  the  deceased,  but  it  ajj- 
peared  that  it  only  contained  a  portion  of 
what  the  deceased  said,  and  that  material 
statements  made  by  him  were  designedly 
omitted,  it  was  held  that  the  writing  was 
not  admissible  in  evidence.  Bronn  v.  State, 
32  Miss.  433. 

410.  Opinions  not  admissible.  The  mere 
expression  of  opinion  by  the  deceased,  made 
when  in  extremis,  is  not  admissible  in  evi- 
dence.    Binns  v.  State,  40  Ind.  311 ;  Whit- 


ley v.  State,  38  Ga.  50 ;    State  v.  Williams, 
67  N.  C.  13. 

411.  On  a  trial  for  murder  by  poisoning, 
it  was  proved  that  the  deceased  stated  that 
the  defendant  and  B.  were  the  cause  of  all 
her  suflferings;  and  again  in  answer  to  an 
inquiry  of  the  cause,  that  she  suspected  it 
was  C.  (referring  to  the  defendant),  and  B. 
Held  that  neither  of  these  statements  was 
competent  evidence  as  a  dying  declaration. 
Shaw  V.  People,  5  N.  Y.  Supm.  N.  S.  439. 

412.  On  a  trial  for  murder,  a  witness  was 
asked  whether  the  deceased,  after  he  de- 
clared he  was  dying,  and  while  dying,  made 
any  declaration  as  to  how  he  received  the 
wounds,  and  by  whom  they  were  inflicted. 
The  witness  answered  that  the  deceased 
said  it  "  was  hard  to  die  by  the  hand  of 
another  and  leave  his  family."  Held  error 
to  admit  this  declaration  in  evidence. 
Crookham  v.  State,  5  West  Va.  510. 

413.  But  on  a  trial  for  murder,  it  appeared 
that  the  deceased  was  shot  at  night  while 
riding  with  a  companion,  who  saw  the  flash 
of  the  gun  but  not  the  defendant.  The 
deceased,  about  fifteen  minutes  before  he 
died,  stated  that  the  defendant  was  the  man 
who  had  killed  him.  Held  admissible  as  a 
dying  declaration,  and  that  it  was  for  the 
jury  to  say  whether  the  statement  was  made 
by  the  deceased  as  a  fact  known  to  him,  or 
only  as  his  opinion.  State  v.  Quick,  15 
Rich.  343. 

414.  And  where  the  deceased,  in  making 
his  dying  declaration,  stated  that  the  "  fatal 
wound  was  given  without  any  provocation 
on  his  part,"  it  was  held  not  incompetent  as 
matter  of  opinion.  Wroe  v.  State,  20  Ohio, 
N.  S.  460. 

415.  On  a  trial  for  murder,  the  dying 
declarations  of  the  deceased  as  to  the  state 
of  feeling  existing  between  him  and  the 
prisoner  are  not  competent  evidence  for  the 
prosecution.     Ben  v.  State,  37  Ala.  103. 

416.  Where  on  a  trial  for  murder,  it  ap- 
peared that  the  homicide  occurred  in  the 
night,  and  was  committed  by  some  unknown 
person,  it  was  held  that  the  dying  declara- 
tions of  the  deceased  that  the  prisoner,  who 
was  one  of  his  employer's  slaves  "was  the 
only  slave  on  the  place  who  was  at  enmity 


294 


HOMICIDE. 


Murder. 


Dying  Declarations. 


with  him,"  were  not  admissible  in  evidence 
against  the  prisoner.  Mose  v.  State,  35  Ala. 
421. 

417.  On  a  trial  for  murder,  dying  declara- 
tions were  ofiered  in  evidence,  and  the  wit- 
ness, who  testified  to  the  precise  words  used, 
was  asked  whether  the  deceased  did  not  so 
express  himself  as  to  convey  the  idea  that 
it  was  a  mere  opinion.  Held  that  as  it  was 
for  the  jury  to  judge  of  the  import  of  the 
language  employed,  the  question  was  im- 
proper. Nelms  V.  State,  13  Smed.  &  Marsh. 
500. 

418.  "Who  competent  to  make.  If  the 
declarant  would  not  have  been  permitted  to 
testify  had  he  survived,  either  because  he 
was  too  young  to  comprehend  the  nature  of 
an  oath,  or  was  disqualified  by  infancy  or 
imbecility  of  mind,  his  dying  declarations 
are  not  admissible.  Lambert  v.  State,  28 
Miss.  323 ;  State  v.  Williams,  67  N.  C.  12. 
"When  admitted,  they  are  to  be  received 
with  the  same  degree  of  credit  that  the  tes- 
timony of  the  deceased  would  have  been  if 
examined  on  oath.  Green  v.  State,  13  Mo. 
382. 

419.  In  New  Jersey,  it  was  held  that 
dying  declarations  made  by  a  person  who 
did  not  believe  in  a  God  and  in  a  future 
state  of  rewards  and  punishments  were  not 
admissible  in  evidence.  Donnelly  v.  State, 
2  Dutch.  4fi3. 

420.  Must  have  been  made  in  the  belief 
of  approaching  and  inevitable  death.  It 
is  error  to  admit  dying  declarations  in  evi- 
dence, without  first  ascertaining  that  the 
deceased  was  conscious  of  his  condition 
before  making  them.  Montgomery  v.  State, 
11  Ohio,  424;  People  v.  Williams,  3  Parker, 
84;  Dixon  v.  State,  13  Fla.  636;  s.  c.  1 
Green's  Crim.  Reps.  687.  Written  declara- 
tions were  held  inadmissible,  where  there 
was  nothing  to  show  except  from  the  writ- 
ing, that  the  deceased  thought  he  was  in 
articulo  mortis.  State  v.  Medlicott,  9  Kan- 
sas, 257 ;  s.  c.  1  Green's  Crim.  Reps.  227. 

421.  To  make  the  statement  of  a  deceased 
person  evidence  as  a  dying  declaration,  it  is 
not  necessary  that  when  he  made  it  he  was 
in  the  very  act  of  dying.  It  is  sufficient  if 
he  was  under  the  apprehension  of  approach- 


ing dissolution.  State  v.Tilghman,  Hired ► 
513.  On  the  trial  of  an  indictment  for  man- 
slaughter, a  statement  made  by  the  deceased 
under  a  sense  of  impending  death  was  held 
admissible  as  a  dying  declaration,  though 
he  lived  seventeen  days  afterward.  Com.  v. 
Cooper,  5  Allen,  495. 

422.  Although  to  render  dying  declara- 
tions admissible,  it  must  appear  that  they 
were  made  under  a  sense  of  impending 
death,  it  is  not  necessary  that  they  be  stated 
at  the  time  to  be  so  made,  it  is  enough,  if  it 
satisfactorily  ap^Dcars  in  any  mode,  that 
such  was  the  case.  Daniel  v.  State,  8  Smed. . 
&  Marsh.  401 ;  Morgan  v.  State,  31  Ind.  193. 

423.  Where  the  deceased  when  first  dis- 
covered, after  he  was  mortally  wounded,  sa'd  ' 
"  Oh,  my  people,"  but  nothing  more,  it 
was  held  not  sufficient  to  show  the  appre- 
hension of  immediate  death.  Lewis  v. 
State,  9  Smed.  &  Marsh.  115.  And  where^ 
on  a  trial  for  manslaughter,  the  judge  ruled 
that  if  the  deceased  believed  his  end  was 
near  at  hand,  his  dying  declarations  were 
admissible,  although  he  might  think  there 
was  a  slight  chance  of  life,  it  was  held  error. 
Com.  V.  Roberts,  108  Mass.  296. 

424.  On  a  trial  for  murder,  a  statement  of 
deceased  was  ofiered  in  evidence  as  his 
dying  declaration,  which  was  taken  down 
and  sworn  to  the  day  before  his  death,  but 
not  signed  by  him,  he  being  too  far  gone  to 
write  his  name.  The  language  of  the  de- 
ceased was  not  taken  down,  but  only  the 
substance;  and  when  read  over  to  him  he 
said  it  was  substantially  correct.  Upon  his 
inquiry  of  the  attending  surgeon  whether 
there  was  any  hope,  he  had  been  told  that  he 
could  not  recover.  The  deceased  Avas  under 
the  influence  of  morphine ;  and  to  some  of 
the  questions  he  nodded  assent,  and  to 
others  gave  answers.  At  times  it  became 
necessary  to  rouse  him.  He  was  visited  by 
his  spiritual  adviser,  and  partook  of  the  last 
rites  of  the  church  before  the  declarations 
were  made,  and  seemed  to  have  lost  all  ex- 
pectation of  recovery.  Held,  that  although 
the  declarations  were  not  entitled  to  much 
weight,  yet  that  they  were  admissible  in  evi- 
dence.    Murphy  v.  People,  37  111.  447. 

425.  Where  the  declarant  said  "she  knew 


^ 


> 


HOMICIDE. 


205 


Murder. 


Dying  Declarations. 


<=S 


she  should  die,"  liut  added  that  "if  she 
lived  to  get  well  she  would  never  go  to  C.'s 
again,"  it  was  held  that  as  the  latter  ex- 
pression showed  the  hope,  if  not  the  ex- 
pectation of  recovery,  her  declarations  were 
not  admissible.  State  v.  Center,  35  Vt.  378. 
c3  426.  If  the  declaration  was  competent 
when  uttered,  a  subsequent  hope  of  recov- 
ery will  not  render  it  incompetent.  State 
V.  Tilghraan,  11  Ired.  513;  Dunn  v.  State,  2 
Ark.  229.  On  a  trial  for  murder  it  appeared 
that  the  deceased  made  a  statement  relative 
to  the  occurrence,  on  the  8th  of  January, 
about  two  hours  after  he  received  his 
wound?,  he  at  the  time  having  no  expecta- 
tion of  recovery,  but  that  he  survived  ten 
days  longer,  during  which  he  had  some 
hope  that  he  might  live.  Held  that  his 
statement  was  admisbible  in  evidence  as  his 
dying  declaration.  Swisher  v.  Com.  26 
Graft.  9G3. 

427.  To  render  dying  declarations  admis- 
sible, it  is  not  necessary  to  prove  the  exist- 
ence of  a  belief  of  approaching  dissolution 
by  any  express  statement  of  the  declarant  to 
that  efiect,  but  it  may  be  inferred  from  the 
tenor  of  his  conversation,  the  nature  of  his 
sufferings,  and  his  whole  demeanor.  People 
V.  Williams,  3  Parker,  84 ;  People  v.  San- 
chez, 24  Cal.  17;  Com.  v.  Murray,  2  Ashm. 
41;  Johnson  v.  State,  47  Ala.  9;  Hill  v. 
Com.  2  Gratt.  594;  McLean  v.  State,  16 
Ala.  672. 

428.  Where  the  deceased,  being  mortally 
wounded,  and  verj'  weak  from  the  loss  of 
blood,  said  that  he  must  die,  his  account,  in 
a  conversation  of  short  duration,  as  to  the 
manner  in  which  the  conflict  began  and  was 
continued  between  him  and  the  prisoner, 
was  helrl  admissible  as  a  dying  declaration, 
although  the  witness  could  not  say  whether 
the  opinion  expressed  by  the  deceased,  that 
he  must  die,  was  before  or  after  his  narra- 
tion of  the  facts.  State  v.  Peace,  1  Jones, 
251. 

(,  429.  The  deceased  was  poisoned  on  Sun- 
day, and  from  that  time  until  Tuesday 
evening,  when  she  died,  was  in  great  agony. 
At  intervals  during  her  illness,  she  used 
such  language  as  the  following:  "I  cannot 
stay  here;  I   must  go;  good  people,  I  am 


gone ;"  and  her  physician  considered  her  at 
the  point  of  death  until  she  died.  Tuesday 
forenoon  she  asked  the  doctor  if  he  could 
help  her,  to  which  he  replied  that  he 
thought  he  could.  HM,  that  her  dying 
declarations  were  admissible  in  evidence. 
Oliver  v.  State,  17  Ala.  587. 

430.  On  a  trial  for  murder,  the  statement 
of  the  deceased  having  been  offered  in  evi- 
dence as  his  dying  declaration,  it  was  ob- 
jected that  he  told  P.  he  did  not  believe  the 
wound  would  kill  him.  The  father  of  the 
deceased  thereupon  testified  that  he  was  with 
his  son  about  an  hour  after  he  had  made  the 
remark  to  P. ;  that  deceased  said  that  al- 
though he  had  told  P.  he  did  not  think  he 
would  die,  yet  he  believed  he  would  die, 
and  believed  so  when  he  made  the  statement 
to  P.,  but  was  induced  to  tell  P.  he  did  not 
think  he  would,  because  a  man  who  had 
been  shot  in  the  neighborhood,  and  had 
said  he  would  die,  got  well  and  was  dis- 
graced. Held  that  the  statement  of  the  de- 
ceased was  admissible  in  evidence.  Young 
V.  Com.  6  Bush,  Ky.  312. 

431.  On  the  same  day  the  mortal  wound 
was  received,  an  attendant  told  the  de- 
ceased that  he  thought  his  deposition  ought 
to  be  taken,  as  he  must  inevitably  die  before 
morning.  The  deceased  replied  he  thought 
so  to.  Afterward,  the  deceased  exclaimed, 
"  Oh  Lord,  I  shall  die  soon  !"  His  declara- 
tions were  written  out,  read  over  to  him 
twice,  and  signed  by  him.  The  physician, 
the  evening  before,  had  held  out  to  the  de- 
ceased some  hope  of  recovery,  but  told  him 
his  chance  was  small.  The  deceased  lived 
some  ten  days  after  making  the  declaration. 

Held  that  the  declarations  were  admissible.  * 

McDaniel  v.  State,  8  Smed.  &  Marsh.  401.  "{ 

432.  Where,  in  a  case  of  murder  by  poison- 
ing, the  deceased,  on  the  third  day  of  her 
illness,  said  to  her  nurse  that  she  expected 
to  die  because  she  was  poisoned,  and  after- 
ward made  a  similar  declaration,  and  at  no 
time  supposed  she  would  get  well,  her  dec- 
larations made  after  the  third  day  of  her  ill- 
ness, down  to  her  death,  on  the  twelfth  day, 
were  received  in  evidence,  although  it  did 
not  appear  that  eitlier  of  her  attending  phy- 
sicians had  told  her  she  was  going  to  die, 


296 


HOMICIDE. 


Murder. 


Dying  Declarations. 


aud  one  of  them  bad  spoken  lo  her  en- 
couragingly of  her  prospect  of  recovery. 
People  V.  Grunzig,  1  Parker,  299. 

433.  Where  by  direction  of  the  attending 
physician,  and  in  bis  presence,  W.  told  the 
deceased  the  day  before  her  death,  that  she 
could  not  live,  whereupon  she  asked  tbe 
physician  to  hear  a  communication  she 
wished  to  make,  and  proceeded  to  give  an 
account  of  tbe  conduct  of  the  accused  dur- 
ing her  illness,  tending  to  show  that  he  had 
several  times  during  her  illness  administered 
arsenic  to  her — it  was  held  that  such  com- 
munication was  admissible  as  a  dying  decla- 
ration.    People  V.  Green,  1  Parker,  11. 

434.  Declarations  of  husband.  The  dec- 
larations of  a  husband  are  admissible  on 
the  trial  of  his  wife  for  the  murder.  People 
V.  Green,  sti2'>ra. 

435.  Declarations  of  other  person  killed 
at  the  same  time.  Where  another  person 
was  mortally  wounded  by  the  accused  at  the 
same  time  and  place  that  he  perpetrated  the 
killing  for  which  he  is  on  trial,  the  dying- 
declaration  of  such  other  person  is  admis- 
sible in  evidence.  State  v.  Wilson,  23  La. 
An^-SiSB. 

436.  Where  A.,  B.  and  C.  are  murdered 
with  poison  by  D.,  on  the  trial  of  D.  for  the 
murder  of  A.  the  dying  declarations  of  B. 
are  admissible  in  evidence.  State  v.  Terrell, 
12  Rich.  B21. 

437.  But,  on  a  trial  for  murder,  it  was 
proved  that  the  body  of  the  deceased  was 
found,  with  marks  of  violence  upon  it,  in 
the  highway,  about  three  hundred  yards 
from  his  house ;  that  his  wife  was  found  at 
the  same  time  wounded  and  in  a  dying  con- 
dition, and  there  was  evidence  tending  to 
show  that  the  house  had  been  robbed.  Held 
that  the  dying  declarations  of  the  wife  were 
not  admissible  as  evidence  in  behalf  of  the 
prosecution.  Brown  v.  Com.  73  Penu.  St. 
321 ;  76  lb.  319;  s.  c.  2  Green's  Grim.  Reps. 
511. 

438.  Declarations  of  codafendant. 
Where  some  of  several  charged  with  crime 
die  before  trial,  aud  make  dying  declara- 
tions, such  declarations  are  not  admissible 
in  evidence  on  behalf  of  the  others.  Resp. 
V.  Langcake,  1  Yeates,  415. 


439.  How  taken.  Dying  declarations  are 
governed  by  the  same  rules  as  the  testimony 
of  a  witness  sworn  in  the  case,  except  as  to 
the  manner  of  conducting  the  examination, 
which  may  be  by  leading  questions,  and 
even  earnest  and  pressing  solicitation,  al- 
though by  such  a  course  their  credibility  is 
impaired.     People  v.  Sanchez,  24  Cal.  17. 

440.  Where  a  female  who  was  mortally 
wounded  in  the  head  and  unable  to  speak, 
but  who  was  conscious  that  she  could  not 
survive  the  injury,  was  asked  if  the  fatal 
blows  were  dealt  by  C,  and  told,  if  he  did, 
to  squeeze  the  hand  of  her  interrogator, 
which  Avas  accordingly  done  by  her,  it  was 
held  admissible  as  a  dying  declaration. 
Com.  V.  Casey,  11  Gush.  417. 

441.  On  a  trial  for  murder  it  appeared  that 
the  deceased  and  the  prisoner  both  under- 
stood the  English  language.  The  dying 
declaration  of  the  deceased  that  the  prisoner 
shot  him  was  proved  to  have  been  made  in 
English,  in  reply  to  a  question  addressed  to 
him  in  that  language,  and  the  answer  of  the 
prisoner,  given  in  Chinese,  was  sworn  to 
by  a  Chinaman  who  understood  both 
languages.  Held  proper.  People  v.  Ah 
Wee,  48  Cal.  236. 

442.  A  statement  was  written  by  an  at- 
torney during  the  night  on  which  the  de- 
ceased died,  the  attorney  putting  questions 
to  him  which  he  made  an  effort  to  answer, 
but  could  not.  The  sick  man's  friends  then 
"  explained  the  questions  to  him,  and  made 
the  answers,  to  which  he  assented  only  by 
nodding  his  head."  The  statement,  consist- 
ing of  the  answers  thus  made,  was  then 
''  read  over  to  him  by  the  attorney,  slowly 
and  distinctly,  and  he  signified  his  assent 
thereto  by  nodding  his  head."  He  spoke 
but  a  few  words  afterwards,  and  had  fre- 
quently to  be  aroused,  and  seemed,  while 
the  statement  was  being  read  to  him,  to  be 
in  a  stupor.  Held  that  the  statement  was 
not  admissible  as  a  dying  declaration.  Mc- 
Hugh  V.  State,  31  Ala.  317. 

443.  It  is  not  essential  to  the  admissibility 
of  dying  declarations,  when  reduced  to 
writing  and  signed  by  the  deceased,  that 
there  should  be  a  subscribing  witness.     lb. 

444.  Admissibility  of,  how  determined. 


HOMICIDE. 


29' 


Murder. 


Dying  Declarations. 


The  admissibility  of  dying  declarations  is  a 
question  of  law  to  be  determined  by  the 
court.  People  v.  Anderson,  2  Wheeler's 
Crim.  Cas.  390 ;  Smith  v.  State,  9  Humph.  9 ; 
State  V.  Burns,  33  Mo.  483 ;  and  is  subject 
to  review  on  writ  of  error.  Donnelly  v. 
State,  2  Dutch.  463 ;  Lambert  v.  State,  23 
Miss.  323. 

445.  The  court  must  decide  upon  the  ad- 
missibility of  dying  declarations;  and  the 
truth  of  the  facts  put  in  evidence  to  show 
that  the  declarations  were  made  in  view  of 
speedy  death,  is  a  question  exclusively  for 
the  court.     State  v.  Simon,  50  Mo.  370. 

446.  But  where  dying  declarations  are  in- 
consistent with  each  other,  it  is  the  duty  of 
the  jury  to  determine  which,  or  whether 
either,  is  entitled  to  credit.  Moore  v.  State, 
13  Ala.  764. 

447.  Where  the  offer  to  introduce  a  dying 
declaration  shows  a  prima  facie  case  for  its 
admission,  the  evidence  is  received  and  left 
to  the  jury  to  decide  whether  the  deceased 
was  really  in  such  a  condition,  or  used  such 
expressions  as  that  the  apprehension  in  ques- 
tion might  be  inferred.  Com.  v.  Murray,  2 
Ashm.  41;  Com.  v.  Williams,  lb.  69;  Peo- 
ple V.  Green,  1  Parker,  11. 

448.  How  proved.  A  witness  may  detail 
the  substance  of  dying  declarations  when 
he  is  not  able  to  give  the  precise  language. 
Montgomery  v.  State,  1 1  Ohio,  424. 

449.  Where  on  a  trial  for  murder,  the  dy- 
ing declarations  of  the  deceased  are  offered 
in  evidence,  it  is  not  error  to  permit  wit- 
nesses to  state  the  substance  of  what  the  de- 
ceased said  as  to  his  apprehensions  of  death, 
and  to  receive  the  same  through  interpreters 
who  sometimes  differ  in  their  rendition  of 
words  into  Eoglish.  In  such  case,  the  con- 
dition and  state  of  mind  of  the  deceased, 
with  all  attendant  circumstances  are  proper 
for  the  consideration  of  the  jury.  Starkey 
V.  People,  17  111.  17. 

450.  The  fact  that  a  written  memorandum 
of  the  dying  declaration  verified  by  deceased 
was  read  in  evidence  is  no  oI»jection  to  the 
introduction  of  independent  oral  proof  of 
the  same  or  similar  dying  declarations  of  de- 
ceased.    People  v.  Vernon,  35  Cal.  49. 

451.  Although  when   dying  declarations 


have  been  taken  down  in  writing  and  signed 
by  the  deceased,  the  writing  itself  should  be 
produced,  yet  if  the  deceased  made  other 
declarations  at  a  dift'erent  time,  which  were 
not  reduced  to  writing,  they  may  be  proved 
by  parol.     Collier  v.  State,  20  Ark.  36. 

452.  Where  dj-ing  declarations  are  re- 
duced to  writing  and  signed  by  the  party 
making  them,  the  writing,  if  in  existence, 
must  be  i^roduced.  If  the  same  statements 
were  made  both  in  writing  and  orally,  the 
absence  of  the  writing  must  be  accounted 
for  before  evidence  of  the  oral  statement  can 
be  given.  But  if  the  declarations  were  re- 
peated at  different  times,  and  one  of  them 
which  was  reduced  to  writing,  covers  differ- 
ent ground  from  that  comprised  in  the  ver- 
bal statements,  both  may  be  introduced. 
State  V.  Tweedy,  11  Iowa,  350. 

453.  A  copy  of  dying  declarations,  taken 
down  in  writing  by  a  magistrate,  is  admissi- 
ble as  secondary  evidence,  if  the  magistrate 
swear  that  he  cannot  recollect  the  statement 
of  the  deceased.    Beets  v.  State,  Meigs,  106. 

454.  How  discredited.  On  a  trial  for 
murder,  it  is  competent  to  introduce  evi- 
dence of  the  bad  moral  character  of  the  de- 
ceased, for  the  purpose  of  discrediting  his 
dying  declarations.  Nesbit  v.  State,  43  Ga. 
238. 

455.  The  fact  that  a  person  was  a  disbe- 
liever in  a  future  state  of  rewards  and  pun- 
ishments is  admissible  in  evidence  for  the 
purpose  of  discrediting  his  dying  declara- 
tions.    Goodall  V.  State,  1  Oregon,  333. 

456.  On  a  trial  for  murder,  the  dying  dec- 
larations of  the  deceased  having  been  given 
in  evidence,  the  defendant  offered  to  prove 
that  the  deceased,  on  his  examination  before 
the  committing  magistrate,  testified  to  facts 
contradicting  his  dying  declarations,  and 
had  also  made  other  contradictory  declara- 
tions. But  the  court  refused  to  allow  the 
proof.  Held  error.  People  v.  Lawrence,  21 
Cal.  368. 

457.  Where  on  the  trial  of  an  indictment 
for  manslaughter,  the  dying  declarations  of 
the  deceased  were  admitted  in  evidence  to 
))rove  the  identity  of  the  prisoner  with  the 
one  who  committed  the  crime,  it  was  held 
proper  to  show  that  the  deceased  was  in  the 


298 


HOMICIDE. 


Murder. 


Character  of  Person  Killed. 


habit  of  mistaking  persons  with  whom  she 
Avas  well  acquainted  for  others  whom  they 
did  not  resemble.  Com.  v.  Cooper,  5  Allen, 
495. 

(/)   Cliarader  of  person  I'illed. 

458.  Prosecution  cannot  show.  On  a  trial 
for  murder,  it  is  not  competent  for  the  prose- 
cution to  introduce  evidence  in  the  first  in- 
stance, and  jUs  a  part  of  their  case,  to  show 
that  the  deceased  was  a  quiet  and  peaceable 
man.  State  v.  Potter,  13  Kansas,  414;  Ben 
V.  State,  37  Ala.  108. 

459.  Cannot  in  general  be  proved  by 
defense.  As  a  general  rule,  evidence  on  a 
trial  for  miu'der,  that  the  deceased  was  well 
known  to  be  quarrelsome,  vindictive,  and 
dangerous,  is  not  admissible.  But  it  is 
otherwise   when   the   character   of  the   de- 

C ceased  is  a  part  of  the  res  gestae.  Wesley  v. 
State,  37  Miss.  337. 

460.  Where  on  a  trial  for  murder,  there 
is  no  proof  that  the  deceased  assaulted  the 
prisoner,  evidence  cannot  be  given  that  the 
deceased  was  quarrelsome,  vindictive  and 
brutal.  People  v.  Lamb,  54  Barb.  342; 
affi'd  2  Keyes,  360. 

461.  On  a  trial  for  murder,  it  is  not  com- 
petent to  show  that  the  deceased  was  a 
quarrelsome  and  dangerous  man,  unless  there 
is  evidence  which  at  least  raises  a  doubt  as 
to  whether  the  defendant  acted  in  self-de- 
fense ;  and  the  defendant  must  have  believed 
himself  in  danger.     Wise  v.  State,  2  Kansas, 

\       419;  People  v.  Murray,  10  Cal.  309;  People 
\      V.  Edwards,  41  lb.  640.^ 

462.  It  having  been  proved  on  a  trial  for 
murder  that  the  deceased,  just  previous  to 
the  homicide,  assaulted  the  prisoner,  it  was 
held  that  evidence  offered  by  the  latter  that 
the  deceased  was  quarrelsome,  vindictive  and 
cruel,  was  too  remote  to  be  atlmissible. 
Com.  v.  Hilliard,  2  Gray,  294.  See  Com.  v. 
Mead,  12  lb.  167. 

463.  On  the  trial  of  an  overseer  for  the 
murder  of  his  employer,  it  is  not  competent 
for  the  defense  to  show  the  general  temper 
and  deportment  of  the  deceased  towards  his 
overseers  and  tenants.  State  v.  Tilly,  3  Ii'ed. 
424. 

464.  On  a  trial  for  murder,  proof  relative 


to  the  general  character  and  habits  of  the 
deceased  as  to  temper  and  \dolence,  is  inad- 
missible, unless  all  the  evidence  as  to  the 
homicide  is  circumstantial.  State  v.  Bar- 
field,  8  Ired.   344. 

465.  When  defendant  may  show.  Where 
it  is  doubtful  whether  the  homicide  was  ma- 
licious or  in  self-defense,  the  defendant  may 
prove  the  character  of  the  deceased  for 
violence.  Monroe  v.  State,  5  Ga.  85 ;  State 
v.  Hicks,  27  Mo.  588 ;  State  v,  Keene,  50  lb. 
357 ;  State  v.  Bryant,  55  lb.  75. 

466-  The  character  of  the  deceased  as  a 
turbulent  man,  when  it  tends  to  produce  in 
the  mind  of  the  slayer  a  reasonable  belief  of 
imminent  danger,  is  admissible  for  the  de- 
fendant, and  it  may  sometimes  be  looked  to 
in  determining  the  amount  of  provocation. 
Franklin  v.  State,  29  Ala.  14 ;  Pritchett  v. 
State,  22  lb.  39 ;  People  v.  Lamb,  54  Barb. 
342 ;  afli'd  2  Keyes,  360. 

467.  Although  as  a  general  rule,  on  a 
trial  for  homicide,  evidence  of  the  character 
and  habits  of  the  party  killed,  as  to  temper 
and  violence,  is  not  admissible,  yet  when  it 
becomes  necessary  for  the  prisoner  to  ac- 
count for  the  fact  that  he  began  a  sudden 
mutual  affray  with  the  use  of  a  deadly 
weapon,  he  may  show  that  the  deceased  was 
a  powerful,  violent  and  dangerous  man. 
State  V.  Floyd,  6  Jones,  392. 

468.  Evidence  of  the  character  and  habits 
of  the  person  slain  is  proper  only  so  far  as 
they  can  be  sujjposed  to  have  affected  the  in- 
tention of  the  slayer  in  the  fatal  act,  by 
giving  reasonable  apprehensions  of  grievous 
bodily  harm.     State  v.  Smith,  12  Kicb.  430. 

469.  Evidence  of  the  general  bad  character 
of  the  deceased  as  a  turbulent,  blood-thirsty, 
revengeful  man,  is  competent  (although  it 
may  not  be  sufficient  to  reduce  the  offense 
from  murder  to  manslaughter).  Fields  v. 
State,  47  Ala.  603. 

470.  What  may  be  proved.  In  case  of 
homicide,  the  character  of  the  deceased  for 
violence,  as  well  as  his  animosity  toward  the 
defendant,  as  indicated  by  words  and  ac- 
tions then  and  before,  are  proper  matters  for 
the  consideration  of  the  jury  on  the  question 
of  reasonable  apprehension.  Rippy  v.  State, 
2  Head,  217.     Such  apprehensions  may  be 


HOMICIDE. 


201> 


Murder. 


Character  of  Person  Killed.        Character  of  Defendant. 


created  by  particular  acts  reasonably  con- 
nected in  point  of  time  or  occasion  with 
the  fatal  rencounter,  or  by  threats,  as  well  as 
by  the  habits  or  conduct  of  the  deceased. 
State  V.  Smith,  12  Rich.  430. 

471.  The  rule  that  on  a  trial  for  murder, 
the  prisoner  may  give  in  evidence  the  char- 
acter of  the  deceased  for  turbulence  and 
violence,  contemplates  only  his  general 
character  in  this  regard,  and  proof  of  spe- 
cific acts  is  not  admissible  unless  tiiey  are  so 
connected  with  the  homicide  as  to  form  a 
link  in  the  chain  of  circumstances.  Pound 
V.  State,  43  Ga.  88 ;  Eggler  v.  People,  56  N. 
Y.  642. 

472.  The  bad  character  of  the  deceased 
cannot  be  proved  by  showing  previous  mis- 
conduct or  immorality,  having  no  connec- 
tion with  the  case ;  as  that  he  was  an  escaped 
convict  from  the  penitentiary  of  another 
State.     Dupree  v.  State,  33  Ala.  380. 

473.  The  fact  that  the  deceased  went  to 
the  prisoner's  premises  several  weeks  before 
the  homicide,  and  there  sought  a  personal 
difficulty  with  an  employee  of  the  prisoner, 
cannot  be  proved  for  the  defense.  Dupree 
V.  State,  supra. 

474.  On  a  trial  for  murder,  the  defense 
offered  to  prove  that  on  the  evening  of  the 
homicide  the  deceased  drew  his  knife  upon 
a  stranger,  and  would  have  cut  him  had  he 
not  been  prevented ;  also,  that  he  slapped 
the  naked  knife  against  the  cheek  of  another 
man,  at  the  same  time  using  threatening 
language.  The  defendant  was  not  present 
at  the  time,  and  these  acts  were  not  brought 
to  his  linowledge.  Held  that  the  evidence 
was  not  admissible.  People  v.  Henderson, 
28  Oal.  465. 

(,/)    Character  of  defendant. 

475.  Defendant  not  obliged  to  prove. 

On  a  trial  for  murder,  the  evidence  being 
circumstantial,  the  court  charged  the  jury 
that  fair  character  was  important  to  the  pris- 
oner, and  that  they  were  to  inquire  why  it 
was  that  she  had  given  no  evidence  of  her 
general  character.  Ueld  error.  Bodine  v. 
People,  1  Denio,  281. 

476.  When  admissible.  On  a  trial  for 
murder,  the  defendant  may  prove  his  char- 


acter for  peace  and  quiet  to  be  good.  To 
that  extent  his  character  is  involved  in  the 
issue  of  not  guilty.  People  v.  Stewart,  28 
Cal.  395 ;  overruling  People  v.  .Josephs,  7  lb. 
120,  and  People  v.  Lombard,  17  lb.  316: 
Dupree  v.  State,  33  Ala.  380. 

477.  Where,  on  a  trial  for  homicide,  the 
evidence  was  wholly  circumstantial,  the  de- 
fense was  allowed  to  prove  that  the  prisoner 
was  of  a  mild  and  peaceable  temper  and 
habits,  for  the  purpose  of  ascertaining  the 
probable  grade  of  the  offense.  Carroll  v. 
State,  3  Humph.  315. 

478.  By  whom  shown.  One  who  is  ac- 
quainted with  the  prisoner's  character,  and 
who  has  known  him  for  eight  or  ten  years, 
may  testify  as  to  his  character,  although  he 
has  lived  more  than  twenty  miles  from  the 
prisoner's  residence.  Dupree  v.  State,  supra. 

479.  Proof  must  be  confined  to  offense 
charged.  Proof  of  the  general  character  of 
the  prisoner  is  confined  to  the  trait  involved 
in  the  offense  charged.  Therefore,  on  the 
trial  of  a  female  for  murder,  the  mere  facfe 
that  the  evidence  as  introduced  in  behalf  of 
the  prisoner  tended  to  show  that  her  pros- 
pects had  been  injured  by  reason  of  her 
relations  with  the  deceased,  will  not  author- 
ize the  prosecution  to  attack  her  character 
for  chastity.  People  v.  Fair,  43  Cal.  137; 
McDaniel  v.  State,  8  Smed.  &  Marsh.  401  ; 
Beauchamp  v.  State,  8  Blackf.  299. 

480.  On  the  trial  of  an  overseer  for  the 
murder  of  a  slave,  a  witness  fcr  the  prosecu- 
tion was  permitted  to  testify  as  to  the  pris- 
oner's general  habit  as  overseer  in  punishing 
slaves  upon  the  plantation.  Held  improper. 
Bowling  V.  State,  5  Smed.  &  Marsh.  664. 

481.  On  a  trial  for  murder,  the  jury  are  not 
at  liberty  to  take  into  consideration  the 
peaceable  character  of  the  prisoner,  iu  mak- 
ing up  their  minds  as  to  the  intention 
which  induced  the  commission  of  the  offense 
charged.  His  intention  can  only  be  deter- 
mined by  his  acts.  People  v.  Milgate,  5  Cal. 
127. 

482.  Effect  of  proof  of  good  character. 
On  a  trial  for  murder  by  poisoning,  the  fol- 
lowing instruction  was  held  proper:  That 
when  a  prisoner  is  charged  with  the  com- 
mission of  a  crime,  and  evidence   of  good 


500 


HOMICIDE. 


Murder. 


Character  of  Defendant. 


Burden  of  Proof 


character  is  introduced  by  him,  which  is  not 
controverted  by  the  prosecution,  sucli  evi- 
dence is  not  merely  of  value  in  doubtful 
cases,  but  will  of  itself  sometimes  create  a 
doubt  where,  without  it,  none  could  exist; 
and  if  good  character  be  proved  to  the 
satisfaction  of  the  jury,  it  should  produce 
an  acquittal,  even  in  cases  where  the  whole 
evidence  slightly  preponderates  against  the 
accused.  Stephens  v.  Peojile,  4  Parker,  396 ; 
affi'd  19  N.  Y.  549. 

483.  Where,  on  a  trial  for  murder,  the 
prisoner  admits  that  he  committed  the 
homicide,  but  claims  that  he  did  it  while 
defending  himself  against  the  deceased,  who 
was  trying  to  rob  him,  and  the  only  evi- 
dence in  the  case  is  that  the  jirisoner  was 
found  on  a  public  highway,  standing  over 
the  dead  body,  with  a  bloody  weapon  in  his 
hands,  the  previous  good  character  of  the 
prisoner  is  entitled  to  very  great  weight. 
Davis  V.  State,  10  Ga.  105. 

484.  On  a  trial  for  murder,  good  character 
shown  to  belong  to  the  prisoner  cannot  avail 
against  clear  proof  of  guilt,  but  only  where 
doubt  exists  as  to  the  commission  of  the 
crime  and  the  intent.  Wagner  v.  People,  54 
Barb.  367 ;  affi'd  4  K  Y.  Ct.  of  App.  Decis. 
509;  s.  c.  2  Keyes,  684. 

(k)  Burden  of  j^troof. 

485.  When  on  prisoner.  As  a  general 
rule,  all  homicide  is  presumed  to  be  ma- 
licious until  the  contrary  is  shown.  State 
V.  Town,  Wright,  75 ;  Mitchell  v.  State,  5 
Yerg.  340;  McDaniel  v.  State,  8  Smed.  & 
Marsh.  401 ;  People  v.  McLeod,  1  Hill,  377. 
And  every  unlawful  killing  to  be  murder, 
although  the  perpetrator  was  at  the  time 
intoxicated.  State  v.  McFall,  Addis.  255. 
But  in  Pennsylvania  and  Tennessee,  this 
presumption  rises  no  higher  than  murder  in 
the  second  degree,  until  it  is  shown  by  the 
prosecution  to  be  murder  in  the  first  degree. 
Com.  V.  Druum,  58  Peun.  St.  9;  Witt  v. 
State,  6  Cold.  5. 

486.  In  Pennsylvania,  the  following  in- 
struction was  held  proper :  "  When  once  a 
homicide  is  proved,  and  the  prisoner  is 
shown  to  have  committed  the  act,  the 
oflFense  will  amount  to   the  crime  of  volun- 


tary manslaughter;  for  every  killing  of  a 
human  being  is  presumed  to  be  unlawful. 
The  burden  of  proving  the  act  excusable  or 
justifiable  is  on  the  prisoner,"  without  add- 
ing the  qualification  "  unless  the  circum- 
stances excusing  the  act  arise  out  of  the 
evidence  produced  against  him.  Cathcart 
V.  Com.  37  Penu.  St.  108. 

487.  In  Georgia,  when  a  homicide  has  been 
proved,  the  law  presumes  malice,  and  the 
burden  is  upon  the  defendant  to  show  the 
contrary.  Hill  v.  State,  41  Ga.  484 ;  Pound 
V.  State,  42  lb.  88.  In  North  Carolina,  the 
fact  of  the  homicide  being  established  against 
the  prisoner,  it  is  incumbent  on  him  to  show 
matter  of  excuse  or  mitigation  beyond  a 
reasonable  doubt.  State  v.  Johnson,  3  Jones, 
266 ;  State  v.  Willis,  63  N.  C.  26.  In  Mis- 
souri, a  homicide  is  deemed  malicious,  unless 
justified,  excused,  or  palliated;  and  the 
proof  of  justification,  excuse,  or  palliation 
rests  ujwn  the  accused,  unless  evolved  in  the 
testimony  produced  by  the  jDrosecution. 
State  V.  Holme,  54  Mo.  153  ;  contra^  Bower 
V.  State,  5  lb.  364.  In  Indiana,  where  a 
person  unlaAvfuUy  and  purposely  kills  an- 
other, malice,  in  the  absence  of  rebutting 
evidence,  is  presumed  from  the  act.  Expxrte 
Moore,  30  Ind.  197. 

488.  In  California,  where  a  homicide  is 
proved  to  have  been  committed  by  the  ac- 
cused, it  rests  upon  him  to  show  justification, 
excuse,  or  circumstances  of  mitigation ;  and 
this  not  being  done,  the  legal  inference  is 
that  he  has  committed  the  crime  of  murder. 
People  V.  Gibson,  17  Cal.  283 ;  subject  to  the 
qualification  that  where  the  testimony  on  the 
part  of  the  prosecution  leaves  a  doubt  as  to 
the  character  of  the  homicide,  the  benefit  of 
the  doubt  is  to  be  given  to  the  prisoner. 
People  V.  Arnold,  15  Cal.  476. 

489.  But  held  in  an  early  case  in  Califor- 
nia, that  if  on  a  trial  for  murder,  the  jury 
should  find  the  fact  that  the  prisoner  made 
a  felonious  assault  upon  the  deceased  with 
an  unlawful  weapon,  inflicting  a  mortal 
wound  which  produced  instant  death,  and 
that  there  was  some  evidence  tending  to 
prove  that  such  wound  was  given  in  tlie 
heat  of  blood  in  sudden  and  mutual  combat, 
but  that  the  proof  of  such  fact  did  not  pre- 


HOMICIDE. 


301 


Murder. 


Burden  of  Proof. 


ponderate  over  the  proof  against  it,  though 
it  raised  some  doubts  in  their  minds,  the 
matter  of  extenuation  would  not  be  suffi- 
ciently made  out,  and  the  judgment  of  the 
court  would  be  against  the  prisoner  for  the 
higher  ofiense.  People  v.  Milgate,  5  Cal. 
137,  per  Murray,  C.  J. 

490.  In  Ohio,  where  a  homicide  is  proved 
to  have  been  committed  by  the  defendant, 
the  law  devolves  upon  him  the  burden  of 
establishing  a  justification  or  excuse;  but  a 
preponderance  of  evidence  is  all  that  is  re- 
quired for  this  purpose.  Silvus  v.  State,  22 
Ohio,  jST.  S.  90 ;  s.  c.  1  Green's  Grim.  Reps. 
679  ;  approved  in  Weaver  v.  State,  24  Ohio, 
N.  S.  584.  It  was  held  in  an  early  case  in 
that  State,  that  where  circumstances  of  jus- 
tification or  extenuation  did  not  arise  out  of 
the  proof  on  the  part  of  the  prosecution, 
they  must  be  proved  by  the  prisoner,  or  he 
would  be  deemed  guilty  of  murder  in  the 
second  degree.  State  v.  Turner,  Wright, 20. 
A  similar  rule  prevails  in  Texas.  Hamby  v. 
State,  36  Texas,  523  ;  s.  c.  1  Green's  Crim. 
Reps.  650. 

491.  In  Mississippi,  the  following  instruc- 
tion was  held  correct :  "  Every  killing  is 
presumed  malicious,  and  amounting  to  mur- 
der, until  the  contrary  appears  from  the 
circumstances  of  alleviation,  excuse,  or  jus- 
tification; and  it  is  incumbent  upon  the 
defendant  to  make  out  such  circumstances 
to  the  satisfaction  of  the  jury,  unless  they 
arise  out  of  the  evidence  produced  against 
him."  Green  v.  State,  28  Miss.  687 ;  approv- 
ing McDaniel  v.  State,  8  Smed.  &  Marsh. 417 ; 
s.  p.  Head  v.  State,  44  Miss.  731. 

492.  In  Iowa,  it  is  error  to  charge  the 
jury,  on  a  trial  for  murder,  that  if  they  find 
that  the  defendant  inflicted  the  blow  upon 
the  deceased  that  caused  his  death,  the 
burden  of  proof  is  upon  the  defendant  to 
show  that  he  did  it  in  self-defense ;  the  de- 
fendant being  entitled  to  acquittal  if  tliere 
is  a  reasonable  doubt  that  his  act  was  willful. 
State  V.  Porter,  34  Iowa,  131;  s.  c.  1  Green's 
Crim.  Reps.  241.  When  the  evidence  relates 
solely  to  the  original  transaction,  and  foniis 
])art  of  the  res  gestce,  the  defendant  is  not 
driven  totlie  necessity  of  establishing  matter 
m  excuse  by  a  preponderance  of  evidence; 


and  proof  of  killing  will  not  change  the 
burden  where  the  excuse  is  apparent  on  the 
evidence  offered  by  the  prosecutor,  or  arises 
out  of  the  circumstances  attending  the 
homicide.     Tweedy  v.  State,  5  Iowa,  433. 

493.  In  Florida,  it  was  held  that  the  pre- 
sumption of  malice  arises  in  every  instance 
of  homicide,  and  in  every  charge  of  murder, 
the  fact  of  killing  being  first  proved,  the  law 
will  imply  that  it  was  done  with  malice  ; 
and  all  the  circumstances  of  accident,  neces- 
sity, or  infirmity,  are  to  be  satisfactorily 
proved  by  the  prisoner,  unless  they  arise  out 
of  the  evidence  produced  against  him. 
Holland  v.  State,  12  Fia.  117.  On  a  trial 
for  murder,  the  court  charged  the  jury  that 
"  when  the  killing  has  been  proved,  the 
accused  must  show  that  it  was  attended 
witli  circumstances  of  accident,  necessity,  or 
infirmity,  to  reduce  it  to  a  lower  grade  of 
crime."  Held,  that  as  the  instruction  did  not 
contain  the  qualification  "unless  they  arise 
out  of  the  evidence  produced  against  him," 
it  was  erroneous.  Dixon  v.  State,  13  Fla. 
636 ;  s.  c.  1  Green's  Crim.  Reps.  687.  But 
the  following  instruction  was  held  erro- 
neous :  "  The  killing  being  proved,  even 
though  nothing  else  be  shown,  the  offense  is 
murder,  the  burden  of  extenuation  being 
then  thrown  on  the  accused."  Dukes  v. 
State,  14  Fla.  499 ;  overruling  Gladden  v. 
State,  13  lb.  623,  and  Dixon  v.  State,  sujira. 

494.  In  New  York,  where  the  judge 
charged  the  jury  in  substance  that  the  law 
implied  motive,  and  consequently  the  crime 
of  murder  in  the  first  degree,  from  the  proof 
of  killing  the  deceased  by  the  prisoiier,  and 
that  upon  this  proof  they  should  find  him 
guilty  of  that  crime  unless  he  had  given 
evidence  satisfying  them  that  it  was  man- 
slaughter or  excusable  homicide,  it  was  held 
error;  the  mere  proof  that  one  has  been 
deprived  of  life  by  the  act  of  another  utterly 
failing  to  show  the  class  of  homicide  to 
which  the  killing  belongs.  Stokes  v.  People, 
53  N.  Y.  164. 

495.  There  being  evidence  tending  to 
show  that  a  murder  had  been  committed, 
and  that  the  house  in  which  the  dead  body 
was  had  afterward  been  set  on  fire  to 
conceal  the  ofiense,  it  being  doubtful  whether 


302 


HOMICIDE. 


Murder.      Burden  of  Proof.      Weight  and  Sufficiency  of  Proof.      Charge  of  Court. 


the  accused  was  in  the  vicinity  of  the  house 
-when  the  fire  was  set,  the  court  cliarged  the 
jury,  that  if  the  prisoner  might  have  been 
at  the  scene  of  tlie  fire,  "  tlie  onus  was  cast 
upon  her  to  get  rid  of  the  suspicion  that 
thus  attached  to  her;"  that  she  was  bound 
to  show  where  she  was  at  the  time  of  the 
fire.  Held  error.  Bodine  v.  People,  1  Denio, 
■281. 

496.  Where  in  a  trial  for  murder,  the 
killing  and  identity  of  the  prisoner  are 
proved,  it  is  for  him  to  satisfy  the  jury 
beyond  reasonable  doubt,  that  he  apprehend- 
ed and  had  reason  to  apprehend,  that  he 
was  in  imminent  danger  of  his  life,  or  of  the 
infliction  of  some  great  personal  injury. 
Patterson  v.  People,  46  Barb.  625. 

497.  Where  on  a  trial  for  murder,  the 
<Tefense  is  that  the  body  found  is  not  that  of 
the  person  alleged  to  have  been  murdered, 
after  frima  facie  identification  of  the  dead 
body,  the  burden  of  proof  is  on  the  prisoner 
to  show  that  such  person  is  still  alive. 
State  V.  Vincent,  24  Iowa,  570. 

498.  Although  on  a  trial  for  murder,  it  is 
incumbent  on  the  prosecution  to  prove  that 
the  blows  inflicted  by  the  prisoner  caused 
the  death,  yet  if  it  shown  that  blows  were 
given  with  a  deadly  weapon,  were  followed 
by  alarming  symptoms,  and  shortly  after  by 
■death,  the  burden  is  on  the  prisoner  to  show 
that  the  death  resulted  from  some  other 
cause.  U.  S.  v.  Wiltberger,  3  Wash.  C.  C. 
515. 

499.  Where  the  defense  on  a  trial  for 
murder  is,  that  the  j^risoner  was  under  the 
age  of  presumed  capacity,  the  burden  of 
proof  is  on  him.  If  the  age  can  be  as- 
certained by  inspection,  the  court  and  jury 
must  determine  it.  State  v.  Arnold,  13 
Ired.  184. 

(Z)  Weight  and  svfficiency  of  proof. 

500.  What    required     to     convict.     To 

authorize  the  jury  to  find  a  jjerson  guilty  of 
murder,  the  circumstances  must  not  only  be 
consistent  with  his  guilt,  but  must  exclude 
every  other  reasonable  hypothesis.  Phipps 
V.  State,  3  Cold.  344 ;  SchuslerV.  State,  2» 
Ind.  394. 

501.  On  a  trial  for  murder,  it  was  proved 


that  the  evening  before  the  homicide,  the 
prisoner  was  at  a  certain  house,  and  said 
that  he  was  going  from  there  to  B.'s,  and 
that  he  came  home  tliat  evening  about  eight 
o'clock.  After  the  evidence  was  closed  on 
both  sides,  one  of  the  jurors,  addressing  the 
public  prosecutor,  said,  "  We  must  have  B. 
here,  and  you  must  bring  him  here;"  and  the 
next  morning,  the  cause  being  still  on  trial, 
the  same  juror  made  the  same  request  of  the 
court.  The  prisoner  being  found  guilty, 
it  was  held  that  the  non-production  of  B. 
was  ground  for  arrest  of  judgment.  State 
V.  Watkins,  9  Conn.  47. 

502.  Proof  that  the  prisoner  was  present, 
aiding  and  abetting  in  a  murder,  will  support 
an  indictment  charging  him  as  sole  principal. 
Com.  V.  Chapman,  11  Cush.  422.  But  an 
accessory  before  the  fact  to  murder  cannot 
be  convicted  on  an  indictment  charging  him 
as  principal.  Thornton  v.  Com.  24  Gratt. 
657. 

503.  Disadvantage  of  circumstantial 
evidence.  The  disadvantage  of  circum- 
stantial evidence  is,  that  the  jury  has  not 
only  to  weigh  the  facts,  but  to  derive  con- 
clusions from  them,  in  doing  which  they 
may  be  induced  by  prejudice  or  partiality, 
or  by  want  of  due  deliberation  and  correct 
judgment,  to  make  hasty  and  false  de- 
ductions.    Com.  V.  Webster,  5  Cush.  295. 

(???)   Charge   of  court. 

504.  Duty  of  court.  Where,  on  a  trial 
for  murder,  there  is  a  question  as  to  the 
grade  of  the  ofiense,  the  court  should  ex- 
plain the  several  grades  of  homicide  to  the 
jury,  and  leave  it  to  them  to  determine  the 
grade  of  which  the  prisoner  is  guilty.  Craw- 
ford v.  State,  12  Ga.  142;  Davis  v.  State, 
10  lb.  101. 

505.  Where  an  instruction  asked  for,  on 
a  trial  for  murder,  is  framed  in  the  language 
of  the  statute,  it  is  improper  for  the  court  to 
refuse  to  give  it.  Boles  v.  State,  9  Smed. 
&  Marsh.  284. 

506.  When  the  evidence  on  a  trial  for 
murder  establishes  provocation,  it  is  the 
duty  of  the  court  to  declare  as  a  matter  of 
law,  whether  it  is  sufficient  to  remove  the 
presumption  of  malice  arising  from  the  fatal 


HOMICIDE. 


303 


Murder. 


Charge  of  Court. 


Verdict. 


use  of  a  deadly  weapon.  But  when  the 
existence  and  extent  of  the  provocation  are 
to  be  determined  by  the  jury,  the  court  can 
only  charge  them  hypothetically  in  relation 
to  it.  U.  S.  V.  Armstrong,  3  Curtis  C.  C. 
446. 

507.  Where  part  of  an  entire  instruction 
asked  for  would  be  good,  and  part  bad,  the 
court  may  decline  to  give  it.  Stanton  v. 
State,  8  Eng.  317. 

508.  It  is  not  error  in  the  court  to  refuse 
to  charge  the  jury  that  in  capital  cases  they 
are  the  judges  of  the  law  as  well  as  the  fact. 
Pierson  v.  State,  12  Ala.  149. 

509.  "Withdrawing  question  from  jury. 
On  a  trial  for  murder,  the  court  charged  the 
jury  as  follows :  "If  you  find  the  prisoner 
guilty,  it  is  for  you  to  say  from  the  evidence 
whether  he  is  guilty  of  murder  in  the  first, 
second  or  third  degree.  If  you  find  from 
the  evidence  that  he  is  not  guilty  in  either 
degree,  you  will  return  a  verdict  of  not 
guilty."  Held  error,  as  it  prevented  the 
jury  from  finding  a  verdict  for  manslaughter, 
and  as  they  did  not  acquit  him,  they  were 
compelled  to  find  him  guilty  of  murder. 
Dukes  V.  State,  14  Fla.  499. 

510.  An  instruction  that  if  the  deceased 
was  found  dead  in  her  bed,  with  her  throat 
cut,  the  jury  would  be  authorized  to  find 
the  existence  of  all  the  legal  requisites  of 
murder  in  the  first  degree  is  erroneous  in  ex- 
cluding from  their  consideration  the  ques- 
tion whether  the  death  was  the  result  of 
suicide,  or  resulted  from  a  conflict  which 
would  reduce  the  degree  of  the  homicide. 
Hall  V.  State,  40  Ala.  698. 

511.  The  following  instruction  was  held 
erroneous:  ''If  the  jury  should  find  from 
the  evidence  that  the  prisoner  and  the  de- 
ceased armed  themselves  on  account  of  their 
quarrel,  and  both  drew,  it  was  quite  imma- 
terial which  fired  first;  there  was  malice 
aforethought  iu  each,  and  the  slayer  was 
guilty  of  murder."  Alford  v.  State,  33  Ga. 
303. 

512.  It  is  error  to  charge  the  jury  on  a 
trial  for  murder,  that  they  "must  infer  mal 
ico  "  from  the  killing,  when  there  is  some 
evidence  that  the  killing  was  accidental. 
Hampton  v.  State,  45  Ala.  83. 


513.  It  is  error  in  the  court  to  tell  the 
jury  that  there  is  an  appellate  court,  to 
which  the  prisoner  can  carry  his  case,  if 
testimony  ofi^ered  in  his  behalf  had  been 
improperly  rejected ;  such  remark  being  cal- 
culated to  diminish  their  sense  of  responsi- 
bility, and  at  the  same  time  to  convey  the 
idea  that  the  evidence  already  before  them 
was  not  sufficient  to  acquit.  Monroe  v. 
State,  5  Ga.  85. 

{n)    Verdict. 

514.  May  be  general.  Where  in  an  in- 
dictment for  murder,  but  one  ofifense  is 
charged,  though  set  forth  in  several  counts, 
if  the  jury  find  the  defendant  guilty  of  the 
murder  as  set  forth  in  either  of  the  counts, 
they  need  not  find  separately  on  each  count, 
but  may  return  a  verdict  of  guilty  generally. 
Com.  v.  Des  Martean,  16  Gray,  1. 

515.  But  where  an  indictment  for  murder 
in  one  count  alleged  that  the  killing  was 
caused  by  beating  with  a  stick,  and  in  an- 
other count  that  it  was  caused  by  drowning, 
it  was  doubted  whether  the  jury  could  find 
a  general  verdict  of  guilty.  In  such  case, 
the  jury  ought  to  specify  under  which  count 
they  find  the  defendant  guilty.  Mary  v. 
State,  5  Mo.  71. 

516.  Where  under  an  indictment  charging 
murder  in  one  count,  and  manslaughter  in 
another  count,  the  jury  find  the  defendant 
guilty  generally,  it  will  be  presumed  that 
the  verdict  is  for  the  highest  ofi'ense  charged. 
Bullock  v.  State,  10  Ga.  46. 

517.  The  statute  of  New  York  defining 
murder  is  not  a  rule  of  pleading,  but  a 
guide  to  the  conduct  of  the  trial  and  to  the 
instructions  to  be  given  to  the  jury.  Under 
an  indictment  for  murder,  in  the  common- 
law  form,  which  charges  that  the  killing 
was  with  malice  aforethought,  a  general 
verdict  of  guilty  as  charged,  is  a  conviction 
of  murder  in  the  first  degree.  Kennedy  v. 
People,  39  K  Y.  245. 

518.  May  be  for  less  cflense  than  that 
charged.  In  general,  where  the  indictment 
includes  an  offense  of  an  inferior  degree,  the 
jury  may  acquit  the  defendant  of  the  higher 
crime  and  convict  him  of  the  lower.  State 
V.    Gaflfney,    Rice,    431 ;    Com.  v.  Gallic,    7 


304 


HOMICIDE. 


Murder. 


Verdict. 


Sei-g.  &  Rawle,  423;  People  v.  Doe,  1 
Manninij,  451 ;  Brooks  v.  State,  3  Humph. 
25;  King  v.  State,  5  How.  Miss.  730;  Rey- 
nolds V.  State,  1  Kelly,  223 ;  Cora.  v.  Herty, 
109  Mass.  348 ;  s.  c.  1  Green's  Crim.  Reps. 
194.  A  verdict  finding  the  defendant  guilty 
of  murder  in  the  second  degree  is  an  acquit- 
tal of  the  higher  crime.  State  v.  Belden, 
33  Wis.  120  ;  s.  c.  2  Green's  Crim.  Reps.  647 ; 
Clem  V.  State,  42  Ind.  420;  s.  c.  2  Green's 
Crim.  Reps.  687. 

519.  In  Connecticut,  under  an  indictment 
for  murder  committed  hy  poison,  the  jury 
may  find  the  prisoner  guilty  of  murder  in  the 
second  degree.  State  v.  Dowd,  19  Conn. 
388. 

520.  It  is  erroneous,  on  a  trial  for  murder, 
to  charge  the  jury  that  they  must  find  the 
prisoner  guilty  of  murder,  or  not  guilty. 
Davis  V.  State,  10  Ga.  108;  Holden  v.  State, 
5  lb.  441. 

521.  Under  an  indictment  charging  that 
an  assault  was  committed  with  malice  afore- 
thought, the  jury  may  find  the  prisoner 
guilty,  although  their  finding  negatives  the 
malice  aforethouglit.  Sharp  v.  State,  19 
Ohio,  379. 

522.  On  a  trial  for  murder,  the  jury,  under 
the  statute  of  New  York  (2  R.  S.  725,  §  27, 
Edm.  ed.),  can  convict  of  any  degree  of  the 
offense  inferior  to  that  charged.  Where  the 
instruction  restricted  the  jury  in  the  event 
of  conviction  to  murder  in  the  first  degree 
or  manslaughter  in  the  third  degree,  and 
the  judge  refused  to  charge  that  they  could 
convict  of  murder  in  the  first  degree  or 
murder  in  the  second  degree,  er  of  any  of 
the  degrees  of  manslaughter,  it  was  held 
error  unless  there  was  no  evidence  of  any 
other  crime  than  murder  in  the  first  degree 
or  manslaughter  in  the  third  degree.  The 
proper  instruction  would  have  been  for  the 
judge  to  say  to  the  jury  that,  under  the  in- 
dictment, a  conviction  of  the  principal  of- 
fense, or  of  any  less  degree,  was  allowable, 
and  then  leave  it  to  the  jury  to  apply  the 
facts  to  the  definitions  of  the  various  grades 
of  the  crime,  and  say  which  they  thought 
was  sustained.  McNevins  v.  People,  61 
Barb.  307. 

523.  In  Missouri,  where   the  indictment 


charged  an  intent  to  kill  and  murder,  and 
the  jury  found  that  the  intent  was  "to 
commit  manslaughter,"  it  was  held  that  the 
variance  was  fatal,  and  that  the  judgment 
must  be  arrested.  Morman  v.  State,  24 
Miss.  55. 

524.  Must  find  degree.  On  a  trial  for 
murder,  a  verdict  of  guilty  must  find  the 
degree  of  the  crime.  Hall  v.  State,  40  Ala. 
698;  and  unless  it  does  so  the  court  cannot 
pass  sentence.  Robertson  v.  State,  42  Ala. 
509. 

525.  Under  an  information  charging  mur- 
der in  the  first  degree,  a  verdict  that  the 
prisoner  "is  guilty  as  charged,"  without 
specifying  of  what  degree  of  homicide  he  is 
foitnd  guilty,will  not  authorize  a  judgment 
for  murder  in  the  first  degree.  State  v. 
Reddick,  7  Kansas,  143.  In  such  case,  the 
court  should,  on  motion  of  the  defendant, 
grant  a  new  trial.  State  v.  Huber,  8  Kansas, 
447. 

526.  Where  on  a  trial  for  murder,  the 
jury  being  f)olled,  the  foreman  answered 
"guilty  of  murder  in  the  first  degree," 
and  each  of  the  other  jurors  answered 
simply  "  guilty,"  it  was  held  that  the  ver- 
dict was  insufficient,  the  statute  (of  Md.  of 
1809,  ch.  138,  §  3)  requiring  the  jury  to  as- 
certain by  their  verdict  the  degree  of  the 
crime.     Ford  v.  State,  12  Md.  514. 

527.  On  a  trial  for  murder,  the  jury  ren- 
dered the  following  verdict :  "  We ,  the 
jury,  find  the  defendant  not  guilty  in  man- 
ner and  form  as  charged  in  the  indictment, 
but  we  do  find  her  guilty  of  murder  in  the 
second  degree."  Held  that  in  legal  effect  it 
was  a  verdict  of  guilty  of  murder  in  the  sec- 
ond degree.     Freel  v.  State,  21  Ark.  212. 

528.  A  verdict  in  tlie  following  words  : 
"  We,  the  jury,  find  the  defendant  guilty  of 
murder  in  the  first  degree,  and  assess  capital 
punishment,''''  was  altered,  at  the  suggestion 
of  the  court,  so  that  the  last  clause  read, 
"  and  that  he  must  suffer  deaths  Held  good 
in  either  form.     Bramlett  v.State,  31  Ala.  376. 

629.  Prisoner  must  be  present.  The 
record  must  show  affirmatively  that  the 
prisoner  was  present  during  the  trial,  or  it 
will  be  error.  Scraggs  v.  State,  8  Smed.  & 
Jlarsh.  722 ;  State  v.  Collins,  8  Ired.  407. 


HOMICIDE. 


305 


Murder. 


Verdict. 


Sentence. 


Manslaughter,        What  Constitutes. 


530.  Consent  of  prisoner.  Where  one 
being  indicted  and  convicted  of  murder,  a 
new  trial  was  granted,  and  the  Legislature 
repealed  the  law,  and  passed  another  law 
making  the  punishment  as  for  manslaughter, 
without  any  saving  clause  as  to  offenses  pre- 
viously committed,  and  a  new  indictment 
was  found  for  the  same  act  of  killing,  and 
the  defendant,  with  a  knowledge  of  all  tiie 
facts,  on  being  arraigned  pleaded  "guilty," 
and  was  sentenced  to  impi'isonment  under 
the  new  law — Held  that  as  the  conviction 
appeared  to  have  been  the  result  of  a  volun- 
tary contract  on  the  part  of  the  defendant, 
the  court  would  not  disturb  it.  Sellers  v. 
People,  1  Gilman,  183. 

531.  Separation  of  jury.  Where  on  a 
trial  for  murder  there  has  been  an  improper 
separation  of  the  jury  during  the  trial,  the 
prisoner,  if  found  guilty,  is  entitled  to  the 
benefit  of  the  presumjjtion  that  the  irregu- 
larity has  been  prejudicial  to  him,  and  the 
burden  is  on  the  prosecution  to  show  beyond 
a  reasonable  doubt  that  the  defendant  has 
sustained  no  injury  therefrom.  Monroe  v. 
State,  5  Ga.  85. 

532.  Amendment.  Where  the  jury  re- 
turned the  following  verdict :  "  We  find  the 
prisoner  guilty  of  murder,"  and  the  court 
directed  the  words  "  Samuel  Yancey  "  to  be 
interlined  after  the  word  "  prisoner,"  it  was 
held  that  although  the  amendment  was  ir- 
regular, it  did  not  vitiate  the  verdict.  State 
V.  Yancey,  3  Brev.  142. 

533.  Acquittal.  To  justify  a  verdict  of 
not  guilty  on  a  charge  of  murder,  the  doul)t 
must  be  substantial,  and  not  a  mere  possi- 
bility.    Com.  V.  Harman,  4  Barr,  269. 

(o)  Sentence. 

534.  Interrogating  prisoner.  On  a  trial 
for  murder,  the  record  must  show  that  the 
prisoner  was  asked  if  he  had  anything  to 
say  why  sentence  of  death  should  not  be 
pronounced  upon  him.  Hamilton  v.  Com. 
16  Penn.  St.  129. 

535.  In  case  of  escape.  Where  a  person 
having  l»een  convicted  of  murder  and  sen- 
tenced, before  the  day  named  for  his  execu- 
tion, escaped,  and  was  afterward  retaken  by 
the  sheriff,  and  kept  in  custody  until  the 

20 


next  term  of  covirt,  when  he  was  brought 
into  court,  it  was  held  proper  for  the  court 
to  award  execution  against  him  on  the  for- 
mer judgment.  Bland  v.  State,  2  Carter,. 
608. 

536.  How  satisfied.  The  judgment  of 
death  can  only  be  satisfied  by  execution  or 
pardon ;  and  where  the  sentence  of  death 
was  not  carried  out  in  consequence  of  the 
decease  of  the  sheriff",  the  court  assigned  an- 
other day  for  the  execution.  State  v.  Kit- 
chens, 2  Hill,  S.  C.  612;  and  see  Bland  v. 
State,  supra. 

2.  Manslaughter. 
{a)  What  constitutes. 

537.  Meaning  and  characteristics.  Man- 
slaughter is  the  unlawful  killing  of  a  human 
being  without  premeditation  or  malice. 
Reynolds  v.  State,  1  Kelly,  223 ;  Beets  v. 
State,  Meigs,  106 ;  People  v.  Austin,  1  Par- 
ker, 154 ;  Com.  v.  Riley,  Thach.  Crim.  Cas. 
471 ;  King  v.  Com.  2  Va.  Cas.  78 ;  Com.  v. 
Mitchell,  1  lb.  116;  Pennsylvania  v.  Levin, 
Addis.  279;  Com.  v.  Biron,  4  Dall.  125; 
Studstill  V.  State,  7  Ga.  2;  U.  S.  v.  Wilt- 
berger,  3  Wash.  C.  C.  515;  State  v.  Zellers, 
2  Halst.  220;  Com.  v.  Webster,  5  Cusli.  295. 

538.  Every  unlawful  killing  from  the 
heat  of  passion,  upon  a  reasonable  provoca- 
tion, without  malice,  is  manslaughter.  Clark 
V.  State,  8  Humph.  671 ;  Short  v.  State,  7 
Yerg.  513;  Jacob  v.  State,  3  Humph.  493; 
Young  V.  State,  11  lb.  200 ;  State  v.  Roberts, 
1  Hawks,  349  ;  Preston  v.  State,  22  Miss. 
383. 

539.  A  killing  on  a  sudden  quarrel,  to 
avoid  great  bodily  harm,  is  manslaughter. 
State  V.  Roberts,  1  Hawks,  349.  So,  where 
two  fight  on  fair  terras,  and  after  an  inter- 
val, blows  having  been  given,  one  of  them, 
in  the  heat  of  passion,  draws  a  deadly 
weapon  and  inflicts  a  fatal  injury,  it  is  man- 
slaughter only.  State  v.  Hildreth,  9  Ired. 
429. 

540.  If  A.  assault  another  with  a  deadly 
weapon,  and  kill  him,  and  his  intention  to 
assault  him  with  such  weapon  w^as  unknown 
to  B.,  and  he  supposed  that  A.'s  object  was 
to  assault  and  beat  deceased  only,  and  B. 
intended  to  participate  in  the  assauH  and 


306 


HOMICIDE. 


Manslaughter. 


What  Constitutes. 


battery  only,  and  participated  in  no  design 
to  kill,  he  is  guilty  of  manslaughter  only, 
while  A.  is  guilty  of  murder.  Brown  v. 
State,  38  Ga.  199. 

541.  Where,  on  a  trial  for  murder,  the 
judge  having  charged  the  jury  that  if  the 
prisoner  "in  the  heat  of  blood  upon  suffi- 
cient provocation,"  threw  the  deceased  down 
stairs,  the  oftense  was  manslaughter,  but 
afterward  explained  that  the  word  "  suffi- 
cient "  meant  great  and  sudden  provocation, 
it  was  held  that  there  was  no  ground  of  ex- 
ception.    State  V.  Murphy,  61  Maine,  56. 

542.  On  the  trial  of  an  indictment  for 
murder,  it  was  proved  that  the  deceased, 
who  bad  boarded  in  the  prisoner's  family, 
went  to  the  prisoner's  room  for  his  clothes, 
when  hard  words  were  exchanged  between 
them;  that  the  deceased,  having  got  his 
clothes,  was  proceeding  down  stairs  with 
them  under  his  arm,  when  the  deceased  said 
to  the  prisoner,  "  Go  with  all  the  money 
you  have  got ;  has'nt  your  wife  to  beg  every 
day  ?"  To  which  the  prisoner  replied, 
"  You  go,  you  rascal;  go."  At  this  the  de- 
ceased turned  to  go  up  stairs  again,  when 
the  prisoner  said,  "  Come  back,  I  will  fix 
you."  As  the  deceased  advanced  to  the 
door  of  the  prisoner's  room,  it  being  open, 
the  prisoner  seized  a  rolling  pin  and  struck 
the  deceased  three  or  four  blows  with  it  on 
his  head,  inflicting  a  wound  from  which  he 
died  the  next  day.  Held  that  a  conviction 
of  manslaughter  was  proper.  Greschia  v. 
People,  53  III.  295. 

543.  The  beating  or  striking  of  the  wife 
by  her  husband  violently,  with  the  open 
hand,  is  unlawful,  and  if  death  results  there- 
from, he  is  at  least  guilty  of  manslaughter. 
Com.  V.  McAfee,  108  Mass.  458. 

544.  It  is  erroneous  for  the  court  to  charge 
the  jury  that  "  if  a  man  use  a  deadly 
weapon  in  killing  his  adversary,  the  law  im- 
plies malice  from  its  use,  except  where  the 
killing  is  excusable,"  it  being  tantamount  to 
charging  that  there  is  no  such  thing  as  man- 
slaughter where  a  deadly  weapon  is  used,  as 
the  implied  malice  makes  it  murder  if  it  is 
not  excusable.     Miller  v.  State,  37  Ind.  432. 

545.  Malice,  and  an  intention  to  kill,  are 
essential  in  murder,  while  malice  is  excluded 


from  the  crime  of  manslaughter.  The  in- 
tention to  kill  is  also  excluded  from  man- 
slaughter, where  the  death  results  from  an 
unlawful  act,  designed  to  effect  another  ob- 
ject; but  if  there  arise  a  sudden  quarrel, 
and  one  under  great  provocation  instantly 
kill  another  intentionally,  it  is  manslaughter. 
State  V.  Turner,  Wright,  20. 

546.  In  New  York,  except  by  aiding  one 
to  commit  suicide,  or  by  killing  an  unborn 
child  by  an  injury  to  the  mother,  to  consti- 
tute manslaughter  in  the  first  degree,  it  must 
have  been  committed  without  a  design  to 
effect  death.  People  v.  Clarke,  3  Seld.  385. 
In  that  State,  in  order  to  bring  the  case 
within  the  definition  of  manslaughter  in  the 
first  degree,  it  is  necessary  to  show  that  the 
accused  was  committing,  or  attempting  to 
commit,  some  other  offense  than  that  of  in- 
tentional violence  upon  the  person  killed. 
People  V.  Butler,  3  Parker,  377. 

547.  In  Ohio,  although  an  intent  to  kill 
may  be  an  ingredient  of  manslaughter,  yet  it 
is  not  a  necessary  ingredient.  Montgomery 
V.  State,  11  Ohio,  424. 

548.  In  Alabama,  where  an  act  amounting 
to  manslaughter  is  voluntarily  committed,  it 
is  manslaughter  in  the  first  degree,  without 
regard  to  the  circumstances  of  provocation. 
Oliver  v.  State,  17  Ala.  587.  To  constitute 
the  offense,  there  must  be  a  criminal  intent 
or  negligence  so  gross  as  to  imply  it.  There- 
fore, the  refusal  of  the  court  to  charge,  when 
requested  by  the  defendant,  that  there  must 
be  a  criminal  intent  to  justify  a  conviction 
for  manslaughter,  is  error.  Hampton  v. 
State,  45  Ala.  82. 

549.  On  the  trial  of  an  indictment  for 
manslaughter,  charging  the  defendant  with 
assaulting  the  deceased  with  a  knife,  and 
giving  him  a  mortal  wound,  the  record 
of  conviction  for  the  assault  and  battery  is  a 
conclusive  answer  to  the  plea  of  self-defense. 
Com.  V.  Evans,  101  Mass.  25. 

550.  Involuntary  manslaughter  is  where  it 
plainly  appears  that  neither  death  nor  any 
bodily  harm  was  intended,  but  death  is  ac- 
cidentally caused  by  some  unlawful  act,  or 
any  act  not  strictly  unlawful  in  itself,  but 
done  in  an  unlawful  manner  and  without  due 
caution.     Lee  v.  State,  1  Cold.  Teuu.  62. 


HOMICIDE. 


307 


Manslaughter. 


What  Constitutes. 


551.  From  sudden  passion.  To  consti- 
tute "heat  of  passion,"  within  the  statute 
of  New  York  defining  manslaughter,  it  is 
enough  that  the  passions  are  heated  by  the 
acts  or  conduct  of  the  one  upon  whom  the 
assault  is  made,  and  this  state  may  be 
caused  by  words,  if  naturally  calculated  to 
produce  it.  Wilson  v.  People,  4  Parker,  619. 
In  Maine,  where  the  deceased  created  a  dis- 
turbance in  the  defendant's  hotel,  persisted 
in  attempts  to  enter  the  rooms  of  female 
guests,  and  resisted  attempts  to  put  him 
out,  it  was  held  proper  for  the  court  to 
charge  that  if  the  defendant,  "in  the  heat 
of  blood  and  upon  sufficient  provocation, 
threw  the  deceased  down  stairs,  the  offense 
w^as  manslaughter."  State  v.  Murphy,  01 
Maine,  56 ;  s.  c.  2  Green's  Crim.  Reps.  457. 

552.  In  case  of  homicide,  the  fact  that 
the  deceased  whipped  the  child  of  the  ac- 
cused would  be  a  sufficient  legal  provoca- 
tion to  reduce  the  offense  from  murder  to 
manslaughter,  if,  in  consequence  of  such 
whipping,  the  accused  was  suddenly  so  en- 
raged as  to  be  incapable  of  cool  reflection, 
and  she  inflicted  the  mortal  wound  while  so 
enraged,  and  not  in  pursuance  of  any  precon- 
ceived design.    Maria  v.  State,  28  Texas,  698. 

553.  Whether  a  boy  who,  upon  being 
w^antonly  provoked,  throws  a  stone  at  an- 
other, and  kills  him,  is  guilty  of  man- 
slaughter, depends  upon  all  of  the  circum- 
stances of  the  case.  Holly  v.  State,  10 
Humph.  141. 

554.  A.  and  B.  had  been  drinking  together, 
when  A.  mounted  his  horse  to  ride  away ; 
whereupon  B.  seized  the  bridle,  and  insisted 
that  A.  should  go  back  with  him  and  take 
another  drink.  A.  refused  to  go  back,  and 
attempted  to  get  the  bridle  loose  from  B., 
which  he  was  unable  to  do.  A.  got  off 
from  his  horse  and  knocked  B.  down  with  a 
gallon  jug  of  molasses,  and  struck  B.  twice 
with  the  jug  afterward,  as  he  lay  on  the 
ground  apparently  lifeless.  Held  man- 
slaughter.    State  v.  Ramsey,  5  Jones,  195. 

555.  In  mutual  combat.  Killing  in  a 
fight  upon  a  sudden  (juarrel,  the  chances 
being  equal,  is  manslaughter.  State  v.  Mas- 
sage, 65  N.  C.  480.  Where,  therefore,  par 
ties   go   into  a  fight   by   agreement,    upon 


equal  terms,  each  having  and  using  a  knife 
upon  a  sudden  heat  of  passion,  and  one  of 
them  is  killed,  it  is  voluntary  manslaughter, 
and  not  murder.     Gann  v.  State,  30  Ga.  67. 

556.  If  two  engage  in  a  fight  upon  a  sud- 
den quarrel,  and  one  kills  the  other  with  a 
deadly  weapon,  it  is  but  manslaughter;  and 
it  is  not  material  which  made  the  first  at- 
tack.    State  V.  Floyd,  6  Jones,  392. 

557.  Where  a  mutual  combat  is  proved, 
without  previous  malice  on  the  part  of  the 
accused,  and  that  mutual  blows  were  given 
before  the  accused  drew  his  knife,  and  that 
he  then  drew  it  in  the  heat  and  fury  of  the 
fight,  and  dealt  a  mortal  wound  with  the 
purpose  of  taking  life,  it  is  manslaughter 
and  not  murder.  State  v.  McDonnell,  32 
Vt.  491. 

558.  Where  two  persons  fight  by  mutual 
consent,  without  previous  malice,  and  one 
kills  the  other  with  a  deadly  weapon,  it  is 
at  least  manslaughter.  If  one  asks  the  other 
to  strike  him,  intending  to  use  a  deadly 
weapon,  and,  upon  being  struck  by  the  other 
with  his  fist  or  hand,  kills  him  with  such 
deadly  weapon,  he  is  guilty  of  murder.  If 
one  assail  the  other  with  insulting  language 
and  blows,  and  the  latter,  without  trying  to 
avoid  a  fight,  kills  the  other  with  a  deadly 
weapon,  it  is  manslaughter.  Atkins  v.  State, 
16  Ark.  568. 

559.  Where,  on  trial  for  murder,  the  de- 
fense mainly  rested  upon  the  fact  that  the 
deceased  fired  upon  and  wounded  the  de- 
fendant with  a  shot  gun,  and  it  was  proved 
that  the  deceased  had  abandoned  his  as- 
sault and  was  retiring,  and  that  the  defend- 
ant was  in  no  imminent  danger  when  he 
inflicted  the  mortal  wound,  it  was  held  that 
a  verdict  of  manslaughter  was  proper. 
Evans  v.  State,  33  Ga.  4. 

560.  A  quarrel  occurring  between  A.  and 
his  wife,  B.  interfered,  whereupon  a  scuflie 
ensued  between  A.  and  B.,  in  which  A.  fell 
over  a  spinning  wheel  and  hurt  himself 
badly.  B.  then  ran  out  of  the  house,  and 
A.  seized  a  gun,  followed  him  to  the  door, 
from  which  B.  had  retreated  fifteen  yards, 
and,  while  B.  was  still  retreating,  shot  him 
dead.  Held  not  murder.  Com.  v.  Mitchell, 
2  Wheeler's  Crim.  Cas.  471. 


508 


HOMICIDE. 


Manslaughter. 


What  Constitutes. 


561.  In  case  of  mutual  combat,  it  is  not 
important  as  to  the  character  of  tlie  homi- 
cide, -n-hich  gave  the  first  blow.  The  pre- 
sumption in  regard  to  all  such  encounters 
upon  equal  terms  is,  that  neither  intended 
to  kill  or  do  grievous  bodily  harm  to  the 
other.  The  testimony  of  the  defendant  that 
he  only  meant  to  hit  the  shoulder,  and  not 
the  head  of  the  deceased,  is  competent  upon 
the  qii^estion  whether  the  blow  was  given  in 
the  reasonable  exercise  of  his  right  of  self- 
defense.  Com.  V.  Woodward,  102  Mass.  155. 
But  if  one  take  a  deadly  weapon  into  the 
affray  with  the  design  of  using  it  in  the  fight, 
and  especially  if  this  be  unknown  to  the 
other  party,  it  will  aflford  strong  evidence  of 
malice.     State  v.  McDonnell,  32  Vt.  491. 

562.  The  following  instruction,  on  a  trial 
for  murder,  was  held  proper:  "If  the  de- 
fendant sought  a  difficulty  with  the  deceased 
for  the  purpose  of  killing  him,  and  in  the 
fight  did  kill  him  in  pursuance  of  his  mali- 
cious intention,  the  jury  will  find  the  de- 
fendant guilty  of  murder.  But  if  the 
defendant  voluntarily  got  into  the  difficulty 
or  fight,  not  intending  to  kill  at  the  time, 
and  did  not  decline  further  fighting  before 
the  mortal  blow  was  struck,  and  then  drew 
his  knife  and  with  it  struck  and  killed  the 
deceased,  they  will  find  the  defendant  guilty 
of  manslaughter,  although  the  cutting  and 
killing  were  done  in  order  to  prevent  an 
assault  upon  him  by  the  deceased,  or  to 
prevent  the  deceased  from  getting  the  ad- 
vantage in  the  fight.  Adams  v.  People,  47 
111.  376. 

563.  Where,  on  a  trial  for  manslaughter, 
it  appeared  that  the  prisoner  and  the  de- 
ceased were  fighting,  and  that  the  prisoner 
after  striking  the  deceased  several  times 
with  the  hnndle  of  a  dagger  threw  it  down, 
it  was  held  that  if  the  prisoner  was  not  de- 
fending himself  from  the  loss  of  life  or  great 
bodily  harm,  or  just  apprehension  of  it,  and 
the  deceased  fell  upon  the  dagger  in  conse- 
quence of  a  blow  or  violence  inflicted  by  the 
prisoner,  and  so  received  the  mortal  wound, 
a  verdict  of  guilty  might  be  proper.  People 
V.  Goodwin,  1  Wheeler's  Crim.  Cas.  253. 

561  A.  sought  B,  and  threatened  his  life, 
and  after  quarreling,  B.  struck  A.  with  his 


fist,  and  they  then  separated,  and  A.  tried  to 
secure  a  stick  which  he  could  not  do,  and 
again  stooped  to  pick  up  another  stick  of  a 
dangerous  character,  when  B.  stabbed  him. 
Held  manslaughter.  Allen  v.  State,  5  Yerg. 
453.     See  State  v.  Hildreth,  9  Ired.  429. 

565.  On  a  trial  for  murder,  the  court 
charged  the  jury,  that  if  an  altercation  took 
place  between  the  jjarties  in  a  grocery  where 
they  met,  and  the  deceased  invited  the  de- 
fendant to  go  with  him  into  the  street  and 
settle  the  matter,  and  after  gettittg-into  the- 
street,  angry  words  were  used  by  both,  and 
both  were  ready  and  willing  to  fight,  and 
they  did  fight,  and  the  defendant  wovmded 
the  deceased,  and  he  died  from  the  effect  of 
the  wounds,  the  defendant  was  guilty  of 
manslaughter.  Held  erroneous,  for  the  reason 
that  the  defendant  might  have  gone  out  for 
an  amicable  settlement,  and  with  no  hostile 
intention.  CoflFman  v.  Com.  10  Bush,  Ky. 
495. 

566.  Where  upon  angry  words  on  both 
sides,  between  A.  and  B.,  the  latter  ap- 
proached the  former  and  struck  him  a  violent 
blow  with  his  fist,  and  the  company  separated 
them,  and  were  taking  B.  away,  when  A. 
within  one  minute  advanced  upon  B.,  wha 
extended  his  arm  to  take  hold  of  him,  and 
A.  immediately  stabbed  him  with  a  knife,  it 
was  held  manslaughter.  State  v.Yarborough, 
1  Hawks,  78. 

567.  In  order  to  reduce  a  homicide  com- 
mitted in  a  second  combat,  by  what  occurred 
at  a  previous  one,  both  must  be  deemed  as 
one,  or  the  first  must  be  considered  as  a 
sufficient  provocation  for  the  second.  State 
V.  McCants,  1  Spear,  384. 

568.  If  the  prisoner  upon  encountering  the 
deceased,  unexpectedly,  who  had  confronted 
her  upon  her  lawful  road,  accepted  the  fight 
when  she  might  have  avoided  it,  the  law  will 
not  presume  the  killing  to  have  been  upon 
the  old  grudge,  but  upon  fresh  provocation, 
and  it  will  be  manslaughter.  Copeland  v. 
State,  7  Humph.  479. 

569.  But  in  case  of  mutual  combat,  in  or- 
der to  reduce  the  offense  from  murder  to 
manslaughter,  it  must  appear  that  the  con- 
test was  waged  upon  equal  terms,  and  that 
no  undue  advantage  was  sought  or  taken  by 


HOMICIDE. 


309 


Manslaughter. 


What  Constitutes. 


either  side ;  for  if  such  was  the  case,  malice 
may  be  inferred,  and  the  killing  amount  to 
murder.  If  sufficient  time  elajDse  between 
the  quarrel  and  the  going  out  to  fight  to  en- 
able the  blood  to  cool  and  passion  to  sub- 
side, the  killing  will  be  murder  and  not 
manslaughter.  People  v.  Sanchez,  24  Cal. 
17;  People  v.  Smith,  26  lb.  665. 
-•^70.  Where  a  person  arranges  with  an  ad- 
versary, hours  before  a  fight,  that  it  shall  take 
place,  or  authorizes  his  friends  to  make  such 
arrangements  for  him,  it  is  not  a  sudden  com- 
bat within  the  statute  of  New  York,  which 
provides  that  homicide  is  excusable  when 
committed  upon  a  sudden  combat,  without 
any  undue  advantage  being  taken,  and  with- 
out any  dangerous  weapon  being  used,  and 
not  done  in  a  cruel  or  unusual  manner.  Peo- 
ple V.  Tannan,  4  Parker,  514. 

571.  It  is  not  proper  for  the  court  to  say 
to  the  jury  on  a  trial  for  murder,  that  if  the 
defendant  made  an  unlawful  attack,  or  got 
into  a  fight  with  the  deceased  upon  a  sud- 
den heat,  and  slew  him  in  the  controversy, 
he  would  be  guilty  of  manslaughter,  thereby 
depriving  the  accused  of  the  benefit  of  his 
retreat  or  withdrawal  from  the  contest,  al- 
though the  aggressor  in  the  first  instance. 
Hittner  v.  State,  19  Ind.  48. 

572.  By  third  person  interfering  in 
fight.  On  a  trial  for  murder  it  was  proved 
that  the  father  of  the  prisoner  and  the  de- 
ceased were  engaged  in  a  common  fist-fight, 
no  weapons  being  used  or  threatened  on 
either  side,  and  that  while  a  brother-in-law 
of  the  prisoner  was  in  the  act  of  separating 
the  combatants,  the  prisoner,  who  was  a  lad 
fourteen  years  of  age,  ran  up  and  shot  the 
deceased.  Held  that  the  evidence  was  suffi- 
cient to  sustain  a  verdict  of  voluntary  man- 
slaughter.    Irl)y  v.  State,  33  Ga.  496. 

573.  Upon  provocation.  The  provocation 
which  should  have  the  effect  to  reduce  vol- 
untary homicide  to  the  degree  of  man- 
slaughter must  be  sudden  and  great.  Flan- 
agan V.  State,  46  Ala.  73. 

574.  To  mitigate  a  homicide  to  man- 
slaugliter,  the  excited  and  angry  condition 
of  the  person  committing  the  act  must  have 
been  caused  by  some  insult,  provocation,  or 
injury  which  would  naturally  and  instantly 


produce  in  the  minds  of  men,  as  ordinarily 
constituted,  a  high  degree  of  exasperation. 
Preston  v.  State,  22  Miss.  383 ;  Campbell  v. 
State,  23  Ala.  44. 

575.  Provocation  by  words  only,  however 
irritating,  or  by  contemptuous  or  insulting 
actions  or  gestures,  without  an  assault  upon 
the  person,  will  not  mitigate  an  intentional 
homicide  so  as  to  reduce  it  to  manslaughter. 
Com.  V.  Webster,  5  Cush.  395 ;  Beauchamp 
V.  State,  6  Blackf  299 ;  State  v.  Tackett,  1 
Hawks,  310 ;  People  v.  Butler,  8  Cal.  435 ; 
State  V.  Starr,  38  Mo.  370.  And  the  same  is 
the  case  as  to  information  communicated 
by  others,  and  the  killing  of  a  person  be- 
cause of  it.  Fralich  v.  People,  65  Barb.  48 ; 
s.  c.  1  Green's  Crim.  Reps.  714. 

576.  A  slight  assault  will  not  always  ex- 
tenuate a  homicide  to  manslaughter  without 
reference  to  the  character  of  the  weapon 
with  which  the  fatal  wound  was  inflicted. 
To  have  that  effect,  there  must  have  been  a 
reasonable  proportion  between  the  mode  of 
resentment  and  the  provocation.  Nelson  v. 
State,  10  Humph.  518. 

577.  Mere  threats,  unaccompanied  by  some 
demonstration  from  which  the  accused  might 
have  reasonably  inferred  that  the  deceased 
intended  to  execute  them,  will,  not  justify 
the  homicide,  or  reduce  it  from  murder  to 
manslaughter.  Johnson  v.  State,  37  Texas, 
758;  s.  p.  Dawson  v.  State,  33  lb.  431 ;  over- 
ruling Pridgen  v.  State,  31  lb.  430.  And 
the  threat,  to  justify  a  homicide,  must  have 
been  to  take  life,  and  have  been  brought  to 
the  knowledge  of  the  slayer.  Myers  v.  State, 
33  Texas,  535. 

578.  As  to  what  provocation  is  sufficient 
to  reduce  the  offense  from  murder  to  man- 
slaughter, is  a  question  of  law.  State  v. 
Dunn,  18  Mo.  499. 

579.  In  resisting  unlawful  arrest.  If  a 
person  is  unlawfully  arrested,  and  in  resist- 
ing the  arrest,  or  in  attempting  to  escape, 
takes  the  life  of  the  one  so  arresting  him,  it 
is  manslaughter.  Com.  v.  Carey,  13  Cush. 
346;  Com.  v.  McLaughlin,  lb.  615. 

580.  If  process  be  defective  in  the  frame 
of  it,  as  if  there  be  a  mistake  in  the  name  of 
the  person  on  whom  it  is  to  be  executed,  or 
if  the  name  of  such  person  or  of  the  officer 


310 


HOMICIDE. 


Manslaughter. 


What  Constitutes. 


be  inserted  witliout  authority,  or  after  the 
issuing  of  the  process,  or  if  the  officer  exceed 
liis  authority,  the  killing  of  the  officer  by 
the  party  would  be  manslaughter  only.  Raf- 
ferty  v.  People,  69  111.  111. 

581.  The  mere  fact  that  an  attempted  ar- 
rest is  unlawful,  does  not  necessarily  reduce 
the  killing  of  the  officer  to  manslaughter. 
In  such  case,  the  party  sought  to  be  arrested 
may  use  such  reasonable  force  proportioned 
to  the  injury  attempted  upon  him,  as  is  nec- 
essary to  eflect  his  escape,  but  no  more ;  and 
he  cannot  do  this  by  using,  or  offering  to 
use,  a  deadly  weapon,  if  he  has  no  reason  to 
apprehend  a  greater  injury  than  a  mere  un- 
lawful arrest.  If  the  officer  had  the  right  to 
make  the  arrest,  and  employed  no  more  force 
than  was  reasonably  necessary  for  that  pur- 
pose, the  killing  him  by  the  party  sought 
to  be  arrested  would  be  murder,  although 
done  in  the  heat  of  blood.  Galvin  v.  State, 
6  Cold.  Tenn.  283. 

582.  Where  a  homicide  is  committed  in 
resisting  an  illegal  arrest,  it  is  manslaughter 
in  the  absence  of  proof  of  express  malice, 
although  a  deadly  weapon  was  used.  Rob- 
erts V.  State,  14  Mo.  138;  Jones  v.  State,  lb. 
409. 

583.  "When  a  person  under  color  of  law 
unlawfully  arrests  another,  and  one  not  a 
stranger  in  endeavoring  to  rescue  him,  or  to 
prevent  his  unlawful  arrest,  kills  the  ag- 
gressor, it  is  manslaughter.  Com.  v.  Drew, 
4  Mass.  391. 

584.  In  resisting  trespass.  If,  in  re- 
sisting a  trespass,  the  weapon  and  manner 
of  using  it  were  not  likely  to  kill,  it  will  be 
manslaughter.     Com.  v.  Drew,  supra. 

585.  By  cruelty.  In  New  York,  where  a 
homicide  is  committed  in  a  cruel  and  unu- 
sual manner,  and  in  the  heat  of  passion, 
without  a  design  to  cause  death,  it  is  man- 
slaughter in  the  second  degree.  People  v. 
Johnson,  1  Parker,  291. 

586.  By  killing  unborn  child.  The  will- 
ful killing  of  au  unborn  child  is  not  man- 
slaughter, except  as  rendered  so  by  statute ; 
and  in  New  York,  to  constitute  the  offense, 
the  child  must  have  quickened.  "Where 
therefore,  an  indictment  for  causing  the 
death  of  an  unborn  child  by  an  attempt  to 


produce  a  miscarriage  did  not  allege  that 
the  female  was  pregnant  with  a  quick  child, 
and  there  was  no  evidence  that  the  child 
had  quickened,  it  was  held  error  in  the 
judge  to  charge  the  jury  that  an  abortion  in 
any  stage  of  pregnancy  was  manslaughter  in 
the  second  degree.  Evans  v.  People,  49  N. 
Y.  86. 

587.  Through  ignorance.  Although 
where  a  person  calling  himself  a  physician, 
through  ignorance,  causes  the  death  of  his 
patient  by  grossly  harsh  and  improper  treat- 
ment, he  is  not  in  general  guilty  of  man- 
slaughter (Com.  V.  Thompson,  3  "Wheeler's 
Crim.  Cas.  312),  yet  if  he  have  so  much 
knowledge  of  the  fatal  tendency  of  the  pre- 
scription that  it  may  be  reasonably  presumed 
that  he  administered  the  medicine  from  an 
obstinate,  willful  rashness,  and  not  with  an 
honest  intention  and  expectation  of  effect- 
ing a  cure,  he  is  guilty  of  manslaughter  at 
least,  though  he  might  not  have  intended 
any  bodily  harm  to  the  patient.  Rice  v. 
State,  8  Mo.  561. 

588.  From  omission.  It  is  not  necessary 
that  the  fatal  result  should  have  s^Drung 
from  an  act  of  commission.  If  the  defend- 
ant omitted  any  act  incumbent  upon  him, 
from  which  death  resulted  to  the  deceased, 
where  there  was  no  malice,  it  is  man- 
slaughter; and  if  there  was  malice,  it  is 
murder.  State  v.  Shelledy,  8  Iowa,  477 ; 
State  V.  O'Brien,  3  Vroom  (32  N.  J.)  169. 

589.  Through  recklessness.  Where  one 
fires  a  gun  recklessly  or  heedlessly,  he  will 
not  be  excused  ;  and  his  offense  will  be  at 
least  manslaughter,  though  the  weapon  was 
pointed  in  the  range  of  the  deceased  by  ac- 
cident, with  no  design  or  intention  to  wound 
or  kill.  If  the  act  was  attended  with  prob- 
able mortal  consequences  to  the  deceased, 
or  persons  generally,  the  crime  is  murder  or 
manslaughter,  according  to  the  degree  of  de- 
liberation.    State  V.  Vance,  17  Iowa,  138. 

590.  Where  laudanum  was  administered 
by  a  female  servant,  without  any  deliberate 
or  mischievous  intention,  but  heedlessly  and 
incautiously,  to  an  infant,  causing  its  death, 
it  was  held  manslaughter  only,  although 
given  to  the  child  contrary  to  her  master's 
orders,  and  for  the  purpose  of  enabling  her 


HOMICIDE. 


311 


Manslaughter. 


What  Constitutes. 


Indictment. 


to  carry  on  illicit  intercourse  with  a  man. 
Ann  V.  State,  11  Humph.  150. 

591.  Deaths  caused  by  the  burning  of  a 
steamboat  while  racing,  which  burning  re- 
sulted from  the  making  of  excessive  fires 
for  the  purpose  of  creating  an  enormous 
pressure  of  steam — held  not  to  be  murder, 
but  manslaughter  in  the  first  degree.  Peo- 
ple V.  Sherifl'  of  "Westchester,  1  Parker,  659. 

592.  From  negligence.  On  a  trial  for 
murder,  it  is  not  erroneous  for  the  court  to 
charge  the  jury  that  if  they  found  that  the 
deceased  consented  to  have  sexual  connec- 
tion with  the  defendant  H.,  but  in  conse- 
quence of  her  condition  he  was  unable  to 
effect  a  penetration,  and  she  consented  that 
the  defendants  might  use  artificial  means  to 
perforate  the  hymen,  and  they  did  so,  and 
thereby  gave  her  a  wound  that  caused  her 
death,  though  not  intending  it,  it  would  be 
manslaughter  if  they  were  guilty  of  such 
carelessness  and  negligence  as  endangered 
.her  life  or  personal  safety.  State  v.  Center, 
35  Vt.  378. 

593.  Conditions  printed  on  the  back  of  a 
railroad  ticket  will  not  relieve  the  company 
of  their  liability  under  a  penal  statute  (Genl. 
Stats,  of  Mass.  ch.  63,  §  97),  for  gross  negli- 
gence. Com.  V.  Vt.  and  Mass.  R.  R.  Co.  108 
Mass.  7. 

594.  Where  the  holder  of  a  season  ticket 
on  a  railroad  sells  merchandise  on  the  cars 
upon  the  payment  to  the  company  of  a  con- 
sideration for  the  pri\nlege,  a  portion  of 
which  consideration  consists  in  furnishing 
water  to  passengers,  he  is  a  passenger  and 
not  a  servant,  and  an  indictment  may  be 
maintained  to  recover  a  fine  for  his  death 
through  the  negligence  of  the  servants  or 
agents  of  the  company.     Ibid. 

595.  By  command  of  superior.  On  the 
trial  of  an  indictment  for  manslaughter, 
against  the  master  and  mate  of  a  steamer, 
for  a  loss  of  life  occasioned  by  a  collision, 
it  was  proved  that  both  of  the  defendants 
were  in  the  wheelhouse  previous  to  and  at 
the  time  of  the  occurrence;  and  they  moved 
that  the  court  direct  the  jury  to  return  a 
verdict  of  not  guilty  as  to  the  mate,  on  the 
ground  that  he  must  be  presumed  to  have 
acted  under  the  orders  of  tlie  master.     Held 


that  the  motion  was  properly  denied,  for  the 
reason  that  the  commands  of  the  master 
would  be  no  justification.  State  v.  Sutton, 
10  R.  I.  159  ;  s.  c.  2  Green's  Crim.  Reps.  370. 

(b)  Indictment. 

596.  Nature   and  requisites.      In  New 

York,  an  indictment  for  manslaughter  in 
the  common-law  form  is  good,  and  the 
prisoner  may  be  convicted  of  the  offense  in 
any  degree.  People  v.  Butler,  3  Parker, 
377. 

597.  In  New  Hampshire,  although  an  in- 
dictment against  a  railroad  company  for 
negligently  causing  the  death  of  a  person, 
is  governed  by  the  principles  of  the  criminal 
law,  yet  the  proceeding  in  its  main  features 
is  a  civil  action  for  the  recovery  of  damages. 
State  V.  Manchester,  &c.  R.  R.  52  New 
Hamp.  528. 

598.  In  Massachusetts,  under  the  statute 
providing  that  in  case  of  the  loss  of  life  of  a 
passenger  by  the  negligence  of  a  common 
carrier,  a  fine  is  to  be  recovered  to  the  use 
of  the  executor  or  administrator  of  the  de- 
ceased person,  for  the  benefit  of  the  widow 
and  heirs  at  law,  the  indictment  must  al- 
lege that  the  deceased  left  a  widow  and 
child  or  heirs  at  law  (Stat,  of  1840,  §  80), 
Com.  V.  Eastern  R.  R.  Co.  5  Gray,  473, 

599.  Averment  of  place.  An  indictment 
against  a  steamboat  company  for  the  loss  of 
life  of  a  passenger  through  negligence,  al- 
leging that  A.  resided  and  lost  his  life  in 
Boston,  and  that  B. ,  otherwise  called  B,  the 
younger  of  that  name,  of  Boston,  "has 
been  duly  appointed  and  now  is  adminis- 
trator of  said  A,,"  is  sufficient.  Com.  v. 
East  Boston  Ferry  Co,  13  Allen,  589. 

600.  Where  a  statute  imposes  a  fine 
against  common  carriers  for  loss  of  life 
through  negligence,  and  gives  the  fine  to  the 
use  of  the  executor  or  administrator  of  the 
person  killed,  for  the  benefit  of  his  widow 
and  heirs,  the  indictment  must  allege  that 
administration  has  been  taken  out  in  the 
State.     Com.  v.  Sanford,  12  Gray,  174. 

601.  Where  there  are  several  defend- 
ants. In  an  indictment  against  several  for 
manslaughter,  in  stabbing  the  deceased  with 
a  knife,  it  is  proper  to  allege  the  use  of  the 


312 


HOMICIDE. 


Manslaughter. 


Indictment. 


Trial. 


Evidence. 


knife  by  all  who  were  present  aiding  and 
abetting;  and  some  of  the  defendants  may 
be  convicted  of  manslaughter,  and  others 
of  simple  assault.  Com.  v.  Roberts,  108 
Mass.  290. 

602.  Description  of  wound.  An  indict- 
ment for  manslaughter  need  not  particularly 
describe  the  wound.  A  statement  of  its 
general  nature  and  locality,  and  of  the  in- 
strument or  means  by  which  it  was  inflicted, 
is  sufficient ;  as  that  the  death  resulted  from 
one  mortal  wound  given  on  the  left  side  of 
the  head  of  the  deceased,  by  a  blow  with  a 
whipstock.  Com.  v.  Woodward,  102  Mass. 
155. 

603.  Averment  of  death.  Unless  an  in- 
dictment for  manslaughter  alleges  that  the 
death  was  caused  by  the  act  of  the  defend- 
ant, it  will  be  fatally  defective.  State  v. 
Wimberly,  3  McCord,  190. 

604.  Technical  averments.  The  word 
"  feloniously,"  in  an  indictment  for  man- 
slaughter, may  be  rejected  as  surplusage. 
Ibid. 

605.  Under  the  act  of  Congress,  declaring 
that  the  officers  and  others  employed  on  any 
steamboat,  by  whose  "misconduct,  negli- 
gence or  inattention  the  life  or  lives  of  any 
person  or  persons  on  Ijoard  "  shall  be  de- 
stroyed, shall  be  deemed  guilty  of  man- 
slaughter, willful  negligence  or  willful  mis- 
conduct need  not  be  averred  or  proved. 
U.  S.  V.  Warner,  4  McLean,  463. 

((•)    Trial. 

606.  Incase  of  joint  indictment.  Where 
two  persons  are  jointly  indicted,  and  the 
prosecution  intends  to  put  in  evidence  the 
confession  of  one  of  them,  they  should  be 
tried  separately.  Com.  v.  James,  99  Mass. 
438. 

{d)  Ei-idence.      y 

607.  Essential  to  conviction.  Although, 
when  a  homicide  is  proved  to  have  been 
committed  by  the  prisoner,  the  law,  in  the 
absence  of  any  jiroper  explanation,  treats  the 
crime  as  murder,  yet  manslaughter  can  only 
be  established  by  testimony.  Therefore,  a 
verdict  of  manslaughter,  without  proof  of 
anv  of  the  facts  and  circumstances  of  the 


killing,  is  erroneous.  Hague  v.  State,  34 
Miss.  616. 

608.  Nature  of  act.  On  the  trial  of  an 
indictment  which  alleges  that  the  killing 
was  willful,  it  is  not  necessaiy  to  prove  that 
allegation.  When  there  is  any  evidence 
which,  if  believed,  will  warrant  the  jury  in 
finding  that  the  defendant  acted  under  ap- 
prehension of  bodily  harm,  though  it  comes 
from  the  defendant  alone,  and  is  in  conflict 
with  all  the  other  evidence  in  the  case,  he  is 
entitled  to  testify  that  he  did  in  fact  act 
under  such  an  apprehension.  Com.  v.  Wood- 
ward, 1C2  Mass.  155.  But  evidence  tending 
to  prove  the  great  muscular  strength  of  the 
deceased,  and  that  he  was  in  the  habit  of 
seizing  persons  in  a  peculiar  manner  by  the 
throat,  is  not  admissible.  Com.  v.  Mead,  12 
Gray,  167. 

609.'  Under  an  indictment  for  manslaugh- 
ter, against  the  master  of  a  steamboat,  in 
causing  the  loss  of  life  by  misconduct,  negli- 
gence, or  inattention,  the  prosecution  need 
not  prove  willful  mismanagement  on  the 
part  of  the  accused.  U.  S.  v.  Farnham,  2 
Blatchf  528. 

610.  On  the  trial  of  an  indictment  for 
manslaughter,  committed  on  board  of  an 
American  vessel  on  the  high  seas,  or  in  a 
foreign  port,  the  prosecution  must  prove 
that  the  vessel  belonged  to  a  citizen  of  the 
United  States.  U.  S.  v.  Imbert,  4  Wash. 
C.  C.  702. 

611.  Proof  of  injury.  An  indictment  for 
manslaughter  charged  that  the  defendant 
struck,  kicked,  beat,  bruised  and  wounded 
the  deceased  in  and  upon  her  head  and 
body,  and  threw  her  upon  the  floor.  The 
proof  was  that  he  struck  her  with  his  open 
hand,  upon  her  cheek,  and  about  her  temple, 
and  that  she  fell  on  the  floor  and  did  not 
speak  afterward.  Held  that  the  variance 
was  not  material.  Com.  v.  McAfee,  108 
Mass.  458. 

612.  Proof  of  passion.  Where  the  homi- 
cide is  claimed  to  have  been  committed  in 
the  heat  of  passion,  the  proper  inquiry  is  not 
whether  the  suspension  of  reason  continued 
down  to  the  moment  the  mortal  blow  was 
given,  but  did  the  prisoner  cool,  or  was 
there  time  for   a   reasonable   man  to  have 


HOMICIDE. 


313 


Manslaughter. 


Evidence. 


cooled,  and  this  must  depend  upon  all  the 
facts  and  circumstances.  State  v.  McCants, 
1  Spear,  R34.  The  question  of  "  cooling 
time  "  is  one  of  law,  to  be  decided  by  the 
court.  State  v.  Moore,  69  N.  C,  267 ;  s.  c.  1 
Green's  Crim.  Reps.  611. 

613.  Where,  in  case  of  mutual  combat,  a 
question  arises  whether  there  has  been  time 
for  excited  passions  to  subside,  the  inquiry 
always  takes  this  form :  Whether  there  was 
suflScient  time  to  cool ;  and  not  whether,  in 
point  of  fact,  the  defendant  remained  in  a 
state  of  anger.    Peojile  v.  Sullivan,  3  Seld.  396. 

614.  Where  an  assault  is  returned  by  the 
person  attacked  with  disproportionate  vio- 
lence, and  the  other,  in  the  transport  of  pas- 
sion and  without  malice,  kills  his  adversary, 
the  proper  inquiry  is  whether  a  sufBcient  time 
had  elapsed  after  the  violent  assault  upon 
him,  and  before  he  gave  the  mortal  wound, 
for  passion  to  subside  and  reason  to  resume 
her  sway.  State  v.  Hoover,  4  Dev.  &  Batt. 
365.  And  see  Nelson  v.  State,  10  Humph. 
518. 

615.  The  following  instruction  was  held 
erroneous,  as  calculated  to  mislead  the  jury 
relative  to  the  proof  required  to  mitigate 
the  offense:  That  if  the  prisoner  and  the 
deceased  engaged  in  a  fight,  neither  having 
a  deadly  weapon  to  be  used  in  the  conflict, 
but  in  the  progress  of  the  combat,  the  pris- 
oner's reason  being  temporarily  dethroned, 
and  acting  on  the  passion  thus  aroused,  he 
slew  the  deceased,  the  killing  would  be 
manslaughter.  Haile  v.  State,  1  Swan,  248. 
And  see  Young  v.  State,  11  Humph.  200. 

616.  Where  an  indictment  against  a  father 
for  killing  his  son,  by  striking  him  on  the 
head  with  a  chisel,  charged  that  the  offense 
was  committed  in  the  heat  of  passion,  and 
without  the  design  of  effecting  death,  it  was 
held  not  competent  to  prove  that  the  ac- 
cused had  previously  been  in  the  habit  of 
striking  his  son  and  knocking  him  down, 
the  question  of  guilty  intent  not  being  in 
the  case.     Albricht  v.  State,  6  Wis.  74. 

617.  Admissions  and  declarations.  On 
a  trial  for  manslaughter  committed  in  effect- 
ing an  aljortion,  it  was  proved  by  a  witness 
that  she  went  to  the  i^risoncr's  place  of 
business ;  that  slie  stated  to  one  D,,  in  the 


prisoner's  presence,  that  she  was  going  to 
see  a  friend  of  hers  who  was  in  trouble  ; 
that  D.  asked  her  what  trouble,  to  which 
she  replied  that  her  friend  was  pregnant; 
and  that  the  prisoner  then  said  that  "  he 
would  relieve  her  friend  for  twenty-five 
dollars."  It  was  further  shown  that  the 
witness  then  went  to  the  residence  of  the 
deceased,  and  that  they  immediately  re- 
turned to  the  prisoner,  and  that  he  thereupon 
operated  on  the  deceased  and  produced  the 
abortion.  Held  proper  to  show  the  conver- 
sation on  the  subject,  but  not  its  details, 
between  the  witness  and  the  deceased.  Hunt 
V.  People,  3  Parker,  509. 

618.  On  the  trial  of  a  husband  and  wife 
for  manslaughter,  persons  who  overheard  a 
private  conversation  between  them  in  rela- 
tion to  the  homicide  may  testify  to  it.  Com. 
V.  Griflan,  110  Mass.  181. 

619.  On  the  trial  of  an  indictment  for 
manslaughter,  in  stabbing  deceased  with  a 
knife,  it  was  held  that  evidence  that  imme- 
diately after  the  assault  on  the  deceased,  the 
exclamation  of  a  third  person  whom  they 
attacked  that  they  had  a  knife,  was  hearsay 
and  inadmissible.  Com.  v.  Roberts,  108 
Mass.  296. 

620.  On  the  trial  of  an  indictment  for 
manslaughter,  the  declarations  of  the  de- 
ceased, uttered  several  hours  after  the  as- 
sault was  committed,  are  not  admissible  as 
evidence  in  favor  of  the  j)risouer.  Com.  v. 
Densmore,  12  Allen,  535. 

621.  Opinion.  On  a  trial  for  manslaugh- 
ter, in  attempting  to  destroy  an  unborn 
child,  a  woman  testified  to  having  been  sent 
for  by  the  defendant  on  the  day  before  the 
deceased  died,  to  wash  her  and  change  her 
clothes;  that  there  were  certain  appearances 
on  the  bed  and  clothing,  and  a  peculiar 
offensive  odor  diflerent  from  any  she  had 
ever  before  noticed,  though  she  had  noticed 
something  like  it.  Ildd  proper  as  tending 
to  show  the  condition  of  the  deceased.  But 
the  same  witness  having,  without  proof  of  a 
minute  examination  of  the  person  of  the 
deceased,  or  any  facts  on  which  she  based 
her  opinion,  or  of  any  knowledge  or  expe- 
rience which  might  enable  her  to  form  an 
opinion,  been  allowed  to  answer  the  follow- 


\u 


HOMICIDE. 


Manslaughter.      Evidence.      Verdict.  Justifiable  Homicide.       In  Self-defense. 


ing  question :  "  Will  you  state  what,  in  your 
opinion,  was  the  matter  with  the  deceased 
at  that  time  ?"  it  was  held  error.  People  v. 
Olmstead,  30  Mich.  431. 

622.  Proof  of  motive.  On  the  trial  of  an 
indictment  for  manslaughter,  it  appeared 
that  the  prisoner  was  a  clerk  of  a  hotel  at 
which  the  deceased  was  a  hoarder,  but  not 
a  lodger  ;  that  the  former,  about  two  o'clock 
in  the  morning,  saw  a  man  who  proved  to 
be  the  deceased,  in  the  act  of  getting  out  of 
a  window  on  the  ground  floor  of  the  hotel ; 
and  that  the  prisoner  fired  at  and  mortally 
wounded  the  deceased.  The  evidence  tended 
to  show  that  the  prisoner  knew  who  the  de- 
ceased was  when  he  fired  at  him ;  that  in  the 
room  into  which  the  window  opened  was  a 
woman  ;  that  for  the  favors  of  this  woman 
the  deceased  and  the  prisoners  were  rivals; 
and  that  the  deceased  was  retiring  from  a 
visit  to  the  woman  when  he  was  shot.  Held 
that  the  prisoner  was  properly  convicted. 
People  V.  Walsh,  43  Cal.  447. 

623.  Where  A.  has  a  grudge  against  B.,  and 
meeting  accidentally  and  quarreling,  B.  at- 
tacks A.  with  a  deadly  weapon,  whereupon  A. 
shoots  B.,  the  motive  cannot  be  referred  to  the 
previous  grudge.  State  v.  Johnson,  2  Jones, 
247;  State  v.  Ta-Cha-Na-Tah,  64  N.  C.  614. 

624.  Burden  of  proof.  On  a  trial  for 
manslaughter,  the  court  charged  the  jury 
that  if  they  were  convinced  beyond  a  reason- 
able doubt  that  the  death  of  the  person  killed 
was  occasioned  by  the  shot  fired  by  the 
prisoner,  then  the  prosecuticm  had  made  out 
the  killing  in  the  manner  charged  in  the 
indictment ;  that  all  killing  was  presumed  to 
be  unlawful ;  and  that  when  the  fact  of  the 
killing  was  established,  it  devolved  on  the 
party  who  committed  the  act  to  justify  it. 
Held  error;  that  the  jury  should  have  been 
instructed  in  substance  that  ujion  all  the 
evidence  they  must  find,  beyond  a  reasonable 
doubt,  that  the  crime  charged  was  commit- 
ted by  the  prisoner,  in  order  to  warrant  his 
being  found  guilty.  State  v.  Patterson,  45 
Vt.  308 ;  s.  c.  1  Green's  Crim.  Reps.  490  ; 
approving  State  v.  McDonnell,  32  Vt.  538. 

(e)    Verdict. 

625.  In  case  of  proof  of  higher  offense. 


Wliere,  under  an  indictment  for  manslaugh- 
ter, it  appears  that  the  offense  was  murder, 
the  prisoner  may,  notwithstanding,  be  found 
guilty  of  manslaughter.  Com.  v.  McPike, 
3  Cush.  181. 

626.  Is  not  restricted.  The  following 
instruction  was  held  erroneous:  "  If  you 
find  the  defendant  guilty  of  manslaughter, 
it  must  be  of  voluntary  manslaughter.  Your 
verdict  must  find  the  defendant  guilty  of 
murder,  of  voluntary  manslaughter,  or  not 
guilty."     Holder  v.  State,  5  Ga.  441. 

627.  Effect.  A  verdict  of  guilty  of  man- 
slaughter on  a  trial  for  murder,  operates  as 
an  acquital  of  every  crime  of  a  higher  grade 
of  which  the  prisoner  might  have  been  con- 
victed under  the  indictment.  Reynolds  v. 
State,  1  Kelly,  222 ;  Hunt  v.  State,  23  Ala. 
44;  People  v.  Knapp,  26  Mich.  112;  s.  c.  1 
Green's  Crim.  Reps.  252. 

628.  A  person  was  indicted  for  murder, 
and  found  guilty  of  manslaughter,  and  the 
indictment  afterward  quashed.  The  statute 
of  limitations  having  become  a  bar  to  an  in- 
dictment for  manslaughter,  it  was  held  that 
the  prisoner  must  be  discharged.  Campbell 
V.  State,  23  Ala.  44. 

3.  Justifiable  homicide. 
{a)  In  self-defense.    »  . 

629.  Must  have  been  overt  act.  To  jus- 
tify a  homicide,  it  is  not  sufficient  that  the 
deceased  had  the  means  at  hand  to  effect  a 
deadly  purpose,  but  he  must  have  indicated, 
by  some  act  at  the  time  of  the  killing,  a 
present  intention  to  carry  out  such  purpose. 
A  mere  trespass  would  not  indicate  such  an 
intention.  Harrison  v.  State,  24  Ala.  67; 
Harris  v.  State,  47  Miss.  318;  s.  c.  1  Green's 
Crim.  Reps.  001. 

630.  Although  A.  has  reasonable  grounds 
to  believe,  and  does  believe,  that  B.  intends 
to  kill  him  the  first  time  they  meet,  and  they 
afterward  meet  armed,  and  near  enough  for 
B.  to  carry  out  his  intention  ;  yet,  if  B.  then 
makes  no  demonstration  of  carrying  out  his 
intention,  A.  will  not  be  justified  in  kill- 
ing him;  and  if  B.  makes  such  demonstra- 
tion, but  with  means  and  under  circum- 
stances such  as  to  render  it  obviously  un- 
necessary for  A.  to  take  his  life  in  order  to 


HOMICIDE. 


315 


Justifiable  Homicide. 


In  Self-defense. 


protect  himself,  A.  will  not  be  justified  in 
killing  him.  Hinton  v.  State,  24  Texas, 
454. 

631.  It  is  not  enough  to  excuse  a  homicide, 
that  the  defendant  honestly  believed  that 
his  own  life  was  in  danger,  or  that  he  was  in 
danger  of  great  bodily  harm  jfrom  the  de- 
ceased at  some  future  time;  but  he  must 
have  believed  that  the  danger  was  imminent 
at  the  time.  There  must  have  been  words 
or  overt  acts  at  the  time  clearly  indicative  of 
a  present  purpose  on  the  part  of  the  de- 
ceased to  take  his  life,  or  do  him  great 
bodily  harm.  Williams  v.  State,  3  Heisk. 
376;  s.  c.  1  Green's  Crim.  Eejis.  255. 

632.  To  excuse  a  homicide  on  the  ground 
of  self-defense,  the  danger  of  death  or  great 
bodily  harm  must  either  be  real  or  honestly 
believed  to  be  so  at  the  time,  and  upon  suf- 
ficient grounds.  Previous  threats,  or  even 
acts  of  hostility,  however  violent,  will  not 
of  themselves  excuse  the  slayer;  but  there 
must  be  words  or  overt  acts  at  the  time  in- 
dicative of  a  present  purpose  to  do  the  in- 
jury.    Rippy  V.  State,  3  Head,  217. 

633.  Fear,  though  grounded  upon  the  fact 
that  one  lies  in  wait  to  take  a  party's  life,  or 
upon  the  threats  of  a  desj^erate  and  deter- 
mined enemy,  will  not,  in  the  absence  of 
actual  danger  at  the  time,  justify  the  party 
so  endangered  or  threatened,  in  killing  his 
adversary.  But  when  threats  have  been  ac- 
companied by  an  attempt  to  kill,  and  the 
party  in  danger  believes,  and  has  the  right 
to  believe,  that  he  can  escape  in  no  other 
way  except  by  killing  his  foe,  he  is  not 
obliged,  when  he  casually  meets  him,  to  fly 
for  safety,  nor  to  await  his  attack.  Bohan- 
non  V.  Com.  8  Bush,  481. 

634.  On  a  trial  for  murder,  it  was  proved 
that  the  deceased  had  threatened  to  take  the 
life  of  the  defendant,  and  that  these  threats 
were  communicated  to  the  latter  previous  to 
the  killing;  but  it  did  not  appear  that  the 
threats  were  followed  by  any  overt  act. 
Held  that  the  mere  apprehension  of  danger 
was  not  sufficient  to  justify  the  homicide. 
People  V.  Lombard,  17  Cal.  316. 

635.  The  mere  belief  that  a  person  has 
formed  a  design  to  take  my  life,  without 
some  positive  act  on  his  part,  will  not  justify 


me  in  taking  his  life.  State  v.  Bradley,  6 
La.  An.  554 ;  State  v.  Mullen,  14  lb.  570 ; 
State  V.  Swift,  lb.  827.  But  if  there  be  an 
actual  physical  attack  of  such  a  nature  as 
to  afford  reasonable  ground  to  believe  that 
the  design  is  to  destroy  life,  or  to  commit  a 
felony  upon  the  person  assaulted,  the  killing 
of  the  assailant  will  be  justifiable  homicide 
in  self-defense.  State  v.  Chandler,  5  La. 
An.  489. 

636.  To  excuse  a  homicide  on  the  ground 
of  self-defense,  the  apprehensions  of  the  ac- 
cused must  have  been  excited  by  an  actual 
assault.  Held,  therefore,  not  error  to  refuse  to 
charge  that  "if  the  defendant  had  a  reason- 
able ground  to  believe,  from  appearances, 
that  his  life  was  then  and  there  in  danger, 
and  killed  the  deceased  to  save  his  own  life, 
he  is  justified,  although  he  was  not  then  at-  I 
tacked."     State  v.  King,  22  La.  An.  454.  \ 

637.  Must  have  been  apparent  dangefT 
Whether  a  person  attacked  by  another  is 
justified  in  employing,  in  the  first  instance, 
such  means  of  resistance  as  to  produce  death 
will  depend  upon  the  nature  of  the  attack 
and  the  circumstances  under  which  it  was 
committed.  Young  v.  State,  11  Humph. 
200.  Where  the  prisoner  did  nothing  more 
than  defend  herself  against  a  violent  assault 
with  a  hickory  stick  three  and  a  half  feet 
long,  and  between  three  and  four  inches 
thick,  it  was  held  that  the  killing  was  justi- 
fiable. Copeland  v.  State,  7  Humph.  479. 
But  where  the  prisoner,  upon  being  attacked 
by  the  deceased  in  the  street,  instantly  stab- 
bed him  in  five  places,  and  it  was  not  shown 
that  when  the  prisoner  inflicted  the  mortal 
wounds  he  was  in  danger  of  great  bodily 
harm,  or  that  he  had  a  reasonable  apprehen- 
sion of  such  danger,  it  was  held  that  the 
homicide  was  not  excusable.  Stewart  v. 
State,  1  Ohio,  N.  S.  66. 

638.  Rule  in  New  York.  The  law  of 
New  York,  as  interpreted  in  Shorter  v.  Peo- 
ple, 3  Comst.  193,  is,  that  one  who  is  with- 
out fault  himself  when  attacked  by  another 
may  kill  his  assailant,  if  the  circumstances 
are  such  as  to  furnish  reasonable  ground  for 
apprehending  a  design  to  take  his  life  or  to 
do  him  some  great  personal  injury,  and  there 
is  imminent  danger  that  such  desifrn  will  be 


/ 


S\Q 


HOMICIDE. 


Justifiable  Homicide. 


In  Self-defense. 


V 


accomplished,  although  the  appearances 
"were  in  fact  fiilse,  and  there  was  no  such 
dedgu.      Patterson  v.  People,  46  Barb.  625. 

639.  Where  the  evidence  is  offered  to 
show  that  the  prisoner  killed  the  deceased 
in  self-defense,  and  that  he  feared  the  de- 
ceased intended  to  attack  him,  the  rule  is 
that  the  prisoner  must  have  liad.  reasonable 
ground  for  believing  the  deceased  intended 
to  take  his  life  or  to  do  him  bodily  harm,  and 
that  there  was  reasonable  ground  for  suppos- 
ing the  danger  imminent  that  such  design 
would  be  accomplished,  although  it  should 
afterward  appear  that  no  such  design  existed. 
People  V.  Lamb,  54  Barb.  342 ;  2  Keyes,  360. 

640.  To  justify  a  person  in  killing  another 
in  self-defense,  the  person  must  have  been 
attacked,  and.  have  reasonable  ground  to 
suppose  that  the  object  of  the  attack  was  to 
kill  him  or  to  do  him  great  bodily  harm, 
and  he  should  have  been  unable  to  withdraw 
himself  from  this  imminent  danger,  and 
therefore  have  been  compelled  to  kill  his 
assailant  to  protect  himself.  A  man  will  not, 
liowever,  be  responsible  for  a  mistake  in  sup- 
jjosing  a  deadly  design  which  does  not 
exist.  But  he  must  be  actually  assailed,  and 
show  reasonable  ground  for  supposing  that 
his  only  resource  is  to  kill  his  assailant. 
People  V.  Cole,  4  Parker,  35. 

641.  On  a  trial  for  murder,  a  charge  to 
the  jury  that  if  they  found  that  the  prisoner 
was  justified  in  defending  himself,  and  car- 
ried that  protection  further  than  was  neces- 
saiy  for  his  defense,  he  was  guilty  of  man- 
slaughter, was  held  erroneous,  the  true 
-(Question  for  the  jury  being,   whether  the 

-prisoner  had  reasonable  ground  to  believe 
himself  in  danger  of  great  bodily  harm  or 
loss  of  life,  and  not  whether  such  danger 
actually  existed.  Uhl  v.  People,  5  Parker, 
410. 

642.  Where  it  was  proved  on  the  trial 
that  the  accused  was  followed  in  the  night 
by  an  excited  mob,  threatening  his  life ;  that 
he  was  near  sighted,  and  while  trying  to  get 
away  he  was  seized  by  an  officer,  whom, 
after  telling  to  let  go,  and  the  officer's  re- 
fusal to  do  so,  he  shot  and  killed ;  and  the 
only  proof  that  the  officer  was  known  to  be 
such  was  the  fact  that  he  had  on  his  uni- 


form, it  was  held  that  the  evidence  was  in- 
sufficient to  sustain  a  conviction  for  murder. 
Yates  V.  People,  32  K  Y.  500. 

643.  In  Pennslyvania.  To  excuse  homi- 
cide on  the  ground  of  self-defense,  it  must 
appear  that  the  slayer  has  no  other  possible, 
or  at  least  probable  means  of  escaping,  and 
that  his  act  was  one  of  necessity.  To  justify 
the  killing  of  an  assailant,  it  must  be  done 
under  a  reasonable  apprehension  of  loss  of 
life  or  of  great  bodily  harm,  and  the  danger 
must  appear  so  imminent  at  the  moment  of 
the  assault  as  to  present  no  alternative  of 
escaping  its  consequences  but  by  resistance. 
Then  the  killing  may  be  excusable,  even  if 
it  turn  out  afterward  that  there  was  no 
actual  danger.  Logue  v.  Com.  38  Penn.  St. 
265.  If  the  assailant's  object  appears  to  be 
only  to  commit  an  ordinary  assault  and 
battery,  it  requires  a  great  disparity  of  size 
and  strength  on  the  part  of  the  slayer,  and 
a  very  violent  attack  on  the  part  of  his  as- 
sailant, to  excuse  the  taking  of  the  assail- 
ant's life  with  a  deadly  weajjon.  Com.  v. 
Drum,  58  lb.  9. 

644.  In  Missouri.  To  justify  a  homicide, 
the  defendant  must  have  good  grounds  to 
apprehend  immediate  danger.  State  v. 
O'Connor,  31  Mo.  389.  When  a  person  ap- 
prehends that  some  one  is  about  to  do  him 
great  bodily  harm,  and  there  is  reasonable 
ground  for  believing  the  danger  imminent, 
he  may  kill  his  assailant,  if  that  be  necessary 
to  avoid  the  apprehended  danger,  and  the 
killing  will  be  justifiable,  although  it  may 
afterward  turn  out  that  the  appearances 
were  false.  State  v.  Sloan,  47  Mo.  604;  State  V 

V.  Keane,  50  lb.  357.  ^^' 

645.  But  evidence  that  the  deceased  was  a 
dangerous,  vindictive  man,  and  had  threat- 
ened the  defendant,  without  .proof  that  he 
had  so  conducted  as  to  cause  a  well- 
grounded  belief  in  the  mind  of  the  defend- 
ant of  imminent  bodily  danger,  will  not 
excuse  the  homicide.  State  v.  Harris,  59 
Mo.  550. 

646.  In  Kentucky.  A  reasonable  belief 
on  the  part  of  the  defendant  that  the  person 
wounded  or  killed  by  him  intended  to  do 
him  bodily  harm  will  excuse  the  act  on  the 
ground  of  self-defense.     Eapp  v.    Com.    11 


r 


HOMICIDE. 


317 


Justifiable  Homicide. 


In  Self-defense. 


B.  Mon.  614;  Meredith  v.  Com.  18  lb.  49; 
Payne  v.  Com.  1  Mete.  Ky.  370.  There 
need  not  have  been  actual  impending 
danger.  If  the  defendant  believed,  and 
had  reasonable  ground  to  believe,  that  there 
was  immediate  impending  danger,  and  bad 
no  other  apparent  and  safe  means  of  escape, 
he  had  a  right  to  strike,  although  the  sup- 
posed danger  may  not  have  existed.  CoiF- 
man  v.  Com.  10  Bush,  495.  It  is  the  same 
in  Texas.  Munden  v.  State,  37  Texas,  353. 
But  a  sudden  heat  and  passion  produced  by 
mere  words,  or  any  similar  provocation,  will 
not  excuse.     Wilson  v.  Com.  3  Bush,  105. 

647.  A  homicide  occurring  in  a  personal 
conflict  held  excusable  where,  although  the 
defendant  had  no  apprehension  of  serious 
injury  from  deceased  when  he  agreed  to 
fight  him,  yet,  during  the  fight,  something 
occurred  to  create  a  reasonable  belief  that 
he  was  then  in  danger  of  death  or  great 
bodily  harm  from  deceased,  and  on  account 
of  such  fear  stabbed  and  killed  him.  Berry 
V.  Com.  10  Bush,  Ky.  15. 

648.  If  A.  has  reason  to  apprehend,  and 
does  apprehend,  that  B.  will  shoot  him  un- 
less he  can  run  away  or  shoot  B.  first,  the 
law  does  not  require  A.  to  run,  and  perhaps 
be  shot.  And  if  A.  believed  that  B.  was 
drawing  out  a  pistol  to  shoot  him,  the  fact 
afterward  developed  that  B.  had  then  no 
pistol,  but  was  only  maneuvering  to  make 
him  run,  will  not  make  A.  culpable  for 
doing  what  he  had  good  reason  to  believe 
was  necessary  for  the  security  of  his  life. 
Phillips  V.  Com.  3  Duvall,  Ky.  328 ;  Smaltz 
V.  Com.  3  Bush,  Ky.  32 ;  Young  v.  Com.  6 
lb.  312  ;  Carico  v.  Com.  7  lb.  124.  See  Bo- 
hannon  v.  Com.  8  lb.  481. 

649.  In  Tennessee.  Where  a  person  who 
is  in  no  great  danger  of  bodily  harm,  through 
fear,  alarm,  or  cowardice,  kills  another  un- 
der the  impression  that  great  bodily  injury 
is  about  to  be  inflicted  upon  him,  he  will 
not  be  guilty  of  manslaughter,  nor  of  murder, 
but  it  will  be  self-defense.  Grainger  v. 
State,  5  Yerg.  459. 

650.  In  Louisiana,  The  court  declined 
to  charge  the  jury  that  a  person  believing 
his  life  to  be  assailed,  and  in  immediate 
danger  from  another,  is  excusable  in  resist- 


ing and  killing  a  third  person  who  inter- 
feres to  disarm  him  forcibly,  with  a  view  to 
bring  about  a  fight  between  the  other  two 
without  weapons,  after  being  warned  to 
stand  off.  Held  that  such  refusal  of  the 
court  was  proper,  for  the  reason  that  the  in- 
strucrion  asked  made  the  party's  justifica- 
tion depend  upon  his  mere  belief  of  danger^ 
and  not  upon  a  reasonable  ground  for  such 
belief,  and  also  for  the  reason  that  it  did  not 
present  the  case  of  a  third  person,  confeder- 
ating with  the  first  assailant,  or  aiding  him 
to  make  a  dangerous  assault  upon  the  ac- 
cused.    State  V.  Chopin,  10  La.  An.  458. 

651.  In  Michigan.  The  necessity  for  tak- 
ing life,  in  order  to  excuse  or  justify  the 
slayer,  need  not  arise  out  of  actual  and  im- 
minent danger,  but  he  may  act  upon  a  belief 
from  appearances  which  give  him  reasonable 
cause  for  it,  that  the  danger  is  actual  and 
imminent,  although  it  may  turn  out  that  he 
was  mistaken.  Pond  v.  People,  8  Mich.  150 ; 
Patten  v.  People,  18  lb.  314;  Hurd  v.  Peo- 
ple, 25  lb.  405. 

652.  In  Minnesota.  To  justify  a  killing 
on  the  ground  of  self-defense,  it  is  not 
enough  that  the  defendant  believed  him- 
self in  danger,  unless  the  facts  and  cir- 
cumstances wei'e  such  that  the  jury  can  say 
he  had  reaso'iable  grounds  for  his  belief. 
State  V.  Shippey,  10  Minn.  223. 

653.  In  Iowa.  If,  under  the  circum- 
stances, there  was  no  reason  for  the  belief 
by  the  defendant  that  his  person  was  in 
danger  of  death  or  great  bodily  harm,  he 
cannot  lawfully  take  the  life  of  his  assailant. 
State  V.  Thompson,  9  Iowa,  188.  But,  in 
order  to  justify  a  homicide  on  the  ground 
of  self-defense,  it  is  not  necessary  that  the 
danger  should  in  fact  exist,  but  that  there 
be  actual  and  real  danger  to  the  defendant's 
comprehension  as  a  reasonable  man.  State 
V.  Collins,  32  Iowa,  3G. 

654.  A  party  may  re[)el  force  by  force  in 
defense  of  his  person,  habitation  or  property, 
against  one  who  manifestly  intends,  or  en- 
deavors by  violence  or  surprise,  to  commit 
a  felony  on  either;  and  if  a  conflict  ensues, 
and  he  takes  life,  the  killing  is  justifiable. 
State  V.  Thompson,  9  Iowa,  188;  bat  not  if 
the  assault  is  not  felonious,  and  there  is  no 


318 


HOMICIDE. 


Justifiable  Homicide. 


In  Self-defense. 


reason  for  a  belief  on  the  part  of  the  person 
assailed  that  the  danger  is  actual.  State  v. 
Kennedy,  20  lb.  569.  An  instruction  held 
erroneous  which  omitted  to  give  the  defend- 
ant the  benefit  of  the  plea  of  self-defense,  if 
he  took  his  assailant's  life  to  save  himself 
from  imminent  and  enormous  bodily  injury 
felonious  in  its  character.  State  v.  Benham, 
23  lb.  154;  State  v.  Burke,  30  lb.  331. 

655.  In  North  Carolina.  One  who  has 
reasonable  ground  to  believe  that  there  is  a 
design  to  destroy  life,  to  rob,  or  commit  a 
felony,  will  be  justified  in  killing  the  ofi"ender 
to  arrest  such  design.  State  v.  Harris,  1 
Jones,  190. 

656.  But  the  belief  that  another  intends 
to  take  my  life  will  not  justify  my  killing 
him,  unless  he  is  making  some  attempt  to 
carry  out  his  design,  or  is  in  an  apparent 
situation  to  do  so,  and  thereby  causes  me  to 
think  that  he  intends  to  do  it  immediately. 
Where,  therefore,  the  deceased  having 
threatened  the  prisoner's  life  about  three 
weeks  before,  sought  a  fight  with  the  prisoner, 
without  weapons,  in  a  public  street,  on  a 
starlight  night,  and  the  latter  drew  his 
knife  without  notice  to  the  deceased,  and 
inflicted  upon  him  a  mortal  wound,  it  was 
held  murder.     State  v.  Scott,  4  Ired.  409. 

657.  In  Alabama.  Where  a  person  has  a 
reasonable  belief  of  great  personal  injury,  he 
may  protect  himself  from  violence  even  at 
the  expense  of  his  assailant's  life,  when 
necessary.  Holmes  v.  State,  23  Ala.  17. 
But  in  order  to  justify  a  homicide  there 
must  be,  on  the  part  of  the  slayer,  either  an 
actual  necessity  to  kill  to  prevent  the  com- 
mission of  a  felony  or  great  bodily  harm,  or 
a  reasonable  belief  that  such  necessity  exists. 
Noles  V.  State,  26  lb.  31 ;  Taylor  v.  State, 
48  lb.  180. 

658.  Though  every  citizen  may  resist  at- 
tempts upon  his  liberty  by  illegal  restraint, 
the  resistance  must  not  be  in  great  dispro- 
portion to  the  injury  threatened.  He  has 
no  right  to  kill  to  prevent  a  trespass,  unless 
accompanied  by  extreme  danger  of  bodily 
harm,  or  which  does  not  produce  a  reason- 
able belief  of  such  danger.  Noles  v.  State, 
supra. 

659.  On  a  trial  for  murder,  the  prisoner 


asked  the  court  to  charge  "  that  if  the  jury 
were  satisfied  from  the  evidence  there  was  a 
reasonable  belief  in  the  prisoner's  mind  of 
some  great  bodily  harm  from  the  deceased," 
or  "  that  he  had  reasonable  ground  to  believe 
that  he  was  in  clanger  of  great  bodily  harm 
from  the  deceased,  whether  it  actually  ex- 
isted or  not,  the  killing  would  be  excusable." 
The  court  refused  to  give  the  charge,  "  ex- 
cept with  the  qualification  that,  if  the  dan- 
ger a^jpeared  to  be  imminent  or  threatening, 
the  prisoner  would  be  excused."  Held,  that 
neither  the  refusal  of  the  charge  as  asked, 
nor  the  qualification  added  to  it,  was  erro- 
neous.    Dupree  v.  State,  33  Ala.  380. 

660.  In  Mississippi.  The  mere  fear  or 
belief,  however  sincerely  entertained  by  one 
man  that  another  designs  to  take  his  life, 
will  not  excuse  or  justify  the  killing  of  the 
latter  by  the  former.  Where  the  danger  is  ■ 
neither  real  nor  urgent,  to  render  a  homicide 
excusable  or  justifiable,  there  must  be  some 
attempt  to  execute  the  apprehended  design, 
or  there  must  be  reasonable  ground  for  the 
belief  that  such  design  will  be  executed,  and 
the  danger  imminent.  Wesley  v.  State,  37 
Miss.  337;  Evans  v.  State,  44  lb.  762;  Head 
V.  State,  lb.  731. 

661.  In  California.     A  person  may  defend       / 
himself  by  taking  life,  whether  his  danger  -^J 
be  real  or  not,  if  the  danger  be  apparently       ■ 
so  imminent  and  pressing  that  a  prudent 
man  might  suppose  himself  in  such  peril  as 

to  deem  the  taking  of  the  life  of  his  assail- 
ant necessary  for  self-preservation.  People 
V.  Campbell,  30  Cal.  312.  In  such  case  the 
use  of  a  deadly  weapon  by  the  person  as- 
sailed, superior  to  the  weapon  possessed  by 
the  assailant,  would  not  be  evidence  of 
malice;  and  the  act  done  in  self-defense 
would  be  justified,  although  the  intent  to 
take  the  life  of  the  assailant  as  a  necessity 
preceded  the  act  which  resulted  in  his  death. 
People  V.  Barry,  31  lb.  357. 

662.  In  Virginia.  To  render  a  killing 
justifiable  on  the  ground  of  self-defense,  the 
act  done  or  threatened  must  be  of  such 
a  character  as  to  afibrd  a  reasonable  ground 
for  believing  there  is  a  design  to  commit  a 
felony,  or  to  do  some  serious  bodily  harm, 
and    danger  of  carrving  such  design  into 


HOMICIDE. 


319 


Justifiable  Homicide. 


In  Self-defense. 


immediate  execution.     Stoneman  v.  Com,  25 
Gratt.  887. 

663.  In  Illinois.  Actual  danger  is  not 
indispensable  to  justify  self-defense, but  only 
a  reasonable  and  well  grounded  belief  of 
losing  life  or  suffering  great  bodily  harm. 
Campbell  v.  People,  16  111.  17 ;  Hopkinson 
V.  People,  18  lb.  264;  Schnier  v.  People,  23 
lb.  17  ;  Maher  v.  People,  24  lb.  241  ;  Adams 
V.  People,  47  lb.  376.  An  instruction  that, 
to  justify  killing  in  self-defense,  there  must 
have  been  a  reasonable  belief  in  the  mind  of 
the  defendant  of  "  the  most  serious  bodily 
harm,"  is  erroneous;  an  apprehension  of 
great  bodily  harm  being  suificient.  Reins 
V.  People,  30  lb.  256. 

664.  In  "Wisconsin.  To  justify  the  kill- 
ing of  another  on  the  ground  of  self-defense, 
it  is  sufficient  that  the  appearances  of  the 
attack  upon  the  defendant,  made  or  threat- 
ened by  the  deceased,  were  such  as  to  give 
the  defendant  reason  to  apprehend  a  design 
to  do  him  some  great  personal  injury,  and 
that  there  was  imminent  danger  of  such  de- 
sign being  accomplished.  State  v.  Martin, 
30  Wis.  216. 

665.  In  Kansas.  To  render  a  homicide 
justifiable  self-defense,  the  prisoner  must 
have  had  a  reasonable  ground  to  believe 
that  the  deceased  intended  to  kill  him ;  and 
there  must  have  been  some  attempt  to  exe- 
cute such  a  design ;  or  the  deceased  must 
have  been  in  an  apparent  situation  to  do  so, 
and  thus  have  induced  a  reasonable  belief 
that  he  intended  to  do  it  immediately. 
State  V.  Home,  9  Kansas,  119 ;  s.  c.  1  Green's 
Crim.  Rej^s.  718.  The  defendant  need  not 
prove  that  the  deceased  actually  had  a 
deadly  weapon,  but  only  that  the  defendant 
had  reason  to  believe  that  he  had  one. 
State  V.  Potter,  13  Kansas,  414. 

666.  In  Nevada.  In  order  to  justify 
homicide,  it  must  appear  to  the  defendant's 
comprehension  as  a  reasonable  man,  that  he 
was  actually  in  danger  of  his  life,  or  of  re- 
ceiving great  bodily  harm,  and  that  to  avoid 
such  danger  it  was  absolutely  necessary  for 
him  to  take  the  life  of  the  deceased.  State 
V.  Ferguson,  9  Nev.  106 ;  State  v.  Hall,  lb. 
58;  State  v.  Stewart,  lb.  120. 

667.  In  Oregon.      Where   a    person   has 


reasonable  ground  to  believe  that  he  is  in 
danger  of  being  killed,  or  of  great  bodily 
harm  from  another,  and  acting  on  such  be- 
lief kills  the  other,  he  is  excusable;  and  he 
is  not  required  to  wait  until  an  assault  was 
actually  committed.  Goodall  v.  State,  1 
Oregon,  333  ;  State  v.  Conolly,   3  lb.  69. 

668.  Attack  may  be  anticipated.  A  per- 
son interposing  the  plea  of  self-defense  need 
not  show  that  the  danger  was  immediate 
and  impending  at  the  very  moment  of  kill- 
ing. He  may  anticipate  the  attack  of  his 
antagonist,  if  necessary  for  his  own  protec- 
tion.    Cotton  V.  State,  31  Miss.  504. 

669.  It  is  erroneous  to  charge  the  jury 
that  if  death  resulted  from  the  use  of  a 
deadly  weapon  by  the  defendant,  though  to 
repel  an  attack  made  by  the  deceased  upon 
the  defendant  which  endangered  his  life,  or 
which  would  have  resulted  in  great  bodily 
hanii  to  him,  the  homicide,  though  it  might 
be  reduced  to  manslaughter,  would  never- 
theless be  criminal.  Kingen  v.  State,  45 
Ind.  519. 

670.  A  charge  that  "if  the  jury  believe 
from  the  evidence,  that  the  defendant  killed 
the  deceased  by  shooting  him  with  a  pistol, 
the  law  presumes  it  was  done  with  malice," 
when  the  evidence  tended  to  show  that  the 
pistol  was  used  in  self-defense,  is  erroneous. 
Martin  v.  State,  47  Ala.  564. 

671.  On  a  trial  for  murder,  held  that  the 
following  instruction  Avhich  was  asked  and 
refused,  should  have  been  given  :  "  If  the 
blows  which  caused  the  death  of  the  de- 
ceased were  given  in  self-defense,  and  other 
blows  were  afterward  given  which  were  not 
given  in  self-defense,  not  mortal,  you  should 
find  the  defendant  not  guilty."  Miller  v. 
State,  37  Ind.  432. 

672.  Defendant  must  not  have  been  to 
blame.  The  necessity  that  will  justify  the 
slaying  of  another  in  self-defense,  must  not 
not  have  been  occasioned  by  the  slayer. 
Vaiden  v.  Com.  12  Gratt.  717. 

673.  A  party  who  seeks  and  brings  on  a 
difficulty  cannot  avail  himself  of  the  rights 
of  self-defense  in  order  to  shield  himself 
from  the  consequences  of  killing  his  adver- 
sary, however  imminent  the  danger  in  which 
he  may  have  found  himself  in  the  progress 


V20 


HOMICIDE. 


Justifiable  Homicide. 


In  Self-defense. 


of  the  affray.  State  v.  Underwood,  57  Mo. 
40  ;  State  v.  Linney,  53  lb.  40  ;  s.  c.  1-  Green's 
Crim.  Reps.  753. 

674.  When  it  is  proved  on  a  trial  for 
murder,  that  the  prisoner  sought  the  de- 
ceased -with  a  loaded  gun,  with  the  view  of 
provoking  a  difficulty,  and  that  a  difficulty 
ensued,  he  cannot  Avithout  some  proof  of 
change  of  conduct  or  action,  excuse  the 
homicide  on  the  ground  that  the  deceased 
fired  the  first  shot.  State  v.  Neeley,  20 
Iowa,  108 ;  State  v.  Stanley,  33  lb.  526. 
See  State  v.  Benham,  28  lb.  154.  When, 
however,  he  has  wholly  withdrawn  from  the 
conflict,  he  is  again  remitted  to  his  right  of 
self-defense,  and  may  oppose  force  to  force, 
even  to  the  taking  of  the  life  of  his  adver- 
sary.    Stofter  V.  State,  15  Ohio,  N.  S.  47. 

675.  A  homicide,  even  if  committed  upon 
sudden  combat,  is  not  excusable'^'lf  undue 
advantage  was  taken  of  the  deceased.  Peo- 
ple V.  Perdue,  49  Cal.  425.  But  although  a 
person  goes  into  a  fight  voluntarily,  yet  if 
he  is  driven  to  the  wall  so  that  he  must  he 
killed  or  sustain  great  bodily  harm  unless 
he  kills  his  adversary,  which  hcvdoes,  it  is 
excusable  homicide.  State  v.  "Ingold,  4 
Jones,  216.  i 

676.  Duty  of  defendant  to  retreat.  An 
afii'ayer  cannot  excuse  a  homicide  on  the 
ground  of  self-defense,  unless  he  quit  the 
combat  before  the  mortal  blow  is  given,  if 
he  could  safely  do  so,  and  retreated  as  far  as 
he  might  with  safety,  and  then  killed  his 
adversary  to  save  his  own  life.  State  v. 
Hoover,  4  Dev.  &  Batt.  365. 

677.  Before  a  party  assaulted,; can  kill  his 
adversary,  he  must  have  retre^ed  as  far  as 
he  safely  could  to  avoid  the  lissault,  until 
his  further  going  back  was  ;|reveuted  by 
some  impediment,  or  as  far  as  i;he  fierceness 
of  the  assault  permitted.  Vaideu  v.  Com. 
12  Gratt.  717. 

678.  Where  death  ensues  on  a  sudden 
provocation  or  sudd^en  quarrel,  in  order  to 
reduce  the  offense  to  killing  in  self-defense, 
the  prisoner  must  prove,  first,  that  before 
the  mortal  blow  was  given,  he  declined  fur- 
ther combat,  and  had  retreated  as  far  as  he 
could  with  safety,  and  second,  that  he  killed 
the  deceased  throu":h  the  necessity  of  savins: 


his  own  life,  or  to  save  himself  from  great 
bodily  harm     Dock  v.  Com.  21  Gratt.  909. 

679.  Although  it  appear  on  a  trial  for 
murder,  that  the  deceased  made  the  first 
attack  on  the  defendant  with  a  deadly 
weajjon,  yet  if  the  latter  could  reasonably 
have  avoided  killing  his  adversary  without 
certain  and  immediate  danger  of  his  life,  or 
of  great  bodily  injury,  the  homicide  is  not 
excused  as  being  in  self-defense.  But  the 
law  does  not  demand  of  the  defendant  the 
same  coolness  and  judgment  that  can  be 
exercised  by  the  jury.  If  he  had  reason  to 
believe,  and  did  believe  that  he  was  in  dan- 
ger, it  is  sufficient.  U.  S.  v.  Mingo,  2  Cur- 
tis C.  C.  1. 

680.  A  man  who  assails  another  with  a 
deadly  weapon  cannot  kill  his  adversary  in 
self-defense  until  he  has  notified  him  by  his 
conduct  that  he  has  abandoned  the  contest; 
and  if  the  circumstances  are  such  that  he 
cannot  so  notify  him,  it  is  his  fault  and  he 
must  take  the  consequences.  State  v.  Smith, 
10  Nev.  106. 

681.  But  as  retreat  may  be  impossible  or 
perilous,  it  is  not  always  a  condition  which 
must  precede  the  right  of  self-defense. 
Creek  v.  State,  24  Ind.  151.  A  person  is 
not  obliged  to  fiee  from  his  adversary  who 
assails  him  with  a  deadly  weapon,  and  go  to 
the  wall,  before  he  can  justify  killing  his 
assailant.  Tweedy  v.  State,  5  Iowa,  433; 
s.  c.  lb.  334.  If  there  be  no  other  way  of 
saving  his  own  life,  he  may  in  self-defense 
kill  his  assailant,  and  the  killing  will  be 
justifiable.  But  when  the  attack  is  not 
felonious,  the  rule  of  law  is  different.  State 
V.  Thompson,  9  lb.  188. 

682.  Defendant  not  obliged  to  resort  to 
legal  protection.  The  omission  of  a  person 
assailed  to  seek  protection  from  the  author- 
ities does  not  deprive  him  of  the  protection 
of  the  law,  and  he  may  defend  himself  in 
the  same  manner  and  to  the  same  extent  as 
if  he  had  sought  such  protection.  The  fol- 
lowing charge  was  therefore  held  erroneous : 
"If  the  prisoner  believed  that  his  life  or. 
person  was  in  jeopardy  and  peril  by  the 
alleged  repeated  assaults  made  t>y  the  com- 
plainant, it  was  his  duty  to  have  invoked 
the  aid  of  the  authorities  in  saving  him  from 


HOMICIDE. 


321 


Justifiable  Homicide. 


In  Self-defense. 


In  Protecting  Property. 


the  infliction  of  any  wrong,  or  punishing  the 
offender  for  a  wrong  committed.  All  that 
the  prisoner  had  to  do  was  to  make  a  com- 
plaint before  a  magistrate,  and  the  com- 
plainant would  have  been  forced  to  give 
bonds  to  keep  the  peace  to  deter  him  from 
the  commission  of  any  violence."  Evers  v. 
People,  6  N.  Y.  Supm.  N.  S.  81. 

683.  Person  defending  another.  At 
common  law,  if  A.  is  attacked  by  B.  and  in 
urgent  and  immediate  peril  of  his  life,  and 
C.  interposes  to  preserve  the  peace,  or  even 
to  aid  A.,  and  it  is  actually  necessary  to  kill 
B.  to  terminate  the  affray  and  save  the  life 
of  A.,  a  third  party  will  be  excused  for  kill- 
ing him.  This  principle  is  preserved  in  the 
statute  of  New  York.  Where  in  such  case 
the  interference  is  unnecessary,  the  offense 
is  manslaughter.  People  v.  Cole,  4  Parker, 
3.5. 

684.  Where  in  a  mutual  combat,  A. 
knocked  down  and  beat  B.,  and  C,  Avho 
was  present,  supposing  that  the  life  of  B. 
was  in  danger,  gave  him  a  knife  to  defend 
himself,  and  B.  killed  A,  with  the  knife,  it 
was  held  that  C.  was  justified.  Short  v. 
State,  7  Yerg.  510. 

685.  Nature  of  inquiry.  In  determining 
whether  or  not  a  homicide  was  justifiable, 
the  inquiry  is  whether  there  was  reason- 
able ground  for  the  prisoner  to  apprehend 
great  personal  injury,  and  not  whether  the 
prisoner  did  in  fact  entertain  such  appre- 
hension. People  V.Austin,  1  Parker,  154; 
People  V.  Doe,  1  Manning,  451 ;  Young  v. 
State,  11  Humph.  200;  People  v.  Shorter, 
4  Barb.  460;  s.  c.  2  N.  Y.  193;  contra, 
Grainger  v.  State,  5  Yerg.  459;  Oliver  v. 
State,  17  Ala.  587 ;  Carroll  v.  State,  23  lb.  28. 

(b)  In  protecting  property. 

686.  General  rule.  Although  the  owner 
may  lawfully  resist  a  forcible  trespass,  yet 
he  cannot  lawfully  kill  the  intruder,  unless 
it  is  necessary  to  prevent  a  felonious  de- 
struction of  property,  or  to  defend  himself 
against  loss  of  life  or  great  bodily  harm. 
Carroll  v.  State,  aupra. 

687.  In  California,  under  the  statute 
(Crimes  Act,  §§  29,  30;,  a  homicide  will  be 
justified  only  when  the  entry  into  a  habitation 

21 


is  being  made  in  a  violent,  riotous,  or  tumult- 
uous manner,  for  the  purpose  of  assaulting 
or  offering  violence  to  some  person  therein, 
or  for  the  purpose  of  committing  a  felony 
by  violence  or  injury.  A  bare  fear  of  any 
of  these  offenses  is  not  sufficient  to  justify 
the  killing,  but  it  must  appear  that  the  cir- 
cumstances were  sufficient  to  excite  the  fears 
of  a  reasonable  man,  and  that  the  party  kill- 
ing acted  under  the  influence  of  those  fears. 
People  V.  Walsh,  43  Cal.  447 ;  s.  c.  1  Green's 
Crim.  Reps.  487. 

688.  Defense  of  dwelling.  The  sense  in 
which  a  man's  house  has  a  peculiar  immu- 
nity is,  that  it  is  sacred  for  the  protection  of 
his  person  and  family.  An  assault  on  the 
house  can  be  regarded  as  an  assault  on  the 
person,  only  in  case  the  purpose  of  such 
assault  be  injury  to  the  person  of  the  occu- 
pant or  members  of  his  family;  and  in  order 
to  accomplish  this,  the  assailant  attacks  the 
house  in  order  to  reach  the  inmates.  In  this 
view,  the  inmate  need  not  flee  from  his 
house  in  rorder  to  avoid  injury  from  the 
assailant,  but  may  meet  him  at  the  threshold, 
and  prevent  him  from  breaking  in,  by  any 
means  rendered  necessary  by  the  exigency, 
for  the  same  reason  that  one  may  defend 
himself  from  peril  of  life  or  great  bodily 
harm  by  means  fatal  to  the  assailant,  if 
rendered  necessary  by  the  exigency  of  the 
assault.  State  v.  Patterson,  45  Vt.  308, 
per  Barrett,  J. ;  s.  c.  1  Green's  Crim.  Reps. 
490. 

689.  A  man  is  not  obliged  to  retreat,  if 
assaulted  in  his  dwelling,  but  may  use  such 
means  as  are  absolutely  necessary  to  repel 
the  assailant  from  his  house,  or  to  prevent 
his  forcible  entry,  even  to  taking  life.  It  is 
therefore  error  to  charge  that  the  defendant 
must  have  done  everything  in  his  power  to 
avoid  the  necessity  of  killing  his  assailant. 
Bohannon  v.  Com.  8  Bush,  481 ;  s.  c.  1 
Green's  Crim.  Reps.  613.  He  must  not, 
however,  take  life  if  he  can  otherwise  arrest 
or  repel  the  assailant.  Where  the  assault  or 
breaking  is  felonious,  the  homicide  becomes 
justifiable,  and  not  merely  excusable.  Pond 
V.  People,  8  Mich.  150.  See  Patten  v. 
People,  18  lb.  314 ;  ITurd  v.  People,  25  lb. 
405. 


322 


HOMICIDE. 


Justifiable  Homicide. 


In  Protecting  Property.  In  Prevention  of  Felony. 


690.  The  defendant  was  warned  that  the 
deceased,  the  brother  of  the  latter,  and  an- 
other person,  were  coming  to  his  house  in 
the  night  to  commit  violence,  which  they 
did,  and  broke  in  the  door  and  window ; 
and  while  they  were  in  the  act,  the  prisoner, 
then  in  his  own  house,  struck  the  deceased 
with  the  poker,  from  which  he  died  the  next 
day.  Held  justil5able  homicide.  Brown  v. 
People,  39  111.  407. 

691.  On  a  trial  for  murder  it  appeared 
that  the  defendant,  returning  to  his  house 
about  eleven  o'clock  at  night,  found  it 
fastened  against  him  by  another  man ;  that 
after  asking  several  times  to  have  the  door 
opened,  he  beat  it  down  with  an  axe,  and 
encountered  the  deceased,  who  had  an  axe 
handle  in  his  hand,  with  which  he  struck 
the  defendant  on  the  head ;  and  that  the 
defendant  then  struck  the  deceased  on  the 
head  with  the  axe,  of  which  he  died  about 
two  mouths  afterwards.  Held  excusal)le 
homicide.     De  Forest  v.  State,  21  Ind.  28. 

692.  On  a  trial  for  a  homicide  which  was 
committed  by  the  defendant  in  his  own 
house,  the  court  charged  that  if  the  jury 
found  that  the  deceased  was  lawfully  in  the 
house,  and  had  not  been  ordered  to  leave 
previous  to  the  affray,  that  the  afl'ray  was 
wholly  personal  between  the  defendant  and 
the  deceased,  that  the  defendant  could  only 
be  justified  under  the  same  circumstances 
that  would  justify  him  had  the  afl'ray  not 
occurred  in  his  house,  with  the  exception 
that  the  defendant  would  not  be  obliged  to 
retreat,  but  if  attacked,  might  stand  his 
ground,  and  defend  himself  with  all  the 
force  necessary,  even  to  the  taking  of  life. 
Held  proper.     State  v.  Martin,  30  Wis.  216. 

693.  A  net  house,  thirty-six  feet  from  a 
man's  dwelling,  used  by  him  not  only  for 
preserving  the  nets  which  were  used  in  his 
ordinary  occupation  as  a  fisherman,  but  also 
as  a  permanent  dormitory  for  his  servants, 
though  not  inclosed  with  the  house  by  a 
fence,  is  a  dwelling  which  may  be  protected 
from  felonious  assault,  even  to  the  taking  of 
life.     Pond  v.  People,  8  Mich.  150. 

694.  Intruder  must  not  be  pursued.  The 
right  of  self-defense,  or  defense  of  one's 
family  or  his   habitation,  docs   not   justify 


pursuing  and  killing  the  intruder  or  ag- 
gressor after  he  has  retreated,  and  after  the 
necessity  has  ceased.  State  v.  Conally,  3 
Oregon,  69. 

695.  Defending  right  to  public  prop- 
erty. Where  persons  are  on  an  island  be- 
longing to  the  United  States,  for  the  purpose 
of  collecting  birds'  eggs,  and  others  go  there 
for  the  same  object,  but  are  forcibly  pre- 
vented from  landing  by  the  party  first  there, 
they  may  lawfully  oppose  force  to  force,  and 
if  one  of  the  opposing  party  is  killed,  it  will 
he  justifiable  homicide.  People  v.  Batchel- 
der,  27  Cal.  69,  Sawyer,  J.,  dissenting. 

{c)  In  prevention  of  felony. 

696.  Belief.  A  reasonable  belief  that  a 
felony  is  about  to  be  committed  will  exten- 
uate a  homicide  committed  to  prevent  it, 
but  not  a  homicide  committed  by  a  private 
person  in  pursuit.  State  v.  Rutherford,  1 
Hawks,  457. 

697.  Arresting  felon.  To  justify  the  kill- 
ing of  a  felon  in  order  to  arrest  him,  the 
slayer  must  show  both  a  felony  committed, 
and  that  he  avowed  his  object,  and  that  the 
felon  refused  to  submit.  State  v.  Roane,  2 
Dev.  58. 

698.  Resistance  of  attempt.  A  person 
may  lawfully  use  all  the  force  necessary  to 
prevent  the  consummation  of  a  felony.  He 
may  resist  all  attempts  to  inflict  bodily  in- 
juiy  upon  himself,  and  detain  the  felon,  and 
hand  him  over  to  the  officers  of  the  law,  and 
it  would  only  be  by  the  use  of  unnecessary 
or  wanton  violence  that  he  could  become  a 
wrong-doer.  Ruloff  v.  People,  45  N.  Y.  213. 

699.  On  a  trial  fowimurder,  the  defendant 
will  be  justified  in  the  killing,  if  it  be  proved 
that  he  had  a  reasonable  ground  to  appre- 
hend a  design  to  commit  a  felony  or  to  do 
some  great  personal  injury  to  his  wife,  and 
there  was  imminent  danger  of  the  design 
being  accomplished.  Staten  v.  State,  30 
Miss.  619. 

700.  Suppressing  riot.  Private  persons 
may  forcibly  interfere  to  suppress  a  riot  or 
resist  rioters,  and  if  they  cannot  otherwise 
suppress  the  riot,  or  defend  themselves  from 
the  rioters,  they  may  justify  homicide  in 
killing  them.    Pond  v.  People,  8  Mich.  150. 


HOMICIDE.— IDIOCY. 


323 


Justifiable  Homicide.     In  case  of  Shipwreck.     In  case  of  Accident.  Evidence. 


701.  On  the  trial  of  an  indictment  for 
homicide  committed  by  the  defendant  in 
protecting  his  premises  from  the  invasion  of 
rioters,  there  was  evidence  tending  to  show 
that  owing  to  the  feeble  health  of  the  de- 
fendant's mother  he  might  have  apprehended 
her  speedy  death  from  the  fear  and  excite- 
ment caused  by  the  conduct  and  threats  of 
the  rioters,  Held^  that  if  they  had  notice  to 
that  effect,  or  the  defendant  was  prevented 
from  giving  it  by  their  noise  and  tumult, 
his  conduct  toward  them  was  excusable  to 
the  same  extent  as  if  the  danger  to  her  life 
had  resulted  from  an  actual  attack  upon  her 
person  or  upon  his.  Patten  v.  People,  18 
Mich.  314. 

(cT)  In  case  of  shipwreeh. 

702.  Must  be  decision  by  lot.  In  cases 
of  extreme  peril  from  shipwreck,  where 
there  is  a  necessity  that  a  part  should  be 
sacrificed  in  order  to  save  the  remainder,  a 
decision  by  lot  should  be  resorted  to,  unless 
the  peril  is  so  sudden  and  overwhelming  as 
to  leave  no  choice  of  means,  and  no  moment 
for  deliberation.  U.  S.  v.  Holmes,  Wallace, 
Jr.  1. 

(e)  In  case  of  acclden  t. 

703.  Must  have  been  in  lawful  act.  The 
accidental  taking  of  the  life  of  another,  to 
be  excusable,  must  have  been  in  the  doing 
of  some  lawful  act.  If  the  defendant  pointed 
a  loaded  gun  at  deceased,  under  circum- 
stances which  would  not  have  justified  him 
in  shooting  the  deceased,  and  the  deceased 
seized  it,  and  struggled  to  save  himself  from 
the  menaced  injury,  and  in  the  struggle  it 
went  oflF  accidentally,  the  defendant  could 
not  claim  that  the  homicide  was  excusable ; 
but  otherwise,  if  the  gun  was  discharged 
under  circumstances  in  which  it  would  have 
been  lawful  for  the  defendant  to  have  shot 
it  oflT  purposely.  State  v.  Benham,  28  Iowa, 
154. 

704.  Caused  by  disease.  Where  a  wound 
is  inflicted  which  is  not  mortal,  and  the 
person  receiving  it  afterward  becomes  ill 
from  another  cause,  and  death  results  from 
euch  illness,  the  party  giving  the  wound  is 
not  liable  for  the  death,  although  the  symp- 
toma  of  the  disease  were  aggravated,  and 


the    fatal    issue    hastened    by  the    wound, 
Livingston  v.  Cora.  14  Gratt.  592. 

(/)  Evidence.        '^ 

705.  Burden  of  proof.  If  the  prisoner 
claims  a  justification,  he  must  take  upon  him- 
self the  burden  of  satisfying  the  jury  by  a 
preponderance  of  evidence.  He  must  pro- 
duce the  same  degree  of  proof  that  would 
be  required  if  the  blow  inflicted  had  not 
produced  death,  and  he  had  been  sued  for 
assault  and  battery,  and  had  set  up  a  justifi- 
cation. It  is  not  sufficient  for  him  to  raise 
a  reasonable  doubt,  neither  is  it  necessary 
for  him  to  establish  his  justification  bej^ond 
a  reasonable  doubt.  He  must  make  his 
defense  appear  to  the  jury,  availing  himself 
of  all  the  evidence  in  the  case.  People  v. 
Schryver,  42  N.  Y.  1 ;  overruling  Patterson 
V.  People,  46  Barb.  625. 

706.  In  Nevada,  where  a  homicide  is 
proved  by  the  State,  and  no  circumstances 
of  mitigation,  excuse,  or  justification  are 
shown,  the  burden  of  establishing  such 
mitigation,  excuse,  or  justification  is  on  the 
defendant.  But  he  is  not  required  to  estab- 
lish the  facts  constituting  his  defense  be- 
yond a  reasonable  doubt,  or  by .  evidence 
preponderating  over  that  produced  against 
him.  State  v.  McCluer,  5  Nev.  133 ;  disap- 
proving State  v.  Waterman,  1  lb.  132. 

707.  Right  of  defendant  to  go  into  proof 
of  all  of  the  circumstances.  On  a  trial  for 
a  homicide  committed  by  the  defendant  in 
the  night,  in  repelling  a  riotous  assembly 
from  his  premises,  it  appeared  that  there 
had  been  a  similar  assembly  by  the  same 
parties,  at  the  same  place,  the  night  preWous. 
Held.,  that  the  defendant  had  a  right,  either 
by  cross-examination  or  by  witnesses  intro- 
duced in  his  behalf,  to  go  fully  into  all  the 
proceedings  and  objects  of  both  gatherings 
and  his  acts.  Patten  v.  People,  18  Mich. 314. 


3Monj. 

Rule  of  evidence  in  relation  to.  The 
presumption  that  persons  of  full  age  are  sane 
remains  until  overcome  by  evidence.  The 
jury,  in  order  to  convict  the  prisoner,  must 


324 


IGNORANCE   OF  LAW.— INCEST. 


When  Open  to  Inquiry. 


What  Constitutes. 


Indictment. 


be  satisfied  not  only  of  the  doing  of  the  acts, 
but  that  they  proceeded  from  a  responsible 
agent.  This  rule  is  applicable  where  the 
defense  is  idiocy.  Com.  v.  Heath,  11  Gray, 
303. 
See  Insanity. 


Sgnorancc  of  £aivi. 

When  open  to  inquiry.  Wliere  the  act 
done  is  malum  in  se,  or  where  the  law  which 
has  been  infringed  is  settled  and  plain,  the 
maxim  ignorantia  legis  neminem  excusat  is 
applied  in  its  rigor.  But  when  a  special 
mental  condition  constitutes  a  part  of  the 
oifense  charged,  and  such  condition  depends 
on  the  question  whether  or  not  the  defend- 
ant had  certain  knowledge  with  respect  to 
matters  of  law,  the  existence  of  such  knowl- 
edge is  open  to  inquiry.  Cutter  v.  State,  36 
N.  J.  125;  s.  c.  3  Green's  Crim.  Reps.  589. 


3ncc5t 


1.  What  constitutes. 

2.  Indictment. 

3.  Evidence. 

1.   What  constitutes. 

1.  Incestuous  marriage.  In  Iowa,  under 
the  statute  (Rev.  §  4369),  the  intermarriage 
of  persons  within  the  prohibited  degrees  of 
consanguinity  constitutes  incest,  without 
proof  of  carnal  knowledge.  State  v.Schaun- 
hurst,  34  Iowa,  547.  The  terms  "  brother  " 
and  "  sister  "  in  the  statute  mean  oflfspring 
of  the  same  parents,  and  do  not  necessarily 
imply  legitimacy  of  birth.     lb. 

2.  In  California,  the  attempt  to  contract 
an  incestuous  marriage  contemplated  by  the 
statute,  must  be  manifested  by  acts  which 
would  end  in  the  consummation  of  the  par- 
ticular offense,  but  for  the  intervention  of 
circumstances  independent  of  the  will  of  the 
party.  The  declarations  of  the  defendant  of 
his  determination  to  contract  such  a  mar- 
riage, his  elopement  with  his  niece  for  that 
avowed  purpose,  and  his  request  to  a  third 
person  to  go  for  a  magistrate  to  perfonu  the 


ceremony,  do   not   constitute  the   attempt. 
People  V.  Murray,  14  Cal.  159. 

3.  Step-daughter.  In  Mississippi,  it  is 
not  incest  for  a  man  to  cohabit  with  his 
step-daughter.  Chancellor  v.  State,  47  Miss. 
378.  The  offense  may  be  committed  with  a 
natural  as  well  as  Avith  a  legitimate  daughter. 
Morgan  v.  State,  11  Ala.  289. 

3.  Indictment. 

4.  Averment  of  relationship.  In  Ohio, 
the  relation  of  step-father  and  step-daughter, 
within  the  meaning  of  the  statutes  against 
incest,  terminates  with  the  death  or  divorce 
of  the  mother.  To  aver  this  relation,  there- 
fore, is  necessary  to  aver  the  marriage  of  the 
mother  to  the  step-father,  and  the  existence 
of  it  at  the  time  of  committing  the  offense. 
Noble  V.  State,  22  Ohio,  N.  S.  541 ;  s.  c.  1 
Green's  Crim.  Reps.  663. 

5.  In  Michigan,  an  information  for  incest 
need  not  allege  that  the  parties  are  "  within 
the  degrees  of  consanguinity  within  which 
marriages  are  prohibited,  or  declared  by  law 
to  be  incestuous  and  void."  Hicks  v.  Peo- 
ple, 10  Mich.  395. 

6.  An  indictment  which  alleges  that  the 
prisoner,  "  being  then  and  there  the  father 
of  B.,  and  within  the  degree  of  consanguin- 
ity within  which  marriages  are  declared  by 
law  to  be  incestuous  and  void,  and  then  and 
there  knowing  the  said  E.  B.  to  be  his 
daughter,  did  then  and  there  live  with  the 
said  E.  B.  in  a  state  of  adultery,"  is  sufii- 
cient.     Baker  v.  State,  30  Ala.  521. 

7.  Time.  An  indictment  for  incest  must 
allege  a  single  offense,  and  name  the  day  on 
which  it  was  committed.  Where  the  crime 
was  charged  to  have  been  committed  on  the 
20th  of  September,  1860,  "  and  on  divers  other 
days  and  times  between  that  day  and  the 
9th  day  of  December,  1862,"  thus  alleging  a 
series  of  offenses  without  specifying  any  jjar- 
ticular  day  except  the  first,  the  indictment 
was  held  bad.     State  v.  Temple,  38  Vt.  37. 

8.  Guilty  knowledge.  An  indictment 
charged  that  A.  did  unlawfully  have  sexual 
intercourse  with  his  daughter  B.,  the  said  B. 
then  and  there  knowing  that  she,  the  said 
B.,  was  his,  the  said  A.'s,  daughter.  Held 
that  the  indictment  was  insufficient  in  not 


INCEST.— mDICTMENT. 


325 


Indictment. 


Evidence. 


When  it  will  Lie. 


alleging  that  A.  had  intercourse  with  his 
daughter,  ' '  knowing  her  to  be  such ;  "  the 
word  "unlawfully"  not  being  equivalent  to 
such  allegation.  Williams  v.  State,  3  Carter, 
439. 

9.  In  Alabama,  an  indictment  for  incestu- 
ous adultery,  which  alleges  that  the  defend- 
ant knew  of  the  consanguinity,  is  sufficient, 
without  also  charging  that  the  other  i^arty 
knew  it.  Morgan  v.  State,  11  Ala.  289.  And 
the  indictment  wUl  be  good,  although  the 
oft'ense  be  not  laid  with  a  continuendo.  State 
V.  Glaze,  9  lb.  283. 

10.  In  Missouri,  an  indictment  for  incest 
need  not  allege  a  knowledge  of  the  relation- 
ship on  the  part  of  the  defendant.  State  v. 
Bullinger,  54  Mo.  143 ;  s.  c.  2  Green's  Crim. 
Reps.  601.     But  see  Williams  v.  State,  supra. 

11.  Charging  rape.  In  Massachusetts, 
where  an  indictment  for  rape  contained  all 
the  specifications  of  a  charge  of  incest,  it 
was  held  competent  for  the  jury,  under  the 
statute  (R.  S.  ch.  137,  §  11),  to  convict  the 
defendant  of  the  latter.  Com.  v.  Goodhue, 
2  Mete.  193. 

3.  Evidence.     ^ 

12.  Admissions  and  declarations.  On 
the  trial  of  an  indictment  for  incestuous 
adultery,  the  admission  of  the  defendants 
is  sufficient  proof  of  the  relationship. 
Morgan  v.  State,  11  Ala.  289.  Or  the  re- 
lationship of  the  parties  may  be  proved  by 
reputation.  State  v.  Bullinger,  54  Mo.  142;. 
s.  c.  3  Green's  Crim.  Reps.  601. 

13.  In  New  York,  on  the  trial  of  an  in- 
dictment for  incest,  charged  to  have  been 
committed  by  a  father  with  his  daughter, 
it  was  held  that  the  declarations  of  the 
defendant  were  admissible  to  prove  the 
consanguinity.  The  statute  in  such  case 
is  only  applicable  where  the  sexual  inter- 
course is  with  mutual  consent.  When 
effected  by  force  it  constitutes  rape.  People 
V.  Ilai'riden,  1  Parker,  344. 

14.  On  the  trial  of  a  brother  and  sister 
for  incest,  their  relationship  may  be  proved 
by  their  acts  and  declarations.  Their 
identity  may  be  established  by  admissions, 
identity  of  names,  and  by  evidence  showing 
that  there  are   other  persons  of  the  same 


name.  The  mere  misspelling  of  the  first 
name  of  one  of  the  parties  in  the  certificate 
of  the  clergyman  who  celebrated  the  mar- 
riage, will  not  destroy  the  efiect  of  the  mar- 
riage record  as  evidence.  State  v.  Schaun- 
hurst,  34  Iowa,  547. 

15.  Proof  of  other  acts.  On  a  trial  for 
incest,  evidence  is  admissible  of  previous 
acts  of  sexual  intercourse  between  the  parties, 
as  tending  to  show  the  probable  commission 
of  the  act  charged.  People  v.  Jenness,  5 
Mich.  305. 

16.  But  where  the  indictment  charges  the 
defendant  with  having  committed  incest  on 
a  certain  day,  which  is  proved,  the  prosecu- 
tion cannot  show  that  the  defendant  had 
sexual  intercourse  with  the  prosecutrix  at  a 
subsequent  time.  Lovell  v.  State,  13  Ind. 
18. 

17.  When  the  charge  is  for  a  single  act  ot 
incestuous  intercourse  committed  on  a 
certain  day,  as  the  time  stated  is  not 
material,  the  prosecution,  before  the  evidence 
is  introduced,  may  select  any  one  act  of  such 
criminal  intercourse  which  occurred  within 
the  jurisdiction  of  the  court,  and  within 
the  period  of  the  statute  of  limitations. 
But  when  the  prosecution  has  made  its 
election,  it  cannot  be  allowed  to  prove  any 
other  act  of  the  kind  as  a  substantive  offense. 
People  V.  Jenness,  supi'a. 


Subcccnci), 


See  Lasciviousness  ;  Nuisance. 


3uMctmcnt. 

1.  When  it  will  lie. 

2.  Finding. 

3.  Venue. 

4.  Caption. 

5.  Commencement. 

G.  Body  op  indictment. 

(a)  Name  of  defendant. 

(b)  Name  of  party  injured. 

(c)  Time  and  place. 

(d)  Statement  of  the  offense. 


32G 


INDICTMENT. 


When  it  will  Lie. 


Finding. 


7.  Removal  of  indictment. 

8.  Proof  required. 

9.  Objection  to  indictment. 

10.  Amendment  op  indictment. 

11.  Quashing   indictment. 

1.   When   it   will  lie. 

1.  Constitutional  right  to.  The  fifth 
article  of  the  amendments  to  the  Constitution 
of  the  United  States,  which  declares  that 
"  no  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime,  unless 
on  presentment  or  indictment  of  a  grand 
jury,"  is  not  an  inhibition  upon  the  States, 
restricting  them  in  the  prosecution  of  capital 
or  infamous  crimes  to  the  common-law  in- 
dictments.    Noles  V.  State,  24  Ala.  672. 

2.  When  in  general  the  proper  remedy. 
Whenever  a  statute  prohibits  a  matter  of 
public  grievance,  or  commands  a  matter  of 
public  convenience,  a  person  who  violates 
the  statute  is  liable  to  indictment.  State 
V.  Fletcher,  5  New  Hamp.  257. 

3.  Where  what  was  not  criminal  before 
is  prohibited  by  a  statute,  and  in  an  another 
section  a  special  remedy  is  given,  an  in- 
dictment or  information  may  be  maintained 
upon  the  prohibitory  clause.  State  v. 
Bishop,  7  Conn,  181. 

4.  When  an  offense  is  punishable  at  com- 
mon law,  and  a  statute  is  passed  giving  a 
new  remedy,  either  remedy  may  be  jjursued. 
Jenning  v.  Com.  17  Pick.  80.  A  person 
may  be  legally  indicted,  without  first  having 
been  taken  before  a  magistrate.  People  v. 
Page,  3  Parker,  600. 

5.  Where  the  statute  creating  the  oflFense 
simply  prescribes  a  penalty,  an  indictment 
will  not  lie.  State  v.  Maze,  6  Humjih.  17; 
State  V.  Corwin,  4  Mo.  609. 

6.  Offenses  amenable  to.  Riding  or 
going  armed  with  unusual  and  dangerous 
weapons,  to  the  terror  of  the  people,  is 
indictable  at  common  law.  State  v.  Huntly, 
3  Ired.  418. 

7.  It  is  an  indictable  ofi'euse  for  a  person 
to  be  publicly  drunk,  and  one  such  act  has 
been  held  sufficient.  Smith  v.  State,  1 
Humph.  396 ;  but  not  if  no  one  was  thereby 
annoyed  or  disturbed.  State  v.  Debury,  5 
Ired.  371. 


8.  An  official  act  done  by  a  justice  of  the 
peace  with  a  corrupt  intent  is  indictable. 
Wickersham  v.  People,  1  Scam.  128. 

9.  Overseers  of  the  poor  are  liable  to  in- 
dictment for  any  willful  neglect  of  duty. 
State  V.  Hoit,  3  Post.  355. 

10.  If  A.  be  charged  as  principal  and  B. 
as  accessoi-y,  the  indictment  will  be  sup- 
ported if  B.  be  found  guilty  as  principal 
and  A.  as  accessory.  State  v.  Mairs,  Coxe, 
453. 

11.  Where  a  married  woman  commits  a 
misdemeanor  with  the  concurrence  of  her 
husband,  he  is  liable  to  indictment.  Wil- 
liamson V.  State,  16  Ala.  431. 

12.  Agreement  to  do  act.  A  mere  agree- 
ment between  persons  to  do  an  unlawful 
act,  without  anything  done  in  furtherance 
of  the  common  design,  is  not  usually  in- 
dictable.    Torrey  v.  Field,  10  Vt.  353. 

2.  Finding. 

13.  Grand  jury.  Quakers  are  competent 
to  serve  as  grand  jurors.  Com.  v.  Smith,  9 
Mass.  107. 

14.  In  New  York,  where  a  statute  pro- 
vided that  the  supervisors  should  select  the 
names  of  three  hundred  men  to  serve  as 
grand  jurors,  and  two  hundred  and  ninety- 
nine  only  having  been  thus  selected,  an  in- 
dictment for  perjury  was  found  by  a  grand 
jury  drawn  from  them,  it  was  held  that  the 
indictment  was  not  for  that  reason  bad.. 
People  V.  Harriot,  3  Parker,  112. 

15.  In  Maine,  the  grand  juiy  as  originally 
impaneled  consisted  of  thirteen,  but  was 
reduced  to  eleven  members.  To  supply  the 
deficiency,  three  other  persons  were  drawn 
and  returned  by  order  of  the  court.  These 
persons  were  sworn  and  charged  as  grand 
jurors  and  added  to  the  panel.  Held  that 
as  their  selection  was  not  conformable  with 
the  laws  of  the  State,  an  indictment  found 
by  the  grand  jury  so  constituted  was  void^ 
State  V.  Symouds,  36  Maine,  128. 

16.  Oath  of  grand  jury.  It  must  appear 
from  the  indictment  that  it  was  found  upon 
the  oath  of  the  grand  jurors.  State  v.  Mc- 
Allister, 13  Maine,  374.  But  it  is  no  objec- 
tion to  the  indictment  that  it  purports  to 
be   found   by  the  grand   jury  ''  upon  their 


INDICTMENT. 


327 


Finding. 


oaths,"  instead  of  "  upon  their  oath."  Com. 
V.  Scholes,  13  Allen,  554;  Jerry  v.  State,  1 
Blackf.  395;  State  v.  Dayton,  3  Zabr.  49. 

17.  Where  an  indictment  is  on  the  affirma- 
tion of  some  of  the  grand  jurors,  it  must  be 
shown  that  they  were  persons  entitled  by 
law  to  take  affirmations  instead  of  oaths  or 
the  indictment  will  be  fatally  defective. 
State  V.  Harris,  2  Halst.  361.  And  it  must 
appear  that  the  grand  jurors  who  were 
affirmed  stated  that  they  had  conscientious 
scruples  against  taking  an  oath.  State  v. 
Fox,  lb.  244. 

18.  Proof  required.  Evidence  before  a 
grand  jury  must  be  such  as  would  be  com- 
petent before  a  petit  jury.  U.  S.  v.  Reed, 
2  Blatchf  435.  The  oath  may  be  general 
without  reference  to  a  criminal  charge 
against  any  particular  person.  But  if  the 
oath  embraces  persons  by  name,  evidence 
cannot  be  given  under  it  against  others.     lb. 

19.  The  grand  jury  ought  not  to  find  an 
indictment  when  the  evidence  taken  to- 
gether, if  unexplained  or  uncontradicted, 
would  not  warrant  a  conviction.  Peoi^le  v. 
Tinder,  19  Cal.  539. 

20.  Where  an  indictment  was  found  by 
the  grand  jury  upon  the  mere  statement  of 
a  witness  without  oath,  it  was  quashed  for 
that  reason.  U.  S.  v.  Coolidge,  2  Gallis. 
334. 

21.  But  a  grand  jury,  without  examining 
witnesses  over  again,  may  find  another  in- 
dictment in  place  of  the  one  found  by  them 
at  a  previous  term.  Com.  v.  Woods,  10 
Gray,  477. 

22.  The  fact  that  the  defendant  was  re. 
quired  by  the  grand  jury  to  testify,  and  in 
pursuance  of  such  requisition  did  testify 
before  them  touching  the  charge,  vitiates 
the  indictment.  State  v.  Froiseth,  16  Minn. 
296. 

23.  Presence  of  stranger.  The  mere 
fact  that  a  stranger  was  present  in  the 
grand  jury  room  when  the  indictment  was 
found  would  not  render  it  void,  but  other- 
wise if  he  participated  in  the  proceedings. 
Stat^  V.  Clough,  49  Maine,  573. 

24.  Vacancy  in  office  of  district  attor- 
ney. Where  an  indictment  was  found  while 
the  office  of  district  attorney  was  vacant,  it 


was  held  that  the  action  of  the  new  district 
attorney,  in  arraigning  and  trying  the  pris- 
oner upon  the  indictment,  was  an  adoption 
of  it,  and  evidence  to  the  court  of  his  con- 
currence in  the  action  of  the  grand  jury, 
and  of  his  prosecution  of  the  prisoner  in  the 
name  of  the  United  States,  pursuant  to  the 
statute.     U.  S.  v.  McAvoy,  4  Blatchf.  418. 

25.  Signing.  It  is  not  a  ground  for  ar- 
resting juelgment,  that  the  foreman  of  the 
grand  jury  signed  the  indictment  with  his 
surname  and  the  initials  of  his  christian 
name.  Com.  v.  Hamilton,  15  Gray,  480; 
State  V.  Taggart,  38  Maine,  298 ;  Com.  v. 
Gleason,  110  Mass.  66;  s.  c.  2  Green's  Crim. 
Reps.  260. 

26.  In  Alabama,  an  indictment  under  the 
forms  prescribed  by  the  code,  need  not  be 
signed  by  the  solicitor.  Harrall  v.  State, 
26  Ala.  52. 

27.  Indorsing  tru3  bill.  The  words  "  a 
true  bill,"  must  \)e  inelorsed  upon  every  in- 
dictment. Com.  V.  Walters,  6  Dana,  291. 
The  foreman  of  the  grand  jury  indorsed  on 
the  indictment,  "A  true  bill.  Ira  Allen,"  but 
omitted  the  word  "foreman."  Held,  that 
the  indictment  was,  notwithstanding,  good. 
State  V.  Brown,  31  Vt.  602. 

28.  The  neglect  of  the  foreman  of  the 
granel  jury  to  certify  under  his  hand  an 
indictment  to  be  a  true  bill,  is  grounel  for 
quashing  the  indictment  before  trial,  but 
not  for  arrest  of  judgment.  State  v.  Burgess, 
24  Mo.  381. 

29.  Return  of  indictment.  The  indict- 
ment must  be  brought  into  court  by  the 
granel  jurors  in  a  body,  and  delivered  to  the 
court  by  their  foreman.  Com.  v.  Johnson, 
Thach.  Crim.  Cas.  284 ;  State  v.  Cox,  6  Ired. 
44 ;  Nomaque  v.  People,  Breese,  109.  And 
there  must  be  an  entry  of  record,  showing 
that  the  indictment  was  returned  by  the 
grand  jury  in  open  court.  Brown  v.  State, 
9  Yerg.  198;  Chappel  v.  State,  8  lb.  166. 

30.  But  it  is  not  a  good  objection  to  an 
indictment  properly  returned,  indorsed,  and 
filed,  that  the  fact  of  its  return  is  not  entered 
on  the  minutes  of  the  court.  Mose  v.  State, 
35  Ala.  421. 

31.  Indorsement  of  prosecutor.  Iii  Mis- 
sissippi, it  has  been  helel  a  fatal  objection 


528 


INDICTMENT. 


Finding. 


Venue. 


thai  no  prosecutor  is  marked  on  the  indict- 
ment. Kirk  V.  State,  13  Smed.  &  Marsh. 
406.  In  Tennessee,  it  is  required  by  the  act 
of  1801,  cl\.  30,  §1.  Medaris  v.  State,  10 
Yerg.  239.  In  the  United  States  courts,  it 
is  not  necessary.  U.  S.  v.  Muudell,  6  Call, 
245. 

32.  In  Missouri,  under  the  statute  requir- 
ing the  name  of  tlie  prosecutor  to  be  indorsed 
on  the  indictment  in  certain  cases,  it  is  sutfi- 
cient  if  the  name  be  on  any  part  of  the  in- 
dictment.    Williams  v.  State,  9  Mo.  268. 

33.  The  name  of  a  married  woman  marked 
on  an  indictment  as  prosecutrix,  is  a  nullity. 
Mayers  v.  State,  11  Humph.  40. 

34.  An  indorsement  on  an  indictment  that 
it  "  is  preferred  upon  the  testimony  of  the 
party  injured,  who  was  summoned  on  pre- 
sentation, and  by  order  of  the  grand  jury," 
does  not  show  that  the  indictment  was  pre- 
ferred on  the  information  of  any  of  the  grand 
jury,  and  is  not  a  compliance  with  a  statute 
requiring  the  indorsement  of  the  prosecutor. 
State  V.  Denton,  14  Ark.  348. 

35.  In  Kentucky,  the  name  of  the  prose- 
cutor (who  will  be  answerable  for  costs),  the 
town  or  county  in  which  he  resides,  with  his 
title  or  i^rofession,  must  be  written  at  the 
foot  of  every  indictment  for  a  trespass,  be- 
fore it  is  presented  to  the  grand  jury.  The 
omission  of  his  addition  is  a  fatal  defect,  not 
cured  by  security  for  the  costs  required  of 
and  given  by  the  prosecutor.  Com. v.  Gore, 
3  Dana,  475;  Allen  v.  Com.  2  Bibb,  210. 

36.  Indorsement  of  names  of  witnesses. 
By  the  common  law,  the  names  of  the  wit 
nesses  for  the  prosecution  need  not  be 
indorsed  on  the  indictment  or  information  ; 
and  there  is  no  act  of  Congress  requiring  it. 
U.  S.  V.  Shepard,  1  Abb.  431. 

37.  Filing.  Where  the  trial  and  convic- 
tion occur  at  the  term  at  which  the  indict- 
ment is  found,  the  court  may,  at  any  time 
during  that  term,  as  well  after  as  before 
conviction,  cause  the  clerk  to  indorse  the 
indictment  "filed,"  and  to  date  the  indorse- 
ment according  to  the  fact  and  sign  it,  and 
may  also  cause  an  entry  to  be  made  on  the 
minutes,  that  the  indictment  was  returned 
into  court  by  the  grand  jury,  with  the  day 
on  which  it  was  so  returned.      Franklin  v. 


State,  28  Ala.  9;  Saunders  v.  Coffin,  16  lb. 
421. 

38.  There  being  no  words  in  the  statute 
of  New  York  (3  R.  S.  5th  ed.  p.  1018,  §  38), 
indicating  an  intention  that  the  indictment 
shall  be  void  if  not  filed,  the  provision  re- 
quiring it  to  be  filed  is  to  be  regarded  as 
merely  directory.  Dawson  v.  People,  25 
X.  Y.  399. 

39.  The  failure  of  the  clerk  to  enter  on 
an  indictment  the  day  of  its  return  by  the 
the  grand  jury  into  court,  is  not  ground  for 
the  discharge  of  the  prisoner.  State  v. 
Clark,  18  Mo.  432. 

40.  Delivery  to  prisoner.  A  statute  re- 
quiring that  a  copy  of  the  indictment  shall 
be  delivered  to  the  prisoner  two  days  before 
the  trial,  means  that  the  copy  shall  be  de- 
livered two  days  before  the  cause  is  tried  by 
the  jury,  and  not  two  days  before  the  pris- 
oner is  arraigned.  U.  S.  v.  Curtis,  4  Mason, 
232. 

41.  In  Alabama,  it  is  the  constitutional 
right  of  the  defendant  to  be  furnished  with 
a  copy  of  the  indictment  before  he  can  be 
compelled  by  the  court  to  be  put  upon  his 
trial.  But  in  felonies  not  capital,  this  right 
will  be  held  to  be  waived  if  not  made  at  the 
proper  time.     DiiskiU  v.  State,  45  Ala.  21. 

42.  Loss  of  indictment.  When  the  in- 
dictment has  been  mislaid,  lost  or  destroyed, 
a  copy  cannot  be  substituted.  Ganaway  v. 
State,  22  Ala.  772,  Goldwait  and  Gibbon, 
iS.,  dissenting ;  and  the  prisoner  cannot  be 
tried.  Bradsha,w  v.  Com.  16  Graft.  507. 
When  an  indictment  has  been  abstracted 
from  the  clerk's  office,  the  prosecution  will 
not  thereby  be  abated,  but  the  pending 
prosecution  may  be  dismissed  with  the  con- 
sent of  the  court,  and  a  new  indictment  be 
found.  Com.  v.  Keger,  1  Duvall,  Ky.  249. 
See  Henry  v.  Com.  4  Bush,  Ky.  427. 

3.  Venue. 

43.  Must  be  laid  in  county.  An  indict- 
ment which  does  not  lay  the  venue  in  any 
county,  is  bad.  Territory  agst.  Freeman, 
McCahon's  Kansas,  56. 

44.  Where  the  county  is  named  in  the 
commencement  of  the  indictment,  the  venue 


INDICTMENT. 


329 


Venue. 


Caption. 


is  sufficiently  laid  in  the  county  aforesaid. 
State  V.  Ames,  10  Mo.  743. 

45.  The  indictment  must  show  that  the 
venue  and  any  material  fact  alleged,  was  at 
a  place  within  the  jurisdiction  of  the  court. 
But  when  only  one  county  is  named,  the 
words  "  county  aforesaid  "  will  refer  to  the 
county  in  the  margin.  State  v.  Conley,  39 
Maine,  78. 

46.  An  indictment  described  the  defend- 
ant as  late  of  U.,  in  the  county  of  O.,  and 
then  laid  the  offense  at  F.,  in  said  county, 
F.  being,  in  fact,  in  the  county  of  H.  Held 
that  this  was  equivalent  to  laying  the  offense 
in  the  latter  county,  F.  being  a  town  created 
by  public  statute.  People  v.  Breese,  7  Cow. 
429. 

47.  Where  a  new  county  is  created.  If 
a  crime  be  committed  in  the  county  of  A., 
and  afterward  the  county  of  A.  be  divided, 
and  the  part  of  it  in  which  the  offense  was 
committed  be  created  a  new  county  called 
B.,  the  offense  is  indictable  in  the  county 
of  B.     State  v.  Jones,  4  Halst.  357, 

48.  Statutes  prescribing  the  limits  of 
counties  and  towns  are  pul)licacts,  of  which 
courts  will  judicially  take  notice.  The 
county  of  A.  was  incorporated  by  erecting 
certain  existing  towns,  by  their  corporate 
names,  into  a  new  county.  P.  was  one  of 
the  towns  named  in  the  act,  and  was  taken 
from  the  county  of  C.  Held  that  an  indict- 
which  charged  the  oflFense  to  have  been 
committed  in  P.,  now  in  the  county  of  A., 
was  sufficient  without  alleging  what  county 
P.  was  in  when  the  offense  was  committed. 
State  V.  Jackson,  39  Maine,  291. 

4.  Caption. 

49.  Nature  and  office.  The  caption  forms 
no  part  of  the  indictment,  and  is  not  es.sen- 
tial  to  its  validity.  State  v.  Peterson,  2  La. 
An.  221 ;  State  v.  Lyons,  3  lb.  154.  It  may 
be  affixed  by  the  clerk  at  any  time,  with  the 
view  to  the  perfecting  oi  the  record.  Myers 
V.  People,  4  N.  Y.  Supm.  N.  S.  292. 

50.  The  office  of  the  caption  is  to  state  the 
style  of  the  court,  the  time  and  place  when 
and  where  the  indictment  was  found,  and  in 
some  of  the  States,  the  jurors  by  whom  it 
was  found ;  and  these  particulars  it  must  set 


forth  with  reasonable  certainty.     State"  v. 
Gary,  36  New  Hamp.  359. 

51.  When  an  indictment  is  removed  from 
an  inferior  to  a  superior  court,  the  caption 
consists  wholly  of  a  history  of  the  proceed- 
ings, naming  the  court  where  it  was  found, 
the  jurors'  names  by  whom  found,  and  the 
time  and  jDlace  were  found.  People  v.  Ben- 
nett, 37  N.  Y.  117. 

52.  How  entitled.  In  Massachusetts,  al- 
though the  caption  is  usually  entitled  as  of 
the  first  day  of  the  term,  yet  an  indictment 
with  such  a  caption  may  be  presented  for  an 
offense  committed  subsequent  to  that  day, 
and  may  be  proved  by  reference  to  the  clerk's 
certificate  thereon  to  have  been  returned 
after  the  day  on  which  it  alleges  the  offense 
was  committed.  Com.  v.  Hines,  101  Mass. 
33;  Com.  v.  Stone,  3  Gray,  453;  Com.  v. 
Colton,  nib.  1. 

53.  What  it  should  contain.  The  cap- 
tion must  state  in  what  court  the  indictment 
was  found,  by  what  jurors  it  was  returned, 
and  the  place  and  time  where  and  when  it 
was  presented.  State  v.  Williams,  2  Mc- 
Cord,  201 ;  Thomas  v.  State,  5  How.  Miss. 
31;  Joseph  v.  State,  lb.  20;  State  v.  Sutton, 
1  Murphy,  281.  If  it  appear  that  the  in- 
dictment was  found  by  a  grand  jury  not  le- 
gally constituted,  it  will  not  support  a  con- 
viction. Fitzgerald  v.  State,  4  Wis.  395.  It 
should  show  the  county  in  which  the  court 
is  held,  and  that  the  grand  jurors  were 
sworn.  State  v.  Fields,  Peck,  140;  though 
it  would  be  sufficient  if  the  latter  fact  ap- 
peared in  the  body  of  the  indictment.  State 
V.  Long,  1  Humph.  386.  It  need  not  state 
the  title  of  the  court.  Taylor  v.  Com.  2  Va. 
Cas.  940.  But  it  should  show  that  the  grand 
jurors  were  of  the  proper  county.  Byrd  v. 
State,  1  How.  Miss.  163 ;  Cornelius  v.  State. 
23  Miss.  782.  The  averment  that  the  grand 
jurors  were  ''good  and  lawful  men,"  is  a 
sufficient  averment  of  their  qualifications. 
Beauchamp  v.  State,  6  Blackf.  299 ;  Corn- 
well  V.  State,  1  Mart.  &  Yerg.  147 ;  Bonds 
V.  State,  lb.  143.  The  indictment  need  not 
state  the  names  of  the  grand  jurors  by  whom 
it  was  found.  People  v.  Haynes,  55  Barb_ 
450. 

54.  In  New  Jersey,  where  the  names  and 


330 


INDICTMENT. 


Caption. 


Commencement. 


Body  of  the  Indictment.     Name  of  Defendant. 


style  of  office  of  the  judges  composing  the 
court  do  not  appear  in  the  caption,  the  in- 
dictment will  be  quashed.  State  v.  Zule,  5 
Halst.  348. 

55.  Indictment  rendered  certain  by. 
The  caption  of  an  indictment  which  shows 
when,  where,  and  by  whom  the  court  was 
lield,  and  who  were  elected  and  sworn  as 
grand  jurors,  may  be  resorted  to  in  aid  of 
the  indictment  as  a  part  of  the  record. 
Noles  V.  State,  24  Ala.  672. 

56.  The  date  of  the  offense  may  be  ren- 
dered certain  hy  referring  to  the  year  stated 
in  the  caption.  Jacobs  v.  Com.  5  Serg.  & 
Rawle,  315 ;  and  when  the  county  is  stated 
in  the  caption,  the  words  "  then  and  there  " 
in  the  indictment  will  be  referred  to  that 
county.  State  v.  Bell,  3  Ired.  506.  It  is 
not  a  good  objection  to  the  caption  that  the 
dates  are  given  in  figures.  State  v.  Smith, 
Peck,  165. 

57.  Amendment.  A  material  error  in  the 
caption  is  not  fatal,  but  the  caption  may  be 
amended  on  motion  at  any  time  during  the 
term  at  which  it  is  found.  State  v.  Creight, 
1  Brev.  169;  Moody  v.  State,  7  Blackf.  424; 
Allen  V.  State,  5  Wis.  329;  State  v.  Emmott, 
23  lb.  632. 

58.  Omission  of  caption.  On  a  hearing 
of  a  motion  in  arrest  of  judgment,  defects  in 
the  caption  of  the  indictment,  or  even  the 
omission  of  the  caption,  cannot  be  noticed. 
State  V.  Thibeau,  30  Vt.  100. 

59.  An  indictment  which  remains  in  the 
same  court  in  which  it  was  found,  need  not 
have  a  caption.  Wagner  v.  People,  4  N.  Y. 
Ct.  of  Appeals  Decis.  509;  affi'g  54  Barb. 
367 ;  s.  c.  2  Keyes,  684. 

5.  Commencement. 

60.  Form.  The  following  are  all  the  re- 
quisites of  a  good  commencement  to  an  in- 
dictment :   "  The  jurors  of  the  people  of  the 

State  of ,   in  and  for  the  body  of  the 

county  of   ,  upon  their  oaths  present." 

People  V.  Bennett,  37  N.  Y.  117. 

6.  Body  of  the  indictment. 
(f()  Name  of  defendant. 

61.  Must  be  alleged.  Where  an  indict- 
ment against  a  surveyor  of  a  public  road  de- 


scribed the  road,  but  did  not  name  the  sur- 
veyor, it  was  held  bad  on  a  demurrer.  Sni- 
der's  Case,  2  Leigh,  744. 

62.  Where  the  defendant  was  charged 
with  committing  an  offense  with  "  divers 
other  persons,  to  wit,  to  the  number  of  five," 
and  the  indictment  did  not  state  that  the 
five  others  were  unknown,  or  give  their 
names,  it  was  held  that  the  indictment  was 
bad.     State  v.  O'Donald,  1  McCord,  532. 

63.  An  indictment  for  permitting  gam- 
bling must  give  the  names  of  the  persons 
whom  the  defendant  permitted  to  play,  or 
state  that  they  are  vinknown.  Buck  v.  State, 
McCook,  61. 

64.  Name  unknown.  A  defendant  should 
be  indicted  by  his  true  name  when  known. 
But  if  unknown,  he  may  be  indicted  by  any 
name  that  is  suflScient  to  identify  him.  If, 
when  arraigned,  he  fails  to  give  his  true 
name  upon  request,  he  cannot  afterward 
complain  if  he  is  tried  by  the  name  specified 
in  the  indictment,  or  given  by  him  upon  ar- 
raignment, although  not  his  true  name. 
State  V.  Bums,  8  Nev.  251. 

65.  A  name  may  be  alleged  in  an  indict- 
ment to  be  unknown,  notwithstanding  the 
grand  jury  had  the  means  of  informing 
themselves  of,  or  might  with  reasonable  dili- 
gence have  ascertained  it.  Com.  v.  Stod- 
dard, 9  Allen,  280. 

66.  It  is  only  when  the  defendant's  name 
cannot  be  discovered  that  it  is  proper  to  de- 
scribe him  in  the  indictment  by  a  fictitious 
name,  with  the  statement  that  his  name  is 
unknown.  Where,  therefore,  the  defendant 
was  neither  named  nor  described,  but  re- 
ferred to  as  "  a  man  in  Turner  Hall  whose 
name  to  the  grand  jury  is  unknown,"  the  in- 
dictment was  held  bad.  Geiger  v.  State,  5 
Iowa,  484. 

67.  Christian  name.  An  indictment 
which  alleges  that  the  defendant's  christian 
name  is  unknown  to  the  grand  jury  is  suffi- 
cient.    Skinner  v.  State,  30  Ala.  524. 

68.  Every  person  is  presumed  to  have  a 
christian  name.  If  unknown,  it  should  be 
so  stated  in  the  indictment.  If  known,  the 
allegation  that  the  christian  name  is  un- 
known would  be  improper.  An  indictment 
for  murder  was  held  defective   which    de- 


INDICTMENT. 


331 


Body  of  the  Indictment. 


Name  of  Defendant. 


scribed  the  deceased  as  "  one  Hardy,"  with- 
out averring  that  his  name  was  otherwise  to 
the  jurors  unknown.  People  v.  Walters,  5 
Parker,  661;  s.  c.  6  lb.  15;  32  N.  Y.  147. 

69.  In  Kentucky,  under  the  statute  (Crim. 
Code,  §  124),  an  indictment  will  be  good  al- 
though the  christian  name  of  the  party 
charged  be  omitted.  Com.  v.  Kelcher,  3 
Mete.  Ky.  484. 

70.  An  indictment  for  murder  is  not  bad 
for  uncertainty  or  duplicity  which  charges 
tlie  prisoner  with  the  killing  of  T.  H.,  aliais 
T.  J.     Kennedy  v.  People,  39  N.  Y.  245. 

71.  Where  the  prisoner's  full  name  has 
been  stated  in  the  first  part  of  the  indict- 
ment, it  will  be  sufficient  afterward  to  refer 
to  it  by  the  christian  name  alone.  State  v. 
Cox,  6  Ired.  44 ;  State  v.  Coppenburg,  2 
Strobh.  273. 

72.  Abbreviation.  ^Vhere  a  person's 
surname  is  usually  abbreviated  and  written 
Avith  a  prefix,  a  name  written  in  that  way  in 
an  indictment  will  be  sufficient.  State  v. 
Kean,  10  New  Hamp,  347. 

73.  Middle  letter.  An  initial  letter  in- 
terposed between  the  christian  and  surname 
being  no  part  of  either,  it  is  immaterial 
whether  one  be  introduced  which  the  party 
is  not  accustomed  to  use,  or  one  be  omitted 
which  he  is  accustomed  to  use,  or  whether 
those  used  by  him  in  writing  his  name  be 
transposed.  State  v.  Manning,  14  Texas, 
402;  Edmundson  v.  State,  17  Ala.  179;  State 
V.  Martin,  10  Mo.  391.  On  the  other  hand, 
it  has  been  held,  that  although  the  middle 
letter  of  a  person's  name  need  not  be  alleged, 
yet  that  if  stated,  it  must  be  proved  as  laid, 
Brice  V.  State,  19  Ohio,  423;  State  v. 
Hughes,  1  Swan,  262.  The  improper  addi- 
tion of  '■'•Junior''''  to  the  defendant's  name 
will  not  vitiate  the  indictment.  Com.  v» 
Perkins,  1  Pick.  388. 

74.  Idem  sonans.  Uutton  for  Herdson,  in 
an  indictment,  is  not  a  misnomer.  State  v. 
Ilutson,  15  Mo.  512.  But  held  otherwise  as 
to  Donald  ^jr  Donnel.  Donnel  v.  U.  S.  1 
Morris.  141. 

75.  "  OwenH  B.  Havehj''''  and  "  Owen  D. 
Haverly,'''  also  "  Blanhenship  "  and  "  Blacken- 
ship "  are  idem  sonant  as  matter  of  law. 
State  v.  Havely,  21  Mo.  498;  State  v.  Blank- 


enship,  lb.  504,   Scott  J.,  dissenting.      Held 
that  it  was  a  question  of  fact  for  the  jury. 

76.  Where  D.  was  tried  separately  under 
an  indictment  charging  him  with  having 
committed  a  riot  with  one  Land,  and  the 
evidence  showed  that  the  name  of  the  latter 
was  Lance,  it  was  held  that  as  there  was  no 
doubt  of  the  identity  of  the  man,  the  vari- 
ance was  not  material.  Davenport  v.  State, 
38  Ga.  184.  Whether  a  name  written  in  an 
indictment  is  David  or  Daniel,  is  to  be  de- 
termined by  the  court.  Com.  v.  Riggs,  14 
Gray,  376. 

77.  Description.  The  estate,  degree,  and 
mystery  of  the  accused,  should  be  alleged 
in  the  indictment.  State  v.  Hughes,  2  Har. 
&  McHen.  479. 

78.  In  Indiana,  an  indictment  at  common 
law  need  not  describe  the  defendant  by  his 
addition.     State  v.  McDowell,  6  Blackf.  49. 

79.  An  indictment  for  embezzlement,  un- 
der the  statute  of  New  York  (2  R.  S.  678^ 
§  59),  must  allege  that  the  defendant  was  a 
clerk  or  servant  of  some  person  (or  an  offi- 
cer or  agent  of  a  corporation),  and  that  the 
property  he  is  charged  with  embezzling 
came  to  his  possession,  or  under  his  care,  by 
virtue  of  such  employment.  People  v.  Al- 
len, 5  Denio,  76. 

80.  Where  an  indictment  alleges  that  the 
name  of  the  deceased  was  A.  B.,  "a  person 
of  color,"  the  words  "a  person  of  color," 
may  be  rejected  as  surplusage.  Farrow  v. 
State,  48  Ga.  30. 

81.  Partners  should  be  indicted  as  indi- 
viduals.    Peterson  v.   State,  32  Texas,  477. 

82.  An  indictment  against  overseers  of  the 
poor  for  neglect  of  duty,  must  allege  that 
they  were  overseers  of  the  poor  of  the  town ; 
that  it  was  their  duty  to  relieve  the  pauper, 
and  that  they  intentionally  and  willfully 
neglected  to  do  so.  State  v.  Hoit,  3  Foster, 
355. 

83.  An  indictment  which  charges  the 
defendant  in  one  count  with  being  an  acces- 
sory before  the  fact,  and  in  another  count 
with  being  an  accessory  after  the  fact  to  the 
same  felonj',  is  good.  So  a  receiver  may  be 
ciiarged  as  an  accessory  in  one  count,  and 
for  a  substantive  felony  in  another  count. 
U.  S.  V.  Dickinson,  2  McLean,  325. 


332 


INDICTMENT. 


Body  of  the  Indictment.  Name  of  Party  Injured. 


Time  and  Place. 


84.  An  indictment  for  extortion  commit- 
ted by  an  agent,  may  charge  that  the  offense 
Avas  committed  by  the  principal.  Com.  v. 
Bagley,  7  Pick.  279. 

(b)  Name  of  jMrty  injured. 

85.  Must  be  stated.  An  indictment  for 
an  offense  against  the  person  or  property  of 
an  individual,  must  allege  the  christian  and 
surname  of  the  person  injured  if  known. 
Willis  V.  People,  1  Scam.  399. 

86.  An  indictment  for  an  assault  with  in- 
tent to  rob,  must  state  who  was  intended  to 
be  robbed,  and  of  what.  Connolly  v.  People, 
3  Scam.  474. 

87.  Name  unknown.  The  averment  in 
an  indictment,  that  the  name  of  the  person 
injured  is  unknown,  is  material  and  tra- 
versed by  the  plea  of  not  guilty.  Cameron 
V.  State,  8  Eng.  712. 

88.  "Where  an  indictment  for  retailing 
liquor,  alleged  that  the  liquor  was  sold  to  a 
person  whose  name  was  unknown  to  the 
grand  jurors,  and  it  appeared  that  they 
might  have  ascertained  the  name  of  the  per- 
son if  they  had  asked  the  witness  who  tes- 
tified before  them,  it  was  held  that  the  in- 
dictment could  not  be  maintained.  Blodget 
V.  State,  3  Ind.  403. 

89.  Initials.  Although  the  name  of  the 
person  receiving  the  injury,  when  known, 
must  be  set  out  in  the  indictment,  yet  if  he 
is  described  by  the  initials  of  his  christian 
name,  and  he  is  as  well  known  by  that  as 
by  his  full  name,  it  is  sufficient.  Vauder- 
mark  v.  People,  47  111.  122. 

90.  An  indictment  is  sufficiently  certain, 
which  describes  third  persons  by  the  initials 
of  their  christian  names.  State  v.  Ander- 
son, 3  Rich.  172. 

91.  Addition.  The  indictment  need  not 
describe  by  any  addition,  the  person  upon 
whom  the  offense  therein  set  forth,  is  al- 
leged to  have  been  committed.  Com.  v. 
Varney,  10  Cash.  402. 

92.  Where  an  offense  is  more  highly  pun- 
ishable when  committed  upon  a  particular 
class  of  persons,  an  indictment  which  does 
not  allege  whether  the  injured  person  be- 
longs to  that  particular  class,  will  be  sus- 
tained ;  and  ui)on  a  conviction,  the  court  will 


award  only  the  milder  punishment.     State 
V.  Fielding,  32  Maine,  585. 

93.  Omission  of  name.  Even  if  it  is  nec- 
essary (which  is  doubtful)  to  name  the 
prosecutor  in  au  indictment  to  recover  a 
fine  or  penalty,  the  omission  is  not  material 
when  his  right  to  any  part  of  the  recovery 
is  barred  by  the  statute  of  limitation.  State 
V.  Robinson,  29  New  Hamp.  274. 

94.  How  determined.  The  question 
whether  or  not  the  name  of  the  deceased  in 
an  indictment  for  murder,  is  the  true  name, 
is  one  of  fact  for  the  jury.  State  v.  Angel, 
7  Ired.  27. 

(c)   Time  and  place. 

95.  Must  be  stated  with  certainty.  Al- 
though time  and  place  must  be  stated  with 
certainty  in  the  indictment,  yet  they  need 
not  be  proved  on  the  trial  as  stated,  unless 
they  are  necessary  ingredients  of  the  offense. 
People  V.  Stocking,  50  Barb.  573;  State  v. 
Munson,  40  Conn.  475;  s.  c.  2  Green's  Crim. 
Reps.  493. 

96.  The  general  rule  requiring  certainty  in 
averment  of  time  and  place  does  not  apply 
to  those  descriptive  portions  of  the  indict- 
ment whose  office  it  is  to  so  qualify  or  limit 
the  object  acted  upon  as  to  show  it  to  be  a 
proper  subject  of  complaint,  unless  time  or 
place  is  an  element  necessary  to  constitute  it 
a  proper  subject,  and  the  existence  of  this 
element  would  be  susceptible  of  question  if 
not  averred.  State  v.  Cook,  38  Vt.  437,  per 
Steele,  J.;  State  v.  0'Keefe,41  lb.  691. 

97.  Where  the  averment  as  to  time  and 
place  is  repugnant  or  uncertain,  the  indict- 
ment will  be  bad.  Jane  v.  State,  3  Mo.  61. 
But  such  averment  need  only  be  certain  to  a 
common  intent.  State  v.  Brisbane,  2  Bay, 
451 ;  State  v.  G.  S.  1  Tyler,  295  ;  State  v. 
Thayer,  4  Strobh.  286. 

98.  Words  "then  and  there."  Where 
the  venue  is  laid  in  the  margin,  the  words 
"  then  and  there"  sufficiently  show  the  place 
where  the  offense  was  committed.  State  v. 
Slocum,  8  Blackf.  315.  But  where  time  and 
place  are  charged  with  certainty,  the  words 
"  then  and  there "  need  not  be  repeated. 
State  V.  Capers,  6  La.  An.  267;  State  v. 
Wilson,  11  lb.  163. 


INDICTMENT. 


533 


Body  of  the  Indictment. 


Time  and  Place. 


99.  In  general,  the  allegation  of  time  and 
place,  "  then  and  there,"  should  be  repeated 
to  every  material  averment.  But  if  two 
places  are  named,  and  afterward  a  material 
fact  be  laid  "  then  and  there,"  the  indict- 
ment will  be  bad  for  uncertainty.  State  v. 
Hardwick,  2  Mo.  220;  Markley  v.  State,  10 
lb.  291;  State  v.  Hayes,  24  lb.  358;  State 
V.  Roberts,  26  Maine,  268. 

100.  But  although  where  two  distinct 
times  and  places  have  been  mentioned,  in 
and  at  which  the  offense  has  been  committed, 
and  reference  is  afterward  made  to  time  and 
place  by  the  words  "  then  and  there,"  the 
allegation  is  defective,  yet  this  is  not  the 
case  where  but  one  time  and  place  is  men- 
tioned with  reference  to  the  commission  of 
the  offense,  and  the  other  place  is  spoken  of 
as  the  residence  of  one  of  the  parties.  State 
V.  Jackson,  39  Maine,  291. 

101.  An  indictment  which  charges  that 
A.  B.  did  construct  and  use  a  public  gaming 
place  in  the  town  of  H.,  in  the  county  of  H., 
at  which  a  game  of  chance  was  played,  and 
that  the  defendant,  at  said  town  of  H.,  did 
l^lay  at  the  said  game,  "and  did  then  and 
there  bet  money  with  the  said  A.  B.,  at  and 
upon  the  said  game,"  is  insufficient  in  not 
alleging  that  the  playing  and  betting  by  the 
defendant  were  at  any  public  gaming  place. 
The  words  "then  and  there  "  referring  only 
to  the  time  and  to  the  county  of  H.,  and  not 
to  the  place  of  gaming.  State  v,  Braxton, 
3  Ired.  354. 

102.  An  indictment  charged  that  L.  D., 
late  of  the  district  of  Maryland,  mariner,  on 
the  31st  day  of  October,  1839,  then  and  there 
being  on  board  a  certain  brig  belonging  to 
a  citizen  of  the  United  States,  on  the  high 
seas,  on  the  Atlantic  Ocean,  in  latitude 
thirty-three,  out  of  the  jurisdiction  of  any 
particular  State,  and  within  the  jurisdiction 
of  the  United  States,  did  tlien  and  there  com- 
mit, &c.  Held  that,  as  the  word  "there" 
first  above  mentioned  referred  to  the  district 
of  Maryland,  it  was  an  allegation  that  the 
crime  was  committed  in  that  district,  and 
consequently  that  this  allegation  was  re- 
pugnant to  the  subsequent  averment  in 
the  same  sentence,  that  it  was  committed 
"  out   of    the    jurisdiction   of    any   partic- 


ular  State."     U.  S.  v.  Dow,  Campbell  C.  C. 
34. 

103.  Rule  as  to  the  averment  of  time. 
The  indictment  need  not  state  the  day  on 
which  it  was  found,  or  the  name  of  the  pre- 
siding judge.     State  v.  Folke,  2  La.  An.  744. 

104.  An  indictment  which  omits  to  state 
the  time  when  the  offense  was  committed 
will  be  bad  on  demurrer.  Roberts  v.  State, 
19  Ala.  526;  State  v.  Hopkins,  7  Blackf. 
494.  But  when  time  does  not  enter  into  the 
offense,  it  need  not  be  alleged.  State  v.. 
Sam,  2  Dev.  567. 

105.  An  indictment  which  does  not  state 
any  year,  is  bad  for  uncertainty.  Com.  v. 
Griffin,  3  Cush.  523 ;  and  if  the  offense  be 
laid  on  an  impossible  day  or  a  future  day,  it        , 

State  V.   Sexton,  3  Hawks,      / 


will  be  fatal 
184. 

,106.  The  time  of  committing  an  offens 
(except  where  the  time  is  of  the  essence  of 
the  offense),  may  be  laid  on  any  day  previous 
to  the  finding  of  the  indictment,  during  the 
period  within  which  it  may  be  prosecuted. 
Shelton  v.  State,  1  Stew.  &  Port.  208. 

107.  Where  a  7ioUe  prosequi  was  entered 
to  the  first  of  the  two  counts  of  an  indict- 
ment, and  the  time  of  committing  the  of- 
fense was  only  shown  by  reference  to  the 
first  count,  it  was  held  that  the  defendant 
might  be  tried  and  convicted  on  the  second 
count.  Wills  V.  State,  8  Mo.  52. 
-  108.  When  the  time  becomes  material, 
either  as  constituting  an  element  of  the 
crime,  or  as  affording  the  accused  a  bar  to 
the  proceeding,  it  must  be  accurately  stated. 
State  V.  Robinson,  29  New  Hamp.  274; 
State  V.  Oaverly,  51  lb.  446. 

109.  When  the  offense  from  its  nature  pre- 
supposes a  succession  of  acts  to  constitute  it, 
it  maybe  charged  as  having  been  done  on  a 
given  day,  "and  on  divers  other  days  and 
times  between  that  day  and  the  day  of  the 
finding  of  the  indictment ;  "  and  evidence  is 
admissible  to  show  that  acts  were  committed 
at  any  time  during  the  period  mentioned. 
State  V.  Cofren,  48  Maine,  364. 

110.  When  an  averment  is  made  that  an 
offense  was  committed  between  a  day  certain 
and  the  day  of  finding  the  indictment,  and 
there  is  nothing  on  the  record  showing  the 


V 


534 


INDICTMENT. 


Body  of  the  Indictment. 


Time  and  Place. 


day  when  the  indictment  was  found,  it  is 
equivalent  to  an  averment  that  it  was  com- 
mitted between  the  first  day  alleged  and  the 
day  on  which  the  term  of  the  court  com- 
menced.    Com.  V.  "Wood,  4  Gray,  11. 

111.  Where  an  offense  which  may  have 
continuance  is  alleged  to  have  been  com- 
mitted on  a  day  certain,  and  on  divers  other 
days  which  are  uncertainly  alleged,  the  in- 
dictment is  effectual  for  the  act  alleged  on 
the  day  certain,  and  void  only  as  to  the  act 
alleged  on  the  other  days.  Wells  v.  Com. 
12  Gray,  326. 

112.  An  indictment  which  charges  that 
the  offense  was  committed  on  a  future  day 
is  a  fatal  defect  which  may  be  taken  advan- 
tage of  by  motion  in  arrest  of  judgment,  or 
by  demurrer.     State  v.  Litch,  33  Vt.  67. 

113.  The  indictment  will  be  good  if  the 
day  and  year  can  be  collected  from  the 
whole  statement,  though  they  be  not  ex- 
pressly averred.  Gill  v.  People,  5  N.  Y. 
Supm.  K  S.  308. 

114.  An  indictment  at  common  law  may 
describe  the  year  by  the  initials  A.  D.  and 
figures.  State  v.  Hodgeden,  3  Vt.  481.  An 
indictment  which,  in  stating  the  year,  omits 
the  words  "year  of  our  Lord,"  is  fatally 
defective.  Whiteside  v.  People,  Breese,  4 ; 
contra^  Engleman  v.  State,  2  Carter,  91 ; 
State  v.  Gilbert,  13  Vt.  647;  State  v.  Lane, 
4  Ired.  113;  Hall  v.  State,  3  Kelly,  18. 

115.  Although  the  offense  is  charged  to 
have  been  committed  after  the  finding  of  the 
indictment,  yet  if  a  day  certain  is  laid  be- 
fore, the  other  may  be  rejected  as  surplusage. 
State  V.  Woodman,  3  Hawks,  384. 

116.  Where  the  offense  was  charged  to 
have  been  committed  the  day  previous  to 
that  on  which  the  statute  under  which  the 
prosecution  was  had  went  into  operation, 
but  as  continuirg  to  a  day  subsequent,  it 
was  held  that  the  indictment  was  sufficient, 
i^ichol's  Case,  7  Gratt.  589. 

117.  An  indictment  which  alleges  that  the 
same  offense  was  committed  on  different 
days,  is  bad.  State  v.  Hendricks,  Cam.  & 
Nor.  369. 

118.  Where  a  statute  requires  that  the 
offense  shall  be  prosecuted  within  a  year,  an 
indictment  alleging  its  commission  within 


the  year  is  good  on  its  face,  and  if  the  proof 
shows  that  the  offense  was  committed  at  an 
anterior  time,  the  only  way  the  prisoner  can 
avail  himself  of  the  objection,  is  by  excep- 
tions or  motion  for  a  new  trial.  Strawn  v. 
State,  14  Ark.  549. 

119.  Under  a  statute  providing  that  night 
in  criminal  prosecutions  should  be  "  the  time 
between  one  hour  after  the  sunsetting  on  one 
day,  and  one  hour  before  sunrising  on  the 
next  day,"  it  was  held  that  an  indictment 
was  good  notwithstanding  it  described  an 
offense  as  committed  in  the  night  between 
sunset  and  sunrise.  Com.  v.  Lamb,  1  Gray, 
493. 

120.  Where  the  statute  limits  the  time  for 
prosecuting  an  offense,  the  indictment  must 
show  that  the  time  is  within  the  limit. 
State  V.  Rust,  8  Blackf.  195. 

121.  Use  of  figures.  Some  of  the  cases 
hold  that  words,  not  figures,  must  be  used 
in  designating  numbers,  or  in  charging  the 
date  of  the  offense.  U.  S.  v.  Prescott,  2 
Abb.169;  Chambers  v.  People,4  Scam.  351 ; 
State  V.  Raiford,  7  Porter,  101 ;  State  v. 
Seamons,  1  Greene,  418. 

122.  In  New  Jersey  it  has  been  held  error 
in  an  indictment,  to  express  numbers  or 
dates  by  figures,  except  where  the  indict- 
ment sets  out  the  tenor  of  the  instrument. 
Berrian  v.  State,  2  Zabr.  9.  It  has  been  held 
otherwise  in  Maine,  Mississippi  and  Louisi- 
ana. State  V.  Reed,  35  Maine,  489  ;  Kelly 
V.  State,  3  Smed.  &  Marsh.  518;  State  v. 
Egan,  10  La.  An.  698.  A  figure  omitted 
from  an  indictment  cannot  be  supplied. 
State  v.  Street,  1  Tayl.  158. 

123.  Rule  as  to  averment  of  place.  The 
place  of  the  alleged  crime  must  be  so  stated 
as  to  show  that  the  court  has  jurisdiction  of 
the  offense,  and  when  the  place  is  matter  of 
description, it  must  be  particularly  and  truly 
stated,  and  proved  as  laid.  State  v.  Cotton, 
4  Foster,  143 ;  McBride  v.  State,  10  Humph. 
615. 

124.  The  following  was  held  a  sufficient 
allegation  of  locality:  "That  Z.  P.,  late  of 
&c.,  at  the  township  aforesaid,  «ikc.,  one 
barn  of  the  property  of  N.  R.,  not  parcel  of 
the  dwelling-house  of  the  said  N.  R.,  there 
situate,  willfully  and  maliciously  did  bum 


INDICTMENT. 


335 


Body  of  the  Indictment. 


Time  and  Place. 


Statement  of  the  Offense. 


and  caused  to  be  burned.''      State  v.  Price, 
6  Halst.  203. 

125.  The  place  when;  the  offense  was 
committed  must  be  alleged  in  the  body  of 
the  indictment.  It  is  not  sufficient  to  charge 
it  in  the  margin  only.  State  v.  Cook,  1  Mo. 
547. 

126.  But  if  the  town  and  county  are  dis- 
tinctly averred  in  the  indictment,  it  is  suffi- 
cient without  alleging  that  the  offense  was 
committed  in  the  State ;  and  where  the 
county  is  stated  in  the  margin,  the  place 
may  be  described  in  the  town  of  A.,  "  in  the 
county  aforesaid."  State  v.  Wentworth,  37 
New  Hamp.  196. 

127.  An  indictment  was  entitled  in  the 
margin,  "  The  State  of  Alabama,  Butler 
county,"  and  in  the  body  of  the  indictment, 
it  was  recited  that  "  the  grand  jurors,"  «&c., 
*'of  the  county  of  Buter,  upon  their  oaths 
present, "  &c.  Held,  that  as  the  courts  were 
bound  to  know  the  names  of  all  the  counties 
in  the  State,  and  there  was  no  such  county 
as  Buter,  the  words  in  the  county  aforesaid 
must  refer  to  the  county  stated  in  the  mar- 
gin of  the  indictment.  Reeves  v.  State,  30 
Ala.  S3. 

128.  Under  the  statute  of  New  York  (3 
R.  S.  p.  737),  providing  that  when  an  offense 
shall  be  committed  on  the  boundary  of  two 
counties  or  within  500  yards  of  the  boundary, 
an  indictment  for  the  same  may  be  found, 
and  a  trial  and  conviction  had  in  either  of 
such  counties,  an  indictment  found  in  the 
county  of  A.  is  good  which  charges  the 
commission  of  the  crime  in  the  county  of  B., 
and  within  500  yards  of  the  boundary  line 
between  the  county  of  A.  and  the  county  of 
B.     People  v.  Davis,  56  N.  Y.  95. 

129.  An  indictment  against  a  town  for  not 
making  and  opening  a  road,  is  sufficient  if 
it  describe  the  road  as  leading  from  one 
terminus  in  various  directions,  through  the 
town,  to  another  terminus,  without  giving 
the  survey  by  courses  and  distances.  State 
V.  Newfane,  13  Vt.  433. 

130.  An  indictment  for  extortion  must 
state  where  the  offense  was  committed.  Hal- 
scy  v.  State,  1  South.  334. 

31L  An  indictment  for  fraudulently  mort- 
gaging real  estate  before  it  is  conveyed  must 


state  the  time  and  place  where  the  fraud 
was  committed.  State  v.  "Walker,  14  Mo. 
398. 

(d)  Statement  of  the  offeme. 

132.  Must  be  intelligible.  The  indict- 
ment is  good  if  it  contain  the  substance  of 
the  offense,  so  that  the  defendant  have  in- 
telligible nolice  of  the  charge  against  him. 
All  other  defects  are  cured  by  the  verdict 
and  judgment.  Thompson  v.  People,  3 
Parker,  308.  The  certainty  required  in  a 
declaration  is  sufficient  for  an  indictment. 
Sherban  v.  Com.  8  Watts,  313;  State  v.  Mc- 
Cormick,  3  Carter,  305. 

133.  When  the  varied  aspect  in  which  the 
acts  of  the  defendant  are  represented  in  the 
indictment  is  such  as  to  render  it  difficult 
to  determine  what  particular  offense  he  is 
legally  charged  with,  judgment  will  be 
arrested.  State  v.  Smith,  30  New  Hamji. 
399. 

134.  But  if  the  indictment  is  conveniently 
legible,  it  will  not  be  bad  simply  because  it 
contains  interlineations ;  and  in  the  absence 
of  anything  appearing  on  the  face  of  a  writ- 
ten instrument,  or  being  shown  extrinsically, 
tending  to  prove  that  interlineations  were 
made  subsequently  to  the  execution  of  the 
instrument,  it  will  be  presumed  that  they 
were  made  before  or  at  its  execution.  French 
v.  State,  13  Ind.  670. 

135.  An  indictment  is  sufficient  when  it 
substantially  charges  every  act  necessary  to 
constitute  the  offense  in  language  so  plain 
that  the  nature  of  the  offense  may  be  easily 
understood  by  the  jury.  Kersh  v.  State, 
34  Ga.  191.  Thus,  an  indictment  for  a  con- 
spiracy under  the  act  of  Congress  of  March 
3d,  1867  (14  U.  S.  Stats,  at  Large,  484),  w^as 
held  sufficient  which  alleged  an  unlawful 
combination,  and  specified  an  act  of  one  of 
the  conspirators  in  relation  thereto,  without 
showing  in  what  manner  the  act  tended  to 
effect  the  object  of  the  conspiracy.  U.  S.  v. 
Donau,  11  Blatchf.  168;  s.  c.  3  Green's  Crim. 
Reps.  306. 

136.  All  that  is  requisite  to  the  validity 
of  an  indictment,  is  that  it  inform  the  de- 
fendant of  the  grounds  of  the  charge  against 
him;  that  it  state  facts  sufficient  to  enable 


330 


INDICTMENT. 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


the  court  to  see  that  an  indictable  offense  is 
alleged ;  and  that  it  enable  tbe  defendant  to 
prepare  his  defense,  and  to  plead  the  judg- 
ment against  him  in  bar  of  a  second  prose- 
cution.    People  V.  Graves,  5  Parker,  134. 

137.  It  will  not  be  presumed  that  a  differ- 
ent offense  is  intended  in  the  indictment 
from  that  charged  in  the  complaint  before 
the  committing  magistrate,  because  circum- 
stances of  aggravation  set  forth  in  the  com- 
plaint in  describing  an  assault  are  omitted 
in  the  indictment.  State  v.  Bean,  36  New 
Hamp.  122;  apjjroved  in  State  v.  Stevens, 
lb.  59. 

133.  Bad  spelling  which  does  not  obscure 
or  change  the  meaning  will  not  render  an 
indictment  invalid.  State  v.  Earp,  41  Texas, 
487 ;  Koontz  v.  State,  lb.  570.  Therefore, 
an  indictment  charging  that  the  offense  was 
committed  "in  tlie'year  one  thousand  eight 
hundred  and  fifty-too,"  was  held  good. 
State  V.  Hedge,  6  Ind.  330.  But  the  omis- 
sion of  a  letter  wliich  makes  a  different 
^  word  or  meaning,  is  fatal  to  an  indictment. 
Com.  V.  Riley,  Thach.  Crim.  Cas.  67. 

139.  It  is  error  in  the  court  to  leave  it  to 
the  jury  to  determine  whether  certain  words 
constitute  a  part  of  the  indictment,  or  have 
been  stricken  from  it.  Com.  v.  Davis,  11 
Gray,  4. 

140.  A  count  in  an  indictment  may  refer 
to  averments  in  a  previous  count,  to  avoid 
repetition.     People  v.  Graves,  5  Parker,  134. 

141.  In  New  York,  an  argumentative  alle- 
gation of  the  offense,  when  it  does  not  tend 
to  prejudice  the  defendant,  will  not  render 
the  indictment  invalid.  3  N.  Y.  R.  S.  5th 
ed.  1019,  1020,  §54;  People  v.  Rynders,  12 
"Wend.  425  ;  People  v.  Charles,  3  Denio,  212; 
s.  c.  1  N.  Y.  184,  185. 

142.  The  indictment  need  not  charge 
whether  it  is  for  the  first  or  second  offense, 
although  the  latter  is  punishable  differently 
from  the  former.  State  v.  Smith,  8  Rich, 
460. 

143.  Averment  of  means.  When  the  act 
is  not  in  itself  criminal  or  unlawful  (as 
cheating  or  defrauding  a  person  of  his  prop- 
erty), the  unlawful  means  by  which  it  is  to 
be  accomplished  must  be  distinctly  set  out. 
State  V.  Mayberry,  48  Maine,  218.     But  an 


indictment  which  alleged  that  the  defend- 
ant "  in  some  way  and  manner,  and  by 
some  means,  instrument  and  weapon  to  the 
jurors  unknown,  killed  and  murdered  the 
deceased,"  was  held  sufficient.  State  v. 
Burke,  54  New  Hamp.  92 ;  s.  c.  2  Green's 
Crim.  Reps.  365.  And  the  same  was  held 
of  an  indictment  which  charged  that  the 
defendant  produced  an  abortion  "  with  a 
certain  instrument  to  the  jurors  unknown." 
State  V.  Wood,  53  New  Hamp.  484  ;  s.  c.  2 
Green's  Crim.  Reps.  346. 

144.  Where  the  principal  in  the  second 
degree  is  charged  as  an  aider  or  abettor,  it  is 
not  necessary  to  set  forth  in  the  indictment 
the  means  or  manner  by  which  he  became 
thus  guilty,  but  merely  to  describe  him  gen- 
erally as  being  present  aiding  and  abetting. 
State  V.  White,  7  La.  An.  531. 

145.  A  count  in  an  indictment  may  charge 
the  use  of  different  prohibited  means  to 
perpetrate  the  crime,  charging  all  as  consti- 
tuting a  single  felony.  People  v.  Davis,  56 
N.  Y.  95. 

146.  An  indictment  for  a  malicious  tres- 
pass need  not  state  the  means  employed. 
State  v.  Merrill,  3  Blackf.  346. 

147.  Office  of  videlicet.  It  is  the  office 
of  a  videlicet  to  restrain  or  limit  the  gener- 
ality of  preceding  words,  and  in  some  in- 
stances to  explain  them.  If  what  precedes 
be  matter  of  direct  averment  and  material, 
what  is  stated  under  a  videlicet  will  be 
deemed  material  and  traversable.  Crichtou 
V.  People,  6  Parker,  363. 

148.  One  count  sufficient.  An  indict- 
ment which  contains  one  good  count  will 
sustain  a  conviction  irrespective  of  other 
defective  counts.  People  v.  Davis,  56  N.  Y. 
95;  State  v.  Stebbins,  29  COnn.  463;  State 
V.  Burke,  38  Maine,  574;  State  v.  Scripture, " 
42  New  Hamp.  485 ;  People  v.  Gilkinson,  4 
Parker,  26 ;  Crichton  v.  People,  6  lb.  363 ; 
State  V.  Mathis,  3  Ark.  84 ;  State  v.  Andrews, 
17  Maine,  103;  Bullock  v.  State,  10  Ga.  46; 
People  V.  Stein,  1  Parker,  203  ;  U.  S.  v.  Bur- 
roughs, 3  McLean,  405  ;  State  v.  Davidson, 
12  Vt.  300 ;  State  v.  Miller,  7  Ired.  275 ; 
State  V.  Bugbee,  22  Vt.  32. 

149.  Must  state  facts  constituting  an 
offense.     An  indictment  alleged  that  A.,  B. 


INDICTMENT. 


337 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


and  C,  -with  force  of  arms,  unlawfully  and 
riotously  did  assemble  to  disturb  the  peace 
of  the  State,  and  did  then  and  there  being 
so  assembled  make  a  great  noise  and  dis- 
turbance in  and  near  the  dwelling-house  of 
one  W.  S.,  proclaiming  that  the  said  W. 
S.  and  his  wife  were  persons  of  color,  offer- 
ing them  for  sale  at  auction,  and  calling 
them  vulgar  and  opi^robrious  names,  all  of 
which  was  done  in  a  loud  voice,  so  that  the 
same  could  be  heard  at  a  great  distance,  to 
the  great  damage  and  terror  of  the  said  W. 
S.  and  wife,  and  to  the  common  nuisance. 
Held  that  the  indictment  did  not  charge 
any  criminal  offense,  for  the  reason  that  it 
did  not  state  that  the  said  "W.  S.  or  his 
wife  was  in  the  house  at  the  time.  State  v. 
H.atchcock,  7  Ired.  52. 

150.  An  allegation  that  liquor  was  sold 
by  the  defendant  and  drank  in  his  house  is 
not  equivalent  to  the  averment  that  he  sold 
it  to  be  drunk  there.  State  v.  Freeman,  6 
Blackf.  248. 

151.  An  attempt  to  commit  a  crime  neces- 
sarily includes  the  intent,  and  also  an  act  or 
endeavor  adapted  and  intended  to  effectuate 
the  purpose,  and  both  must  be  specifically 
alleged  and  proved.  The  averment  that  the 
act  was  by  picking  the  pocket  is  uncertain 
and  equivocal,  but  not  that  the  attempt  was 
"  by  thrusting  the  hand  into  the  pocket," 
although  it  was  not  alleged  that  there  was 
anything  in  the  pocket.  State  v.  Wilson, 
30  Conn.  500. 

152.  An  indictment  for  an  assault  with 
intent  to  murder  must  specify  the  acts  which 
constituted  the  assault.  Beasley  v.  State,  18 
Ala.  535. 

153.  An  indictment  for  administering  a 
drug  to  a  female  for  the  puijjose  of  procur- 
ing an  aboi*tion  must  charge  that  an  abortion 
occurred,  and  that  the  woman  was  quick 
with  child  at  the  time.  Com.  v.  Bangs,  9 
Mass.  387. 

154.  If  an  offense  committed  on  board  of 
a  vessel  is  of  such  a  character  that  the  court 
can  entertain  the  case  although  the  vessel 
has  no  national  character,  the  possible 
foreign  nationality  of  the  vessel  need  not  be 
negatived  in  the  indictment.  U.  S.  v.  De- 
marchi,  5  BUitchf.  84. 

22 


155.  An  indictment  against  a  justice  of 
the  peace  for  corruption  in  office  must  set 
out  the  facts  constituting  the  offense.  State 
V.  Zachary,  Busbee,  N.  C.  432. 

156.  An  indictment  for  extortion  in  tak- 
ing what  was  not  due  must  allege  that  there 
was  nothing  due,  and  where  the  charge  is 
for  taking  more  than  was  due,  it  must  be 
alleged  in  the  indictment  how  much  was 
due.     State  v.  Coggswell,  3  Blackf.  54. 

157.  An  indictment  against  an  officer  for 
misfeasance  is  sufficient  which  states  that  the 
defendant  was  duly  elected  to  office  by  the 
legal  voters,  &c.,  and  entered  upon  the  dis- 
charge of  his  office.  Edge  v.  Com.  7  Barr, 
275. 

158.  An  indictment  for  resisting  an  officer 
in  the  discharge  of  his  duty  need  not  allege 
the  specific  acts  of  resistance ;  charging  an 
assault  upon  a  deputy  sheriff  legally  ap- 
pointed and  duly  qualified  is  sufficient. 
State  V.  Copp,  15  New  Hamp.  212.  But  the 
process  charged  to  have  been  in  the  hands 
of  an  officer  must  be  set  out  or  alleged  to 
have  been  lawful  process.  Cantrill  v.  Peo- 
ple, 3  Gilman,  356 ;  State  v.  Henderson,  15 
Mo.  486 ;  and  it  must  be  charged  that  he 
was  an  officer  and  acting  in  that  capacity. 
McQuoid  V.  People,  3  Gilman,  76. 

159.  An  indictment  for  obstructing  public 
officers  need  not  state  the  particular  exer- 
cise of  office  in  which  they  were  engaged  at 
the  time,  or  the  particular  act  and  circum- 
stances of  obstruction.     U.  S.  v.  Bachelder, 

2  Gallis.  15. 

160.  An  indictment  for  refusing  to  assist 
an  officer  in  securing  a  person  whom  he  has 
arrested  must  set  forth  the  authority  by 
which  the  arrest  was  made.     State  v.  Shaw, 

3  Ired.  20. 

161.  An  indictment  charging  that  the  de- 
fendant, in  and  upon  the  public  highway, 
unlawfully  did  erect,  build,  and  put  up  a 
number  of  wooden  sheds  and  buildings,  was 
held  bad  for  uncertainty,  in  not  stating  the 
exact  number  of  the  sheds.  Com.  v.  Hall,  15 
Mass.  240. 

162.  Where  an  indictment  for  money  lost 
on  a  bet  upon  the  result  of  a  game  of  cards, 
played  by  the  defendant  and  others,  did  not 
state  whether  the  bet  was  made  with  the 


338 


INDICTMENT. 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


persons  played  with,  or  with  a  third  person, 
it  was  held  defective.  State  v.  Stallings,  3 
lud.  531. 

163.  An  indictment  for  keeping  a  ten-pin 
alley  without  a  license,  should  charge  that 
the  defendant  "  was  engaged  in  the  business 
or  employment  of  keeping  "  such  an  estab- 
lishment. Simply  alleging  that  he  "  did  keep 
(me"  is  not  sufficient.  Eubanks  v.  State,  17 
Ala.  181. 

164.  An  indictment  for  an  act  which  is 
made  criminal  by  statute,  under  certain  cir- 
cumstances, which  does  not  allege  the  exist- 
ence of  those  circumstances,  is  bad.  Com.  v. 
Clark,  2  Ashm.  105.  Where  a  statute  creates 
an  offense,  or  enlarges  the  punishment,  the 
indictment  must  state  the  circumstances 
which  constitute  the  offense  or  increase  the 
punishment.  Davis  v.  State,  39  Md.  355 ; 
s.  0.  2  Green's  Crim.  Reps.  381. 

165.  An  indictment  insufficient  in  not 
charging  facts  necessary  to  constitute  a  fel- 
ony, may  yet  authorize  a  juiy  to  convict  for 
a  misdemeanor.    Com.  v.  Squire,  1  Mete.  258. 

166.  It  is  no  defense  to  an  indictment,  that 
the  defendant  has  committed  a  higher  offense 
than  the  one  alleged.  Com.  v.  Walker,  108 
Mass.  309. 

167.  Charging  offense  in  different  ways. 
The  offense  may  be  charged  in  different  ways 
in  several  counts;  and  if  the  different  counts 
are  inserted  in  good  faith,  for  the  purpose  of 
making  a  single  charge,  the  court  will  not 
compel  the  prosecution  to  elect.  Nelson  v. 
People,  5  Parker,  39 ;  Lanergan  v.  People,  6 
lb.  209. 

168.  Where  the  indictment  shows  that 
each  count  relates  to  the  same  transaction, 
and  that  they  are  only  varied  in  order  to 
meet  the  proof,  the  court  will  not  compel 
the  prosecutor  to  elect  any  one  count  ujjon 
which  to  proceed  to  trial.  When  an  elec- 
tion is  proper  the  application  is  addressed 
to  the  discretion  of  the  court.  People  v. 
White,  55  Barb.  606. 

169.  On  a  trial  for  murder,  it  is  not  error 
in  the  court  to  refuse  to  require  the  public 
prosecutor  to  elect  between  the  three  counts 
in  the  indictment  charging  that  the  crime 
was  committed  in  three  different  ways.  Lan- 
ergan v.  People,  sujtra. 


170.  When  a  single  offense  is  described  in 
different  counts,  it  is  unnecessary  to  allege 
that  the  offense  described  in  each  count  is 
not  different  from  that  described  in  the 
others.     State  v.  Rust,  35  New  Hamp.  438. 

171.  Charging  several  acts.  The  in- 
dictment may  ciiarge  several  felonious  acts 
which  in  themselves  separately  considered 
are  distinct  offenses,  when  they  collectively 
constitute  but  one  offense,  and  may  set  forth 
in  different  counts  various  versions  of  the 
same  charge  or  transaction,  alleging  different 
grades  or  degrees  of  the  princijoal  offense, 
provided  as  thus  alleged,  they  may  all  be 
merged  in  one,  and  do  not  necessarily  con- 
stitute different  and  distinct  offenses.  But 
each  count  should  contain  only  one  version 
of  one  offense,  or  of  one  degree  of  the  prin- 
cipal offense.  And  there  must  not  be  alleged 
in  the  same  count  facts  which  constitute  dis- 
tinct offenses.  State  v.  Smith,  31  Maine, 
386 ;  s.  c.  2  Green's  Crim.  Reps.  462.  Forg- 
ing an  account,  and  an  affidavit  and  certifi- 
cate to  the  same,  alleged  as  one  act,  may  be 
set  forth  in  a  single  count.  But  if  charged 
as  separate  and  distinct  offenses,  the  count 
will  be  bad  for  duplicity.  Rosekrans  v.  Peo- 
ple, 5  N.  Y.  Supm.  N.  S.  467 ;  Harris  v.  Peo- 
ple, 6  lb.  206. 

172.  Where  in  defining  an  offense,  a  stat- 
ute enumerates  a  series  of  acts,  either  of 
which  separately  or  all  together  may  consti- 
tute the  offense,  all  such  acts  may  be  charged 
in  a  single  count ;  as  the  forging  of  an  in- 
dorsement on  a  draft,  and  uttering  and  pass- 
ing the  draft  knowing  the  forged  indorse- 
ment to  be  thereon ;  or  forging  an  indorse- 
ment on  a  draft,  and  after  it  is  indorsed  by 
other  jiersons,  uttering  it.  People  v.  Frank, 
28  Cal.  507 ;  People  v.  De  La  Guerra,  31  lb. 
459.  An  indictment  alleging  that  the  de- 
fendant did  falsely  make  and  counterfeit  a 
written  instrument,  is  not  bad  for  duplicity. 
State  V.  Hastings,  53  New  Hamp.  452;  s.  c. 
2  Green's  Crim.  Reps.  334. 

173.  An  indictment  for  administering 
poison  is  not  bad  for  duplicity,  which 
charges  that  the  defendant  "  did  administer 
to,  and  cause  to  be  administered  to,  and 
taken."     Ben  v.  State,  22  Ala.  9. 

174.  Under  a  statute  which  forbids  the 


mDICTMENT. 


339 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


selling  or  offering  for  sale  of  tickets,  an  in- 
dictment which  charged  that  the  defendant 
offered  for  sale,  and  actually  sold  such  tick- 
ets, was  held  bad  for  duplicity.  Com.  v. 
Eaton,  15  Pick.  273. 

175.  An  indictment  which  charged  in  one 
count  shopbreaking  and  larceny  was  held 
good.     Com.  V.  Tuck,  20  Pick.  356. 

176.  An  indictment  which  charged  that 
the  defendant  did  unlawfully,  maliciously, 
•&C.,  destroy  and  injure,  and  cause  to  be  de- 
stroyed and  injured,  was  held  not  objec- 
tionable. State  V.  Slocum,  8  Blackf.  315 ; 
State  V.  Kuns,  5  lb.  314.  And  the  same 
was  held  of  an  indictment  which  charged 
that  the  defendant  sold  spirituous  liquors 
without  a  license,  at  his  storehouse  and 
dwelling-house,  in  P.  Conlay  v.  State,  5 
West  Va.  522 ;  s.  c.  2  Green's  Crim.  Reps. 
675. 

177.  But  an  indictment  which  alleged  that 
the  defendant,  on  a  certain  day,  set  fire  to 
and  burned  a  stack  of  hay,  and  on  the  same 
day  also  burned  a  building  used  as  a  stable 
and  granary,  was  held  bad  for  duplicity. 
State  V.  Fidment,  35  Iowa,  541  ;  s.  c.  1 
Green's  Crim.  Reps.  632. 

178.  All  indictment  is  not  bad  for  du- 
plicity which,  in  one  count,  charges  the  de- 
fendant with  keeping  a  gambling  house, 
and  in  another  count  with  permitting  other 
persons,  in  a  place  under  his  control,  to  play 
at  cards  or  other  games  for  money.  State 
V.  Bitting,  13  Iowa,  600. 

179.  An  indictment  charging  that  the  de- 
fendant "  did  set  up  and  promote  an  ex- 
hibition," is  not  bad  for  duplicity.  Com.  v. 
Twitchell,  4  Cush.  75. 

180.  "Where  a  statute  makes  either  of  two 
or  more  distinct  acts  connected  with  the 
same  general  offense,  and  subject  to  the 
same  punishment,  indictable  separately  when 
committed  by  different  persons,  or  at  differ- 
ent times,  they  may,  when  committed  by 
the  same  person,  at  the  same  time,  be  joined 
in  one  count,  as  constituting  but  one  offense. 
Byrne  v.  State,  13  Wis.  519. 

181.  Disjunctive  averment.  The  indict- 
ment should  not  charge  the  offense  dis- 
junctively, as  that  the  defendant  "  did  take 
or  cause  to  be  taken."     State  v.  O'Bouuor,  1 


Bail.  144 ;  unless  the  word  "  or  "  is  used  in 
the  sense  of  "to  wit  " — that  is,  in  explana- 
tion of  what  precedes.  Clifford  v.  State,  29 
Wis.  327. 

182.  Where  a  statute  enumerates  several 
acts  disjunctively,  which  separately  or  to- 
gether constitute  the  offense,  the  indict- 
ment, if  it  charges  more  than  one  of  them, 
should  do  so  in  the  conjunctive  ;  otherwise 
it  will  be  bad  for  uncertainty.  But  this  rule 
does  not  apply  to  cases  where  the  words  of 
the  statute,  which  are  used  disjunctively, 
are  synonymous.  People  v.  Tomlinson,  35 
Cal.  503;  Blemer  v.  People,  76  111.  265.  It 
was  held  not  error  to  use  the  disjunctive  in 
describing  the  various  kinds  of  liquor 
charged  in  the  indictment  to  have  been  sold. 
Cunningham  v.  State,  5  West  Va.  508  ;  s.  c. 
2  Green's  Crim.  Reps.  669. 

183.  Under  a  statute  punishing  the  "  burn- 
ing, or  causing  to  be  burned,"  an  indictment 
is  good  which  charges  that  the  defendant 
" burned  and  caused  to  be  burned."  State 
V.  Price,  6  Halst.  303. 

184.  When  the  several  acts  specified  in  a 
statute  are  charged  conjunctively,  a  convic- 
tion or  acquittal  is  a  bar  to  a  subsequent 
prosecution,  whether  pleaded  separately  or 
together.     Clifford  v.  State,  29  Wis.  327. 

185.  Charging  distinct  offenses.  In 
cases  of  felony,  no  more  than  one  distinct  of- 
fense should  be  charged  in  the  same  indict- 
ment. Wright  V.  State,  4  Humph.  194  ; 
U.  S.  V.  Dickinson,  3  McLean,  325  ;  Bullock 
V.  State,  10  Ga.  46. 

186.  Where  an  indictment  charges  two 
distinct  offenses  in  the  same  count,  it  is  bad 
for  duplicity,  and  a  conviction  on  it  will  be 
reversed  on  error.  Reed  v.  People,  1  Park- 
er, 481. 

187.  An  indictment  charging  three  dis- 
tinct violations  of  a  statute  in  one  count,  is 
bad  for  duplicity.  State  v.  Shields,  8 
Blackf.  151. 

188.  An  indictment  charging  rude  be- 
havior in  a  meeting-house,  and  disturbing 
public  worship,  was  held  bad.  Com.  v. 
Symonds,  3  Mass.  163. 

189.  An  indictment  which  charges  tiie  de- 
fendant with  conspiring  falsely  to  charge 
another  with  a  crime  of  which  he  is  inno- 


340 


INDICTMENT. 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


cent,  and  with  conspiring  to  cause  him  to  be 
falsely  charged  with  such  oflense  by  others, 
and  with  prosecuting  or  causing  him  to  be 
prosecuted  by  others  for  such  offense,  is  bad, 
tlie  offenses  being  different,  and  a  convic- 
tion not  showing  for  which  the  defendants 
were  found  guilty.  State  v.  Gary,  36  New 
Hamp.  359. 

190.  An  indictment  which  charged  the 
defendant  with  being  an  overseer  of  the 
road  leading  from  R.  to  M.,  and  that  he  per- 
mitted said  road  to  be  out  of  repair  and 
ruinous,  and  that  said  road  was  not  careful- 
ly measured,  and  marks  and  posts  of  dura- 
ble wood  at  each  mile  set  upon  said  road, 
was  held  bad  for  duplicity.  Greenlow  v. 
State,  4  Humph.  25. 

191.  Joinder  of  offenses.  Offenses  com- 
mitted by  the  same  person  may  be  included 
in  the  same  indictment  in  different  counts, 
when  they  are  of  the  same  general  nature, 
and  belong  to  the  same  family  of  crimes,  and 
where  the  mode  of  trial  and  nature  of  the 
punishment  are  also  the  same,  although 
punishable  with  different  degreejof  severity. 
In  Alabama,  obtaining  money  by  false  pre- 
tenses, and  larceny  from  the  person,  may  be 
so  included.  Johnson  v.  State,  29  Ala.  62; 
also  embezzlement  and  larceny  from  a  store- 
house. Mayo  V.  State,  30  lb.  32.  See  also 
Cowley  V.  State,  37  lb.  152 ;  Sarah  v.  State, 
28  Miss.  267 ;  State  v.  Burke,  38  Maine,  574. 

192.  The  joinder  of  the  following  offenses 
has  been  held  proper:  Murder  and  man- 
slaughter ;  forging  a  check,  and  publishing 
it  knowing  it  to  be  false  ;  burglary  and 
larceny ;  breaking  and  entering  with  intent 
to  steal  the  goods  of  another  person,  and 
breaking  and  entering  with  an  intent  to 
murder ;  maiming  another,  and  shooting  at 
him  with  intent  to  kill,  &c.  Baker  v. 
State,  4  Ark.  58 ;  State  v.  Flye,  26  Maine, 
312;  People  v.  Austin,  1  Parker,  154  ;  State 
V.  Patterson,  1  Woodbury  and  Minot.  305  ; 
Com.  V.  Manson,  2  Ashm.  131;  McGregg  v. 
State,  4  Blackf.  101 ;  State  v.  Colman,  5 
Porter,  32  ;  Wash  v.  State,  14  Smed.  & 
Marsh.  129;  People  v.  Baker,  3  Hill,  159; 
Carlton  v.  Com.  5  Mete.  532 ;  State  v.  Mc- 
Allister, 13  Maine,  374  ;  Stephen  v.  State,  11 
Ga.  225. 


193.  An  indictment  charged  in  the  first 
count,  that  the  defendant  stole  W.,  a  slave^ 
the  property  of  A. ;  in  the  second  count,  the 
stealing  of  W.,  a  slave,  the  property  of  B.  ; 
iu  the  third  count,  the  stealing  of  a  gray 
mare,  the  property  of  C. ;  and  in  the  fourth 
count,  the  stealing  of  a  bay  horse,  the  prop- 
erty of  D.  Held  that  the  joinder  of  several 
distinct  felonies  was  not  a  ground  either  of 
demurrer  or  arrest  of  judgment.  Cash  v.. 
State,  10  Humph.  111.  And  see  State  v. 
Hogan,  R.  M.  Charlt.474;  Com.v.  McChord, 
2  Dana,  243. 

194.  The  rule  which  forbids  the  charging 
of  several  distinct  offenses  is  not  applicable 
to  cumulative  offenses  included  in  the  same 
statute.     State  v.  Markham,  15  La.  An.  498. 

195.  Although  a  felony  and  misdemeanor 
ouglrt  not  in  general  to  be  joined,  yet  it  is 
the  practice  in  Massachusetts  to  sustain  a 
joinder  of  such  counts  when  they  are  for 
substantially  the  same  offense,  as  for  a  sim- 
ple assault,  and  a  felonious  assault.  Com. 
V.  McLaughlin,  12"Cush.  612-615. 

196.  In  New  Hampshire,  where  the  indict- 
ment charges  but  one  transaction,  a  count 
for  a  misdemeanor  may  be  joined  with  a 
count  for  a  felony;  as  embezzlement,  and 
obtaining  the  same  money  by  false  pretenses. 
State  V.  Lincoln,  49  New  Hamp.  464. 

197.  In  Maryland,  an  indictment  may 
charge  a  misdemeanor  in  one  count,  and  a 
felony  in  another  count.  Burk  v.  State,  3 
Har.  &  Johns.  426. 

198.  An  indictment  is  bad  in  which  counts 
for  conspiracy  are  joined  with  counts  for 
murder.     U.  S.  v.  Scott,  4  Biss.  29. 

199.  Where  distinct  felonies  are  charged, 
the  court  may  compel  the  prosecution  to 
elect  on  which  charge  it  will  proceed.  But 
the  refusal  to  compel  such  election  cannot 
be  alleged  for  error.  State  v.  Hood,  51 
Maine,  363 ;  Cook  v.  People,  2  N.  Y.  Supm. 
N.  S.  404 ;  People  v.  Baker,  3  Hill,  158. 

200.  Charging  several  with  different 
offenses.  In  general,  all  the  defendants  in 
a  joint  indictment  must  have  been  guilty  of 
the  same  offense,  though  they  may  have  been 
guilty  in  different  degrees.  White  v.  Peo- 
ple, 32  N.  Y.  465. 

201.  Therefore     an      indictment    which 


INDICTMENT. 


341 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


charges  several  defendants  with  a  number  of 
offenses  committed  by  them  independent!}' 
of  each  other,  some  having  been  committed 
at  one  time  and  some  at  another,  is  fatally 
defective.     Elliott  v.  State,  26  Ala.  78. 

202.  But  several  offenders  may,  in  some 
cases,  be  included  in  the  same  indictment 
for  different  offenses  of  the  same  kind,  the 
Avord  separately  being  inserted  which  makes 
it  several  as  to  each  of  them ;  though  the 
court  will  quash  the  indictment  if  inconven- 
ience arise  from  preferring  the  charge  in 
that  mode.  Lewellen  v.  State,  18  Texas, 
538. 

203.  Charging  time  of  enactment  of 
statute.  An  indictment  is  not  rendered  in- 
valid by  the  misstatement  of  the  time  of  the 
enactment  of  a  statute  under  which  the  de- 
fendant was  indicted;  the  time  of  such 
enactment  being  immaterial,  provided  the 
statute  was  in  force  when  the  offense  charged 
in  the  indictment  was  committed.  People 
V.  Reed,  47  Barb.  235. 

204.  Recital  of  statute.  If  the  indict- 
ment purport  to  recite  the  statute,  a  slight 
variance  wnll  be  fatal.  Butler  v.  State,  3 
McCord,  383. 

205.  An  indictment  on  a  public  statute, 
need  not  recite  it,  or  specially  refer  to  it. 
It  is  sufficient  to  conclude  ' '  against  the  form 
of  the  statute  in  such  case  made  and  pro- 
vided."    Com.  V.  Hoye,  11  Gray,  462. 

206.  An  indictment  for  perjury,  alleging 
that  the  same  was  committed  "in  contempt 
of  the  laws  of  the  United  States  of  America," 
without  referring  to  the  statute,  cannot  be 
sustained.     U.  S.  v.  Andrews,  2  Paine,  451. 

207.  Describing  statutory  offense.     An 

f  indictment  upon  a  statute  must  allege  all 
the  facts  and  circumstances  which  constitute 
the  statutory  offense ;  and  the  prosecution  is 
bound  to  prove  them.  Wood  v.  People,  53 
N.  Y.  511. 

208.  Where  the  essential  ingredient  of  an 
aggravated  offense  charged  upon  the  accused, 
is,  that  the  alleged  felony  was  committed 
after  a  former  conviction  of  an  offense  pun- 
ishable by  imprisonment  in  a  State  prison 
and  a  discharge  ' '  eitlier  upon  being  par- 
doned, or  upon  the  expiration  of  his  sen- 
tence," the  discharge  in  one   of    the  ways 


mentioned  in  the  statute  is  a  fact  material 
and  necessary  to  be  alleged  and  proved. 
Mere  lapse  of  time  will  not  authorize  the 
presumption  that  he  had  been  imprisoned 
and  discharged  upon  the  expiration  of  the 
term  for  which  he  was  sentenced,  so  as  to 
cast  the  burden  of  proof  upon  him  that  lie 
was  not  thus  discharged.  lb.  Folger  and 
Andrews,  JJ.,  dissenting. 

209.  Where  a  statute  contains  a  new  of- 
ense  unknown  to  the  common  law,  and 
describes  its  ingredients,  an  indictment  un- 
der it  must  conform,  substantially  at  least, 
to  the  description  thus  given.  Bryan  v. 
State,  45  Ala.  86. 

210.  Where  the  offense  is  punishable  at 
common  law  only,  and  the  indictment  avers 
it  to  have  been  committed  against  the  form 
of  the  statute,  such  averment  may  be  re- 
jected as  surplusage.  But  when  what  was  a 
misdemeanor  only  at  common  law  is  made 
punishable  as  a  felony  by  statute,  or  where  the 
statute  declares  a  common-law  offense,  com- 
mitted under  peculiar  circumstances  not 
necessarily  included  in  the  original  offense, 
punishable  in  a  different  manner,  an  indict- 
ment for  the  statute  offense,  if  bad  for  insuffi- 
cient description,will  not  be  good  at  common 
law.     State  v.  Gove,  34  New  Hamp.  510. 

211.  Where  a  statute  prohibits  an  act 
which  was  before  lawful,  and  enforces  the 
prohibition  with  a  penalty,  and  a  succeeding 
statute,  or  the  same  statute  in  a  substantive 
clause,  prescribes  a  mode  of  proceeding  for 
the  penalty  different  from  that  by  indict- 
ment, the  prosecutor  may  notwithstilnding, 
at  his  option,  proceed  by  indictment  under 
the  prohibitory  clause  as  for  a  misdemeanor 
at  common  law,  or  in  the  manner  pointed 
out  by  the  statute.  Pliillips  v.  State,  19 
Texas,  158. 

212.  An  indictment  upon  a  penal  statute 
must  state  all  of  the  circumstances  which 
constitute  the  definition  of  the  offense  in  the 
act,  so  as  to  bring  the  defendant  precisely 
within  it.  An  indictment  under  the  statute 
of  Maine  (R.  S.  of  1840,  ch.  157,  §  5),  for 
having  in  possession  counterfeit  bank  bills, 
which  substitutes  the  word  "similar"  for 
"  in  the  siu\ilitude  of,"  which  latter  is  the 
language  of  the  statute,  is  insufficient ;  and 


V 


342 


INDICTMENT. 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


the  bills  must  have  the  external  appearance 
of  those  issued  by  the  bank  named,  in  order 
to  come  within  the  meaning  of  the  statute. 
A  paper  containing  all  the  words  and  figures 
upon  a  genuine  bank  bill,  with  no  other  re- 
semblance or  likeness,  cannot  be  said  to  be 
in  the  similitude  of  the  latter.  State  v. 
McKenzie,  42  Maine,  392. 

213.  In  Maine,  uuder  the  statute  (R.  S. 
ch.  51,  §  36),  which  makes  railroad  com- 
panies liable  to  a  forfeiture,  for  loss  of  life 
through  negligence  to  be  recovered  by 
indictment,  to  the  use  of  the  widow,  if  no 
children;  to  the  children,  if  no  widow;  and 
if  both,  to  her  and  them  equally ;  the  in- 
dictment must  allege  that  the  person  killed 
left  a  widow,  or  heirs,  or  both,  and  state 
their  names.  State  v.  Grand  Trunk  R.  R. 
Co.  60  Maine,  145.  The  remedy  by  indict- 
ment under  the  foregoing  statute  is  limited 
to  cases  where  the  person  injured  dies  im- 
mediately; and  is  not  applicable  where  the 
person  killed  was  at  the  time  an  employee  of 
the  road.  State  t.  Centr.  K.  R.  Co.  lb.  490 ; 
s.  p.  61  lb.  114. 

214.  When  a  statute  injposes  a  higher 
penalty  upon  a  second  or  third  conviction,  it 
makes  the  prior  conviction  a  part  of  the 
description  of  the  offense  intended  to  be 
punished;  and  therefore  the  fact  of  such 
prior  conviction  must  be  charged  as  well  as 
proved.  Where  the  defendant  is  found 
guilty  on  both  counts  of  the  indictment,  it 
is  erroneous  to  impose  such  a  penalty  on  the 
second  count.     Tuttle  v.  Com.  2  Gray,  505. 

215.  In  New  York,  an  indictment  under 
the  statute  in  the  county  where  the  arrest 
was  made,  for  an  unlawful  marriage  in  an- 
other county,  must  allege  that  the  prisoner 
was  arrested  in  the  county  in  which  he  is 
indicted,  and  it  is  not  enough  that  this  fact 
is  stated  in  the  caption  to  the  indictment  or 
record  of  conviction.  Houser  v.  People,  46 
Barb.  33. 

216.  Where  a  statute  is  framed  to  meet 
the  relations  of  parties  to  each  other,  and  to 
prevent  fraud,  and  the  language  of  it  is 
elliptical,  lea-\dng  some  of  the  circumstances 
expressive  of  the  relation  of  the  parties  to 
be  supplied  by  intendment,  the  facts  and 
circumstances    constituting    such     relation 


must  be  alleged  in  the  indictment,  though 
not  expressed  in  the  words  of  the  statute. 
People  v.  Wilber,  4  Parker,  19. 

217.  Where  such  a  statute  was  designed 
to  prevent  frauds  upon  parties  supplying  to 
other  parties  illuminating  gas  for  consump- 
tion, passing  by  the  ordinary  means  of  con- 
ducting it  through  a  meter  provided  for 
measuring  and  registering  the  quantity  con- 
sumed, an  indictment  which  omitted  to 
allege  that  the  company  supplied  the  gas 
consumed  at  the  burners,  was  held  fatally 
defective.     lb. 

218.  An  indictment  under  the  civil  rights 
bill  of  May  31, 1870,  should  charge  that  the 
offense  was  committed  against  a  person  on 
account  of  his  race,  color,  or  previous  con- 
dition of  servitude.  U.  S.  v.  Cruikshank,  1 
Woods,  308. 

219.  When  the  want  of  consent  is  a  sub- 
stantive part  of  the  offense  prohibited  by  a 
statute,  the  indictment  must  allege  that  the 
act  was  done  without  consent.  State  v. 
Whittier,  21  Maine,  341. 

220.  Where  a  statute  describes  an  offense 
as  a  crime  or  misdemeanor  of  a  certain  grade, 
the  indictment  need  not  charge  the  legal 
conclusion  that  such  offense  amounts  to  such 
crime  or  misdemeanor.  State  v.  Absence,  4 
Porter,  397. 

221.  Charging  offense  in  words  of  stat- 
ute. In  an  indictment  for  offenses  created 
by  statute,  it  is  in  general  suiBcient  to  de- 
scribe the  offense  in  the  words  of  the  statute. 
Lodano  v.  State,  25  Ala.  64.  If,  in  such 
case,  a  defendant  insists  upon  the  insuffi- 
ciency of  the  indictment,  it  is  for  him  to 
show  that  the  case  falls  within  some  excep- 
tion to  the  rule.  Where  a  statute  against 
the  sale  of  spirituous  liquors  without  license 
did  not  contain  the  term  "  willfully,"  or  any 
other  equivalent  expression,  it  was  held  that 
the  term  need  not  be  employed  in  the  in- 
dictment. State  V.  Abbott,  31  New  Hamp. 
434. 

222.  An  indictment  upon  a  penal  statute 
must  distinctly  allege  tiie  offense  and  the 
penalty  incurred.  Com.  v.  Waters,  7  Dana, 
29.  Such  an  indictment  must  also  be  cer- 
tain to  every  intent,  and  pursue  the  precise 


INDTCTMEXT. 


343 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


t 


language  of  the  statute  in   describing  the 
offense.     Ike  v.  State,  23  Miss.  525. 

223.  Where  a  generic  term  is  employed 
in  a  statute  creating  an  offense,  in  connection 
with  words  more  precise,  the  indictment 
must  charge  the  offense  in  the  language  of 
the  statute.  On  this  principle  an  indict- 
ment for  stealing  a  horse,  was  held  not  to 
be  supported  by  proof  of  stealing  a  gelding. 
State  V.  Raiford,  7  Porter,  101;  Bell  v. 
State,  5  Eng.  536. 

224.  An  indictment  under  a  statute  for- 
bidding the  running  of  horses  on  a  public 
highway,  so  as  to  interrupt  travelers  there- 
on, which  charged  the  defendant  with  run- 
ning a  horse,  "so  as  to  interrupt  travelers," 
was  held  insutBcient.  State  v.  Fleetwood, 
16  Mo.  372. 

225.  An  indictment  under  a  statute  pun- 
ishing the  cutting  down  of  a  timber  tree, 
which  charged  that  the  defendant  "  cut  a 
timber  tree,"  was  held  insufficient.  Maskill 
V.  State,  8  Blackf.  299. 

226.  An  indictment  under  a  statute  against 
"  uttering  and  publishing,"  as  applied  to 
forgery,  which  charged  that  the  defendant 
"disposed  of,  and  put  away,"  was  held 
bad.     State  v.  Petty,  Harper,  59. 

227.  In  New  Hampshire,  an  indictment 
alleged  that  the  prisoner  "  broke  and  entered 
the  store  of  one  M."  and  divers  goods  "in 
the  shop  aforesaid  then  and  there  being, 
then  and  there  in  the  shop  aforesaid,  felo- 
niously did  steal,  take  and  cany  away." 
Held  on  demurrer,  that  as  the  words  "  shop  " 
and  "store"  in  the  statute  (R.  S.  ch.  215, 
§  9),  were  not  synonymous,  and  the  larceny 
was  not  therefore  alleged  to  have  been  in  the 
place  broken  and  entered,  there  must  be 
judgment  for  the  defendant.  State  v.  Can- 
ney,  19  New  Ham  p.  135. 

228.  Although  the  offense  be  not  alleged 
in  the  indictment  in  the  very  words  of  the 
statute,  yet  if  the  substantial  facts  constitut- 
ing the  statutory  offen-e  are  well  stated,  it 
is  sufficient.  Frazer  v.  People,  54  Barb. 
306 ;  Thompson  v.  People,  3  Parker,  308. 

229.  Where  in  an  indictment  under  a 
statute,  the  words  "  likewise,"  and  "  simili- 
tude," were  substituted  for  the  word  imi- 
tation in  the  statute,  it  was  held   that  the 


indictment  was  good.  Peck  v.  State,  2 
Humph.  78.  And  see  State  v.  Vill,  2  Brev. 
262. 

230.  Where  the  words  of  a  statute  are 
descriptive  of  the  offense,  the  indictment 
must  follow,  substantially  at  least,  the  lan- 
guage of  the  statute,  and  expressly  charge 
the  defendant  with  the  commission  of  the 
offense  as  described.  When  the  words 
"  willfully  and  maliciously  "  in  a  statute 
are  descriptive  of  the  offense,  an  indictment 
which  charges  that  the  act  was  done  "  felo- 
niously, unlawfully  and  willfully  "  will  be 
insufficient.  State  v.  Gove,  34  New  Hamp. 
510. 

"  231.  It  is  not  sufficient  to  pursue  the  words 
of  the  statute  in  an  indictment,  when  the 
statute  merely  designates  an  offense,  but 
does  not,  in  express  terms,  prescribe  its 
constituents.  Anthony  v.  State,  29  Ala. 
27. 

232.  Where  a  statute  is  not  to  be  taken  in 
the  broad  meaning  of  the  words  used,  but 
limited  by  construction  to  a  special  subject 
or  matter,  the  indictment  should  not  charge 
the  crime  in  the  language  of  the  statute, 
but  should  limit  the  case,  and  bring  it  with- 
in the  construction  placed  upon  the  act. 
Bates  V.  State,  31  Ind.  72. 

233.  The  principal  exception  to  the  gen- 
eral rule  that  statutory  offenses  may  be 
charged  in  the  words  of  the  statute,  is  where 
the  words  of  the  statute  may  by  their  gen- 
erality embrace  cases  falling  within  its  literal 
terms,  which  are  not  within  its  meaning  and 
spirit.     State  v.  Bierce,  27  Conn.  319. 

234.  Where  a  statute  defines  the  offense 
generally,  and  designates  the  particular  acts 
constituting  it,  it  is  sufficient  in  charging 
the  crime,  to  follow  substantially  the  lan- 
guage of  the  statute.  But  where  the  statute 
defines  the  ciime  generally,  without  naming 
the  particular  acts  constituting  it,  the  acts 
done  should  be  set  out.  Malone  v.  State, 
14  Ind.  219. 

235.  When  the  prohibition  and  definition 
are  both  in  the  same  section,  the  offense 
should  be  described  in  the  language  of  the 
statute;  and  the  circumstances  mentioned 
in  the  statute  to  make  up  the  offense  cannot 
be  supplied  by  the  general  conclusion,  contra 


344 


INDICTMENT. 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


formam  statuti.  But  wliere  the  oftense  is 
prohibited  in  general  terms  in  one  section 
of  the  statute,  and  a  penalty  prescribed,  and 
in  another  section  entirely  distinct  there  is 
a  particular  description,  the  indictment  need 
only  contain  the  general  description.  State 
V.  Casey,  45  Maine,  435. 

236.  "When  exceptions  in  statute  must 
be  negatived.  Wliere  the  exception  is  in 
the  enacting  clause  of  the  statute,  and  enters 
into  the  descrijjtion  of  the  oftense,  the  ex- 
ception must  be  negatived.  State  v.  Barker. 
18  Vt.  195;  State  v.  Palmer,  lb.  570;  State 
V.  Keene,  34  Maine,  500.  Where,  however, 
there  is  a  proviso  containing  matter  of 
excuse  for  the  defendant,  it  need  not  be 
negatived  in  the  indictment.  State  v.  God- 
frey, 24  Maine,  232;  and  the  same  is  true, 
•where  the  statute  contains  provisos  and 
exceptions  in  distinct  clauses.  Britton  v. 
State,  5  Eng.  299;  Com.  v.  Hart,  11  Cush. 
130;  s.  c.  2  Green's  Crim.  Eeps.  247. 

237.  Where  provisos  and  excerptions  are 
contained  in  distinct  clauses  of  a  statute,  it 
is  not  necessary  to  aver  in  the  indictment 
that  the  defendant  does  not  come  within 
the  exceptions,  or  to  negative  the  provisos. 
Nor  is  it  necessary  to  allege  that  he  is  not 
within  such  provisos,  even  though  the  pur- 
view should  expressly  notice  them,  as  by 
saying  that  none  shall  do  the  act  prohibited 
except  in  the  cases  thereinafter  excepted. 
These  are  matters  of  defense.  Com.  v. 
Clanahan,  2  Mete.  Ky.  8 ;  State  v.  Cox,  32 
Mo.  566;  State  v.  Cassady,  52  New  Hamp. 
500 ;  State  v.  Gurney,  37  Maine,  149 ;  State 
V.  Robinson,  39  lb.  150. 

238.  In  determining  whether  or  not  ex- 
ceptions in  a  statute  are  to  be  negatived  in 
pleading,  it  is  immaterial  whether  the  ex- 
ception or  proviso  be  contained  in  the  enact- 
ing clause  or  section,  or  be  introduced  in  a 
different  manner.  Neither  does  it  depend 
upon  any  distinction  between  the  words 
'■'■  provided,^''  or  "  except,''^  as  they  may  be  used 
in  the  statute.  The  question  is,  whether 
the  exception  is  so  incor2:)orated  with  and 
becomes  a  part  of  the  enactment  as  to 
constitute  a  part  of  the  definition  or  de- 
scrijrtion  of  the  defense.  State  v.  Abbey,  29 
Vt.  60;  State  v.  Fuller,  33  New  Hamp.  259; 


State  V.  McGlynn,  34  lb.  422;  State  v. 
Wade,  lb.  495.  Where  a  statute  provided 
that  no  person  should  manufacture  or  sell, 
or  suffer  to  be  manufactured  or  sold  by  any 
pei'son,  except  for  the  purpose  of  exportation, 
or  keep  or  sufifer  to  be  kept  on  his  premises, 
or  under  his  charge  for  the  purpose  of  sale, 
wine,  or  strong  or  mixed  liquors,  it  was 
held  that  a  complaint  charging  a  violation 
of  the  statute  must  set  out  and  negative  the 
exceptions.  State  v.  O'Donnell,  10  R.  I. 
472 ;  s.  c.  2  Green's  Crim.  Reps.  376. 

239.  Where  a  statute  prohibited  the  sale 
of  wine  and  spirituous  liquors  otherwise 
than  for  medicinal,  mechanical  and  chem- 
ical purposes,  and  the  allegation  was,  that 
the  defendant  being  licensed,  did  unlaw- 
fully sell  contrary  to  the  form  of  the  stat- 
ute, without  alleging  that  the  sale  was  not 
for  medicinal,  mechanical,  or  chemical  pur- 
poses, it  was  held  that  the  indictment  was 
insufficient.  State  v.  Abbott,  31  New  Hamp. 
434. 

240.  After  words  of  general  prohibition 
in  a  statute,  whatever  comes  in  by  way  of 
proviso  or  exception  need  not  be  negatived, 
but  must  be  set  up  by  the  accused,  whether 
the  proviso  or  exception  be  contained  in  the 
enacting  or  subsequent  sections.  But  if 
there  be  no  general  words  of  prohibition  in 
the  description  of  the  offense,  the  prosecutor 
must  show  that  the  thing  prohibited  has 
been  done.     State  v.  Miller,  24  Conn.  522. 

241.  An  indictment  under  a  statute  impos- 
ing a  penalty  need  not  negative  the  existence 
of  facts  which  under  a  proviso  of  the  stat- 
ute would  constitute  a  defense.  Com.  v. 
Fitchburg  R.  R.  Co.  10  Allen,  189. 

242.  W  hen  a  statute  contains  an  exception 
of  such  a  character  that  the  offense  defined 
in  the  statute  cannot  be  accurately  de- 
scribed if  the  exce2)tion  be  omitted,  an 
indictment  founded  on  the  statute,  must 
show  that  the  accused  is  not  within  the  ex- 
ception. But  if  the  offense  may  be  defined 
without  any  reference  to  the  exception,  the 
indictment  need  not  refer  to  it,  but  it  is 
matter  of  defense.  Where  an  officer  was 
charged  with  embezzlement  of  public  money 
more  than  two  years  previously,  the  prosecu- 
tion for  which,  by  act  of  Congress,  must  be 


INDICTMENT. 


345 


Body  of  the  Indictment, 


Statement  of  the  Offense. 


brought  within  two  years  from  the  time  of 
committing  the  ofl'ense,  unless  the  defendant 
was  a  fugitive  from  justice,  the  indictment 
was  held  sufKcient  on  demurrer,  although  it 
did  not  charge  that  the  defendant  was 
within  the  exception.  U.  S.  v.  Cook,  17 
Wallace,  168;  s.  c.  2  Green's  Crim.  Reps. 
88. 

243.  Under  a  statute  -which  makes  the 
ofl'ense  consist  in  threatening  to  accuse 
another  of  crime,  "  either  verbally,  or  by  any 
written  or  printed  communication,"  an  in- 
dictment which  contains  no  averment  that 
the  threats  charged  were  made  in  either 
form  is  insufficient.  Robinson  v.  Com.  101 
Mass.  27. 

244.  Where  the  indictment  charges  a 
series  of  acts,  or  a  habit  of  life,  the  offense 
may  be  stated  in  general  terms,  unless  the 
enacting  clause  of  the  statute  specifies  the 
acts  of  which  the  ofl'ense  consists,  in  which 
case  the  indictment  must  follow  the  descrip- 
tion in  the  statute.  State  v.  Collins,  48 
Maine,  217. 

245.  Description  of  written  instrument. 
Where  the  tenor  of  an  instrument  is  re- 
quired to  be  set  out,  a  limited  number  of  ab- 
breviations may  be  employed,  when  their 
meaning  is  obvious.  State  v.  Jay,  5  Vroom 
(34  N.  J.)  368. 

246.  An  indictment  which  alleges  that  a 
note  is  payable  to  the  holder,  when  on  its 
face,  it  purports  to  be  payable  to  bearer,  is 
bad.     Downing  v.  State,  4  Mo.  573. 

247.  A  writing  purporting  to  be  an  in- 
denture, reciting  that  the  party  of  the  first 
part,  for  a  valuable  consideration,  "  has  sold, 
and  binds  himself  to  deliver  to  the  party  of 
the  second  part,  all  of  his  present  crop  of 
cotton  now  planted,  or  so  much  of  it  as  will 
satisfy  his  indebtedness  to  the  said  party  of 
the  second  part ;  "  that  "  this  conveyance  is 
intended  as  a  security  for  the  payment  "  of  a 
debt  due  from  the  party  of  the  first  to  the 
party  of  the  second  part,  "  which  payment 
if  duly  made,  will  render  this  conveyance 
void,  and  if  default  be  made  in  the  payment 
of  the  above  sum,  then  the  said  party  of 
the  second  part,  and  his  assigns,  are  hereby 

•  authorized  to  sell  Mh  certain  crop  of  cotton, 
or  as  much  of  it  as  will  pay  all  of  his  dues 


to  the  said  party  of  the  second  part ;  "  and 
signed  and  sealed  by  the  party  of  the  first 
part,  is  sufficiently  descril)ed  in  an  indict- 
ment as  a  "  deed  of  trust."  Oliver  v.  State, 
37  Ala.  134. 

248.  Description  of  property.  An  in- 
dictment under  a  statute  for  making  a  lot- 
tery for  the  division  of  property,  without 
specifying  the  property,  was  held  insuffi- 
cient.    Marks  v.  State,  3  Ind.  535. 

249.  Where  on  the  trial  of  an  indictment 
for  burglary  in  the  house  of  A.  with  intent 
to  steal  the  goods  of  B.,  it  was  proved  that 
B.  had  no  goods  there,  it  was  held  material 
to  state  truly  in  whom  the  ownership  of  the 
goods  was.  State  v.  Brown,  3  McLean, 
233. 

250.  In  Maine,  an  indictment  under  the 
statute  (of  1821,  ch.  4,  §  2),  for  burning  a 
meeting-house,  need  not  state  who  was  the 
owner  of  the  house,  or  its  value,  or  that  the 
burning  was  with  force  and  arms,  or  that  the 
house  was  being  used  as  a  place  of  public 
worship.     State  v.  Temple,    12  Maine,  214. 

251.  Guilty  knowledge  and  intent. 
Where  the  intent  is  an  essential  element  of 
the  oflFense,  it  must  be  distinctly  averred  by 
a  proper  affirmative  allegation,  and  not 
merely  by  way  of  inference  or  argument. 
Monroe  v.  Stote,  24  Miss.  54 ;  State  v.  Free- 
man, 6  Blackf.  248;  People  v.  Lehman,  2 
Barb.  216 ;  McCann  v.  State,  13  Smed.  & 
Marsh.  471;  State  v.  Gove,  34  New  Hamp. 
510.  Where  in  an  indictment  for  obtaining 
a  signature  by  a  false  pretense,  the  only 
averment  of  an  intent  to  defraud  was  in  the 
concluding  clause,  as  follows:  "So,  the 
jurors  aforesaid,  upon  their  oaths  aforesaid, 
do  say  and  present,  that  said  D.  in  the  man- 
ner aforesaid,  designedly  and  by  a  false  pre- 
tense, and  with  intent  to  defraud,  obtained 
the  signature  of  the  said  S.,"  the  indictment 
was  held  bad.  Com.  v.  Dean,  110  Mass.  64 ; 
s.  c,  2  Green's  Crim.  Reps.  259. 

252.  An  indictment  against  the  owner  of 
a  vessel,  for  casting  away  and  destroying  a 
vessel  at  sea,  must  charge  intent  to  preju- 
dice the  underwriters.  U.  S.  v.  Johns,  I 
Wash.  C.  C.  363. 

253.  An  in<lictment  against  one  I'or  hav- 
ing in  possession  parts  of  bank   bills,  with 


340 


INDICTMENT. 


Body  of  the  Indictment. 


Statement  of  the  Offense. 


the  intent  of  putting  them  together  and 
making  additional  bills,  must  allege  the 
completion  of  the  intent.  Com.  v.  Hay  ward, 
10  Mass.  Si. 

254.  An  indictment  for  carrying  and  hav- 
ing in  possession  counterfeit  bank  bills,  with 
intent  to  pass  them,  need  not  allege  that  the 
intent  was  to  pass  them  in  the  State,  State 
V.  Cone,  2  Mass.  132. 

255.  An  indictment  at  common  law,  for 
receiving  property  which  the  sheriif  had 
distrained  from  a  person  in  whose  charge 
the  sheriff  had  placed  it,  must  allege  that 
the  defendant  knew  by  what  right  the  bailee 
for  the  sheriff  held  it.  Israel's  Case,  4  Leigh, 
67.5. 

256.  Where  the  statement  of  the  case  nec- 
essarily includes  a  knowledge  of  its  illegal- 
ity, no  averment  of  knowledge  or  bad  in- 
tent is  necessary.  Com.  v.  Stout,  7  Monr. 
247. 

257.  Technical  words.  In  Illinois,  where 
the  indictment  omitted  the  words,  "  in  the 
name  and  by  the  authority  of  the  people  of 
the  State  of  Illinois,"  it  was  held  fatally  de- 
fective.    Whitesidos  v.  People,  Breese,  4. 

258.  But  where  an  indictment  commenced, 
"  South  Carolina,"  leaving  out  the  words 
"  State  of,"  and  concluded  with  the  words, 
"  against  the  peace  and  dignity  of  the  said 
State,"  it  was  held  good.  State  v.  Anthony, 
1  McCord,  285. 

259.  Where  a  statute  uses  the  words  will- 
fully and  maliciously,  an  indictment  which 
charges  that  the  offense  was  committed 
feloniously,  unlawfully  and  maliciously,  will 
not  be  sufficient.  State  v.  Delue,  1  Chand. 
1G6. 

260.  An  indictment  for  felony  is  insuffi- 
cient unless  it  alleges  that  the  act  charged 
was  done  "feloniously."  State  v.  Feaster, 
2.5  j\Io.  324. 

261.  An  indictment  for  an  act  which  was 
a  misdemeanor  at  common  law,  and  which 
by  statute  has  been  made  a  felony,  need  not 
allege  that  the  act  was  felonious.  Beasley 
V.  State,  18  Ala.  535 ;  contra,  State  v.  Mur- 
dock,  9  Mo.  730. 

262.  In  Alabama,  the  statute  (Clay's  Di- 
gest, 442,  §  26)  rendered  unnecessary  the 
word   "  feloniouslv,"  in  all  indictments  for 


crimes  which  were  misdemeanors  at  common 
law,  but  were  made  felonies  by  the  penal 
code  of  that  State.  Butler  v.  State,22  Ala.43. 

263.  The  word  "willfully,"  as  usedto  denote 
the  intent  with  which  an  act  is  done,  is  sus- 
ceptible of  different  shades  of  meaning,  ac" 
cording  to  the  context.  It  sometimes  sig- 
nifies little  more  than  intentionally  or  de- 
signedly, but  is  most  frequently  understood 
as  conveying  the  idea  of  legal  malice.  State 
V.  Preston,  34  Wis.  675. 

264.  Where  the  indictment  omits  the 
words,  "at  divers  times,"  only  one  offense 
can  be  proved.     State  v.  Jones,  39  Vt.  370. 

265.  A  clerical  mistake  in  an  indictment 
for  murder,  in  omitting  the  word  "  with  "  be- 
fore the  description  of  the  weapon,  does  not 
vitiate,  if  the  offense  be  sufficiently  charged 
elsewhere  in  the  indictment.  Shay  v. 
People,  4  Parker,  353. 

266.  The  omission  in  an  indictment  of  the 
word  "did,"  in  charging  the  commission  of 
an  offense,  is  a  fatal  defect.  State  v.  Hutch- 
inson, 26  Texas,  111;  State  v.  Daugherty, 
30  lb.  300. 

267.  The  words  "«i  et  armis"  are  re- 
quired in  indictments  for  offenses  which 
occasion  a  breach  of  the  peace.  State  v. 
Kean,  10  New  Hamp.  347. 

268.  Where  an  indictment  was  signed  by 
the  foreman  of  the  grand  jury,  but  the 
words,  "a  true  bill,"  did  not  appear  over 
his  signature,  the  indictment  was  held  bad. 
Webster's  Case,  5  Maine,  432. 

269.  An  indictment  will  not  be  bad  on 
account  of  clerical  or  grammatical  errors,  un- 
less the  meaning  is  im^Daired.  State  v.  Wim- 
berly,  3  McCord,  190. 

270.  Conclusion.  In  a  common-law  in- 
dictment, the  words  contra  formam  statuti, 
may  be  rejected  as  surplusage.  Gregoiy  v. 
Com.  5  Dana,  417;  State  v.  Wimberly,  3 
McCord,  190;  Com.  v.  Hoxey,  16  Mass.  385; 
Knowles  v.  State,  3  Day,  103;  Southworth 
V.  State,  5  Conn.  325 ;  Cruiser  v.  State,  3 
Harr.  206*  State  v.  Phelps,  11  Vt.  116; 
State  V.  Straw,  42  New  Hamp.  393. 

271.  An  indictment  which  concludes  con- 
trary to  the  law,  instead  of  contrary  to  the 
statute,  is  good.  Hudson  v.  State,  1  Blackf. 
317. 


INDICTMENT. 


347 


Body  of  the  Indictment.        Statement  of  the  Offense. 


Proof  Required. 


272.  But  an  indictment  concluding 
"  against  the  law  in  such  case  provided,"  is 
bad  for  uncertainty,  in  not  showing  whether 
the  offense  was  committed  against  the  stat- 
ute or  common  law.  Com.  v.  Inhabs.  of 
Stockbridge,  11  Mass.  279. 

273.  When  the  forged  instrument  is  set 
out  in  the  indictment,  and  it  appears  that 
the  offense  is  not  punishable  under  the  stat- 
ute, the  conclusion  "against  the  statute," 
&c.,  may  be  rejected  as  surplusage,  and  the 
defendant  convicted  of  the  common-law  of- 
fense.    State  V.  Lamb,  65  N.  C.  419. 

274.  An  indictment  under  two  statutes, 
concluding  in  the  singular,  has  been  held 
bad.  Francisco  v.  State,  1  Carter,  179; 
State  V.  Jim,  3  Murphy,  3 ;  contra.,  U.  S.  v. 
Trout,  4  Bis.  105 ;  State  v.  Dayton,  3  Zabr. 
49;  U.  8.  V.  Gibert,  3  Sumner,  19. 

275.  In  Rhode  Island,  an  indictment 
which  concluded  against  the  form  of  the 
statute,  instead  of  statutes,  was  held  good, 
although  the  offense  was  created  by  several 
statutes.  State  v.  Wilber,  1  R.  I.  199.  But 
in  North  Carolina,  where  there  was  but  one 
statute,  it  was  held  that  an  indictment 
which  concluded  against  the  form  of  the 
statutes  was  bad.  State  v.  Sandy,  3  Ired. 
570;  contra,  Carter  v.  State,  2  Carter,  617. 

276.  Where  one  statute  defines  the  offense, 
and  another  fixes  the  punishment,  the  in- 
dictment must  conclude,  "  contrary  to  the 
form  of  the  statute;"  but  it  is  otherwise 
where  one  statute  continues  a  former  one  in 
part,  or  explains,  or  regulates  it.  King  v. 
State,  2  Carter,  523. 

277.  Where  the  offense  is  created  by  stat- 
ute, or  the  statute  provides  that  a  common- 
law  offense,  committed  under  certain  circum- 
stances not  necessarily  embraced  in  the 
original  offense,  shall  be  punished  differ- 
ently, or  where  the  statute  changes  the  com- 
mon-law offense  from  a  lower  to  a  higher 
grade,  the  indictment  must  conclude  ''  con- 
trary to  the  form  of  the  statute."  But  it  is 
otherwise  where  the  statute  is  only  declara- 
tory of  an  offense  at  common  law,  without 
changing  the  punishment.  People  v. Enoch, 
13  Wend.  159. 

278.  Where  there  are  two  statutes  for  the 
same  offense,  one  creating  the  offense  and 


imposing  a  penalty,  and  the  other  making 
the  offense  indictable,  the  indictment  must 
conclude  "against  the  form  of  the  statute." 
State  V.  Pool,  2  Dev.  202.  But  where  there 
were  two  statutes, the  first  creating  an  offense 
with  a  penalty,  and  the  second  imposing  an 
additional  penalty,  it  was  held  that  the  in- 
dictment might  conclude  "  against  the  form 
of  the  statute."  Butman's  Case,  8  Maine, 
113.  But  where  an  offense  is  created  by  one 
statute,  and  a  penalty  imposed  for  its  viola- 
tion by  another  statute,  the  indictment 
must  conclude  in  the  plural.  State  v.  Moses,. 
7  Blackf.  244. 

279.  In  Texas,  indictments  are  required 
to  conclude  against  the  peace  and  dignity 
of  the  State.  State  v.  Durst,  7  Texas,  74. 
In  Louisiana  an  indictment  is  good,  although 
it  does  not  aver  that  it  is  carried  on  "  in  the 
name  and  by  the  authority  of  the  State," 
and  does  not  conclude  "  against  the  peace 
and  dignity  of  the  same."  State  v.  Russell, 
2  La.  An.  604. 

7.  Removal  of  indictment. 

280.  How  made.  In  New  York,  a  person 
having  been  arraigned  for  trial  in  the  Court 
of  Sessions  on  an  indictment  for  burglary  in 
the  third  degree,  and  pleaded  not  guilty, 
the  court  directed  the  indictment  to  be  sent 
to  the  court  of  Oyer  and  Terminer  for  trial. 
The  following  entry  was  made  on  the  indict- 
ment :  "  Trial  of  indictment  to  go  over  to 
next  court  of  Oyer  and  Terminer."  The 
clerk  then  entered  in  his  minutes:  "  The  de- 
fendant was  arraigned  before  the  court,  and 
by  h's  attorney,  E.  P.  Hart,  plead  not 
guilty.  Remanded."  At  the  opening  of 
the  trial  in  the  court  of  Oyer  and  Terminer, 
the  clerk  made  the  further  entry  in  his  min- 
utes: "Ordered,  that  the  trial  of  this  in- 
dictment go  over  to  the  next  court  of  Oyer 
and  Terminer."  Held,  that  the  indictment 
was  duly  removed  from  the  Court  of  Sessions 
to  the  court  of  Oyer  and  Terminer.  Myers 
V.  People,  4  N.  Y.  Supm.  N.  S.  292. 

8.  Proof  required. 

281.  Holding  of  court.  When  it  becomes 
necessary  to  charge  that  a  certain  term  of 
the  court  was  held,  it  must  appear  that  at 


348 


INDICTMENT. 


Proof  Required. 


least  a   quorum  of  the  court  was  present. 
State  V.  Freeman,  lo  Vt.  722. 

282.  Authenticity  of  indictment.  An 
Indictment  found  on  file,  and  acknowledged 
to  be  an  authentic  paper,  proves  itself,  when 
the  question  of  authenticity  is  raised  on  an 
issue  to  a  plea  to  the  indictment.  State  v. 
Clarkson,  3  Ala.  378. 

283.  Evidence  as  to  the  finding  of  the 
indictment.  The  evidence  upon  which  the 
grand  jury  acted  in  finding  the  indictment 
cannot  be  inquired  into ;  and  the  indictment 
will  be  good  although  one  of  the  grand 
jurors  misbehaved.  Turk  v.  State,  7  Ohio, 
240. 

284.  Evidence  is  not  admissible  for  the 
purpose  of  vitiating  an  indictment,  either 
from  the  grand  jurors,  or  from  the  witness- 
es before  them,  or  from  any  other  person 
required  by  law  to  be  present  before  them. 
State  V.  Fasset,  16  Conn.  457. 

285.  Time.  Although  the  time  when  an 
offense  was  committed  be  alleged,  it  need 
not  be  proved  that  the  act  was  done  on  the 
precise  day  alleged.  State  v.  Baker,  34 
Maine.  52 ;  Johnson  v.  U.  S.  3  McLean,  89 ; 
Com.  V.  Braynard,  Thach.  Crim.  Cas.  146; 
Oliver  V.  State,  5  How.  Miss.  14;  Com.  v. 
Alfred,  4  Dana,  495 ;  People  v.  Van  Sant- 
voord,  9  Cow.  655. 

286.  When  the  time  of  the  commission  of 
the  offense  is  charged  in  an  indictment  under 
a  videlicet,  the  prosecution  may  prove  that 
the  offense  was  committed  at  any  time  be- 
fore the  finding  of  the  indictment  within 
the  period  described.  McDade  v.  State,  20 
Ala.  81. 

287.  Place.  The  prosecution  must  prove 
that  the  offense  was  committed  in  the  county 
where  the  venue  is  laid.  Hite  v.  State,  9 
Yerg.  382 ;  Moody  v.  State,  7  Blackf.  424. 

288.  Averments  which  might  have  been 
omitted.  It  is  incumbent  on  the  prosecu- 
tion to  prove  allegations  which  though  un- 
necessary are  nevertheless  connected  with 
and  descriptive  of  that  which  is  material,  or 
in  other  words,  averments  which  might  with 
propriety  have  been  omitted,  but  being  in- 
serted in  the  indictment,  are  descriptive  of 
the  identity  of  that  which  is  legally  essential 
to  the  charge.     John  v.  State,  24  Miss.  569. 


289.  Under  an  indictment  for  altering  a 
deed  of  assignment,  the  avennent  that  the 
assignment  was  duly  recorded  is  material, 
and  must  be  proved.  State  v.  Clark,  3  Fos- 
ter, 429. 

290.  Where  an  indictment  for  stopping 
the  mail  set  out  the  contract  of  the  carrier 
of  the  mail  with  the  post  otEce  department, 
it  was  held  that  it  must  be  proved.  State 
V.  Brown,  3  McLean,  23-3. 

291.  Sums  of  money  alleged  in  an  indict- 
ment need  not  be  proved  as  charged,  unless 
they  form  part  of  the  description  of  a  written 
instrument,  or  are  evidence  of  the  offense. 
Parsons  v.  State,  2  Carter,  499. 

292.  Must  support  charge.  Under  an 
indictment  for  murder,  it  will  be  sufficient 
to  prove  that  the  deceased  was  killed  by  a 
different  weapon  than  that  described,  or  by 
a  different  kind  of  poisoning  than  that  al- 
leged. But  a  charge  of  death  by  poisoning 
will  not  be  supported  by  proof  of  death  by 
shooting,  starving  or  strangling.  U.  S.  v. 
Howard,  3  Sumner,  12.  And  an  indictment 
for  stabbing  will  not  be  sustained  by  proof 
of  cutting.     State  v.  Patza,   3    La.  An.  512. 

293.  On  the  tiial  of  an  indictment  for  pro- 
curing persons  to  shoot,  cut,  stab  and  wound 
another,  it  is  not  competent  to  prove  that  a 
rape  was  committed  by  such  persons  after 
they  had  broken  into  the  dwelling-house  of 
such  other,  the  rape  being  a  distinct  sub- 
stantative  offense  from  that  charged.  Watts 
V.  State,  5  West  Va.  532. 

294.  An  indictment  for  concealing  treas- 
ury notes,  which  the  defendant  knew  had 
been  stolen  from  the  United  States  mails, 
described  one  of  the  notes  as  "  a  promissory 
note  called  a  treasury  note  for  the  payment 
of  fifty  dollars  with  interest  at  the  rate  of 
one  per  centum."  The  evidence  was,  that 
the  rate  of  interest  was  one  mill  per  cent. 
Held  that  the  variance  was  fatal.  U.  S.  v. 
Hardman,  13  Peters,  176. 

295.  Where  an  indictment  charges  a  cheat- 
ing in  an  executed  contract,  and  the  proof 
shows  an  attempt  to  cheat  in  executing  a 
contract  which  was  abandoned,  the  variance 
is  fatal.     State  v.  Corbett,  1  Jones,  264. 

296.  A  charge  of  stealing  a  pine  log  will 
not  be  supported  by  proof  of  the  stealing  of 


INDICTMENT. 


3411 


Proof  Required. 


Objection  to  Indictment. 


an  oak  or  birch  log.  State  v.  Noble,  15 
Maine,  476 ;  State  v.  Copp,  15  New  Hauip. 
212. 

297.  An  indictment  charging  that  an  affi- 
davit was  sworn  to,  purporting  to  have  been 
made  by  J.  N.  P.,  is  not  sujjported  by  proof 
that  the  affidavit  was  signed  by  J.  P.  Per- 
kins V.  State,  6  Ohio,  274. 

298.  Where  an  indictment  against  a  wo- 
man describes  her  as  B.  C,  the  wife  of  E. 
G.,  the  latter  words  will  be  deemed  a  mere 
addition,  which  it  will  not  be  necessary  to 
prove.     Com.  v.  Lewis,  1  Mete.  151. 

299.  The  defendant  and  others  were 
charged  in  an  indictment  with  an  assault 
and  battery  on  Thomas  Adams,  a  deputy 
sheriff.  At  the  trial,  it  was  proved  that  the 
person  upon  whom  the  assault  and  battery 
were  committed  was  commissioned  as  a 
deputy  sheriff  by  the  name  of  Thomas 
Adams,  Jr.  Held  that  the  variance  was  not 
material.     Com.  v.  Beckley,  3  Mete.  330. 

300.  Although  an  indictment  is  good  on 
its  face,  yet  no  conviction  under  it  can  be 
had  when  facts  are  proved  which,  if  alleged 
in  the  indictment,  would  make  it  defective, 
and  enable  the  defendants  after  cpnviction 
to  arrest  or  reverse  the  judgment.  Thus,  if 
A.  and  B.  are  jointly  indicted  and  tried  for 
gaming,  and  it  is  proved  that  A.  in  com- 
pany with  others  played  at  one  time  during 
the  absence  of  B.,  and  that  B.  in  company 
with  others  played  at  another  time  when  A. 
was  not  present,  there  can  be  no  conviction. 
Elliott  V.  State,  26  Ala.  78. 

9.  Objection  to  indictment. 

301.  How  made.  Where  a  grand  jury 
has  presented  an  indictment  contrary  to 
law,  the  court  can  properly  arrive  at  the 
fact  only  by  a  trial,  and  cannot  on  an  ex  parte 
showing  discharge  a  prisoner  regularly  in- 
dicted.    State  V.  Cheek,  25  Ark.  206. 

302.  The  validity  of  an  indictment  cannot 
be  tested  upon  demurrer  to  the  scire  facias 
issued  on  a  forfeited  recognizance,  but  the 
defendant  must  appear  and  answer  to  the 
indictment.     State  v.  Weaver,  18  Ala.  293. 

303.  Where  the  sufficiency  of  an  indict- 
ment is  not  involved  in  a  decision  or  opinion 
of  the  court  at  the  trial,  the  only  way  of 


reaching  a  defect  in  the  indictment  is  by  a 
motion  in  arrest  of  judgment,  or  by  a  writ 
of  error.    People  v.  Stockham,  1  Parker,  424. 

304.  When  an  indictment  is  indorsed  "a 
true  bill  "  by  mistake,  the  fact  may  be  shown 
by  affidavit  or  otherwise,  either  upon  a  mo- 
tion to  quash,  or  by  a  plea  in  abatement. 
State  V.  Horton,  63  N.  C.  595. 

305.  The  objection  to  an  indictment  that 
other  persons  than  the  defendant  are  not 
sufficiently  described,  must  be  taken  on  de- 
murrer.    State  V.  Crank,  2  Bail.  66. 

306.  At  common  law,  an  objection  on  ac- 
count of  the  misjoinder  of  counts  can  only 
be  made  by  motion  to  quash,  or  to  compel 
the  prosecutor  to  elect  on  which  count  he 
will  proceed.  Brantly  v.  State,  13  Smed.  & 
Marsh.  468. 

307.  An  objection  to  an  indictment  on  the 
ground  of  duplicity  must  be  made  by  de- 
murrer or  motion  to  quash.  State  v.  Brown, 
8  Humph.  89. 

308.  Where  several  distinct  felonies  are 
charged  in  the  same  indictment,  the  court, 
even  after  the  case  has  been  submitted  to  the 
jury,  upon  the  application  of  the  prisoner, 
may  compel  the  prosecutor  to  elect  as  to 
which  charge  he  will  proceed.  Wash  v. 
State,  14  Smed.  &  Marsh.  120. 

309.  Where  the  objection  that  distinct 
felonies  ai'e  joined  in  the  same  indictment 
is  not  made  until  after  plea,  it  is  discretion- 
ary with  the  court  whether  or  not  to  compel 
the  State  to  elect  on  which  count  to  try  the 
defendant.  Weinzorflin  v.  State,  7  Blackf. 
186. 

310.  An  indictment  defective  or  bad  on 
demurrer  must  be  held  insufficient  on  mo- 
tion in  arrest  of  judgment.  State  v.  Barrett, 
42  New  Hamp.  466. 

311.  It  is  not  a  defense  to  an  indictment 
that  there  was  no  preliminary  examination 
of  the  accused  before  a  magistrate.  French 
V.  People,  3  Parker,  114. 

312.  Waiver  of,  not  binding.  The  ac- 
cused cannot  waive  his  legal  rights  by  any 
consent  in  reference  to  material  averments  in 
the  indictment.  People  v.  Campbell,  4  Par- 
ker, 386. 

313.  A  waiver  by  the  prisoner  of  all  ob- 
jections to  irregularity  in  the  finding  of  the 


350 


INDICTMENT. 


Objection  to  Indictment. 


Amendment  of  Indictment. 


indictment,  and  to  the  jurisdiction  of  the 
court,  is  not  binding  upon  him.  State  v. 
Bonncy,  34  Maine,  223. 

314.  When  too  late.  It  is  too  late  after 
verdict  to  object  that  the  record  fails  to 
show  that  the  grand  jury  was  regularly  se- 
lected and  summoned.  Shaw  v.  State,  18 
Ala.  547 ;  Com.  v.  Smith,  9  Mass.  107 ;  or 
that  the  indictment  was  presented  by  twen- 
ty-four instead  of  twenty-three  grand  jurors, 
as  required  by  the  statute.  Conkey  v.  Peo- 
ple, 1  N.  Y.  Ct.  of  Appeals  Decis.  418;  aflB'g 
s.  c.  5  Parker,  31. 

315.  In  Alabama,  although  the  statute 
(Code,  §  8591)  provides  that  an  objection  to 
an  indictment  on  the  ground  that  the  grand 
jurors  were  not  drawn  in  the  presence  of  the 
proper  officers,  must  be  made  at  the  term  at 
which  the  indictment  is  found ;  yet  if  the 
prisoner  was  unable  to  raise  the  objection  at 
that  time  in  consequence  of  his  confinement 
in  jail  in  another  county,  the  court  may  en- 
tertain the  objection  at  a  subsequent  term. 
Russell  v.  State,  33  Ala.  366. 

316.  In  New  York,  a  defect  in  an  indict- 
ment for  murder,  in  charging  the  crime  upon 
the  oath  of  the  grand  jurors,  instead  of  oaths, 
after  verdict,  is  cured  by  the  statute.  Wag- 
ner V.  People,  54  Barb.  367 ;  affi'd  4  N.  Y. 
Ct.  of  Appeals  Decis.  509 ;  s.  c.  2  Keyes,  684. 

317.  Where  an  indictment  is  indorsed  by 
the  foreman  of  the  grand  jury,  "a  true  bill," 
and  the  record  shows  it  was  returned  into 
court  so  indorsed;  and  that  the  prisoner 
raised  no  objection,  but  i^leaded  not  guilty, 
he  cannot  move  in  arrest  of  judgment,  on 
account  of  any  informality  in  the  finding, 
returning  or  filiag.  Russell  v.  State,  33  Ala. 
S66. 

318.  An  indictment  on  a  sheet  of  paper 
was  wrapped  in  a  blank  half  sheet  of  paper 
of  like  size,  and  on  the  latter  the  prosecut- 
ing attorney  had  indorsed  "  Commonwealth 
\.  Joseph  Burgett,  indictment,"  and  under- 
neath the  foreman  of  the  grand  jury  had 
written  "  a  true  bill.  Robert  Hamilton,  fore- 
man." Held  too  late  to  object  to  the  irregu- 
larity after  verdict.  Burgess  v.  Com.  3  Va. 
Cas.  483. 

319.  Although  it  be  required  that  a  pros- 
ecutor shall  be  named  at  the  foot  of  the 


indictment,  yet  if  the  defendant  postpones 
his  objection  until  after  the  jury  have  ren- 
dered verdict  against  him,  he  will  be  held 
to  have  waived  that  objection.  Hayden  v. 
Com.  10  B.  Mon.  125. 

320.  After  the  plea  of  guilty  is  filed,  judg- 
ment will  not  be  arrested  because  a  blank 
left  in  the  indictment  for  tlie  name  of  the 
county  for  which  the  grand  jurors  were 
sworn,  has  not  been  filled.  Forrester  v. 
State,  34  Ga.  107. 

321.  A  mistake  in  the  christian  name  of 
the  prisoner  is  cured  by  verdict.  Smith  v. 
State,  8  Ohio,  294.  A  misnomer  is  only 
matter  of  abatement,  and  after  plea  of  not 
guilty,  it  cannot  be  taken  advantrge  of  ei- 
ther at  the  trial,  or  in  arrest  of  judgment, 
or  on  motion  for  a  new  trial.  Com.  v.  Ded- 
ham,  16  Mass.  141 ;  State  v.  Thompson, 
Cheves,  31 ;  People  v.  Smith,  1  Parker,  329. 

322.  Although  an  indictment  charge  two 
distinct  offenses,  yet  objection  on  that 
ground  will  be  waived  by  a  failure  to 
demur.     People  v.  Burgess,  35  Cal.  115. 

323.  Duplicity  in  an  indictment,  whether 
in  the  same  or  diflerent  counts,  will  be  cured 
by  a  verdict  of  guilty  as  to  one  of  the  of- 
fenses, and  not  guilty  as  to  the  other. 
When  the  indictment  charges  two  offenses 
in  one  count,  the  prosecuting  ofiicer  may 
enter  a  nol.  2)ros.  as  to  one  charge  before  trial, 
and  a  conviction  upon  the  remaining  charge 
will  be  good;  or  he  may  be  held  to  an  elec- 
tion upon  which  charge  he  will  proceed. 
Stf.te  V.  Merrill,  44  New  Hamp.  624. 

324.  A  motion  to  quash  an  indictment 
after  a  nolle  jjroseqtd  has  been  entered,  will 
be  overruled.     U.  S.  v.  Hill,  1  Brock.  156. 

10.  Amendment  of  indictment. 

325.  Not  in  general  permitted.  An  in- 
dictment is  not  the  subject  of  amendment 
like  a  declaration ;  but  a  new  indictment  for 
the  same  off'ense  is  substituted.  Com.  v. 
Adcock,  8  Gratt.  661. 

326.  In  Massachusetts,  it  has  been  held 
that  in  a  capital  case,  an  indictment  cannot 
be  amended,  even  with  the  consent  of  the 
prisoner.     Com.  v.  Mahar,  16  Pick.  120. 

327.  In  Alabama,  an  indictment  cannot 
be  amended  without  the  consent  of  the  ac- 


INDICTMENT. 


351 


Amendment  of  Indictment. 


Quashing  Indictment. 


cused,  and  against  his  objection,  even  in  an 
immaterial  particular.  Gregory  v.  State,  46 
Ala.  151 ;  Johnson  v.  State,  lb.  213. 

328.  Where  an  indictment  is  defective  for 
the  reason  that  the  name  of  the  prosecutor 
is  not  indorsed  on  it,  the  defect  cannot  be 
remedied  by  amendment  after  trial.  Moore 
V.  State,  13  Smed.  &  Marsh.  360. 

329.  Where  the  proper  attorney  signed  an 
indictment  containing  a  single  count,  and 
afterward  two  other  counts  were  added  by 
another  attorney  charging  different  offenses, 
it  was  held  that  a  conviction  could  not  be 
sustained  on  either  count.  Hite  v.  State,  9 
Yerg.  198. 

330.  A  presentment  being  made  by  the 
grand  jury,  an  indictment  for  the  same  of- 
fense was  sent  by  the  attorney  for  the  pros- 
ecution to  the  grand  jury,  who  found  it  "a 
true  bill,"  and  afterward,  at  a  subsequent 
term,  the  prosecuting  attorney  entered  a 
nolle  prosequi  on  the  indictment,  and  it  then 
appeared  that  the  indictment  was  au  amend- 
ment of  the  presentment.  Held  that  both 
ceased  to  exist.    U.  S.  v.  Hill,  1  Brock.  156. 

331.  Striking  out  or  quashing  one  count 
in  an  indictment  will  vitiate  the  whole. 
Eose  v.  State,  Minor,  28. 

332  When  allowed.  In  New  Hampshire, 
where  an  indictment  for  burglary  charges 
the  commission  of  the  offense  subsequent  to 
the  finding  of  the  indictment,  the  indict- 
ment may,  under  the  statute  (Gen.  Stats,  ch. 
243,  §  13),  be  amended  on  motion,  and  if 
net  amended,  the  defect  will  be  cured  by  the 
verdict.  State  v.  Blaisdell,  49  New  Hamp. 
81. 

333.  Where  on  the  trial  of  an  indictment 
for  arson  charging  the  burning  of  thirty-five 
houses,  the  prosecution  withdrew  the  charge 
except  as  to  the  house  of  B.  The  judge 
told  the  jury  they  must  find  the  prisoner 
guilty  of  setting  tire  to  that  house,  or  acquit 
him.  Held  that  if  the  allegation  as  to  the 
other  houses  was  erroneous,  the  error  was 
cured  by  the  withdrawal  of  such  allegation. 
Woodford  v.  People,  5  N.  Y.  Supm.  N.  S. 
039. 

334.  Where  there  were  two  indictments 
against  a  party,  one  for  assault  and  the  other 
for  an  assault  with  intent  to  murder,  and  by 


mistake  he  pleaded  guilty  to  the  last  instead 
of  the  first,  it  was  held  that  the  error  might 
be  corrected,  although  an  entry  had  been 
made  on  the  indictment  and  minutes  of  the 
court.     Davis  v.  State,  30  Ga.  674. 

335.  Rejection  as  surplusage.  All  un- 
necessary words  in  an  indictment  may,  on 
the  trial,  be  rejected  as  surplusage,  if  the 
indictment  will  be  good  upon  striking  them 
out.     State  V.  Webster,  39  New  Hamp.  96. 

336.  The  allegation  in  an  indictment  for 
disinterring  a  dead  body,  that  the  burying 
ground  belonged  to  the  first  congregational 
parish  in  G.,  may  be  rejected  as  surj^lusage. 
Com.  V.  Cooley,  10  Pick.  37. 

337.  Mutilation.  The  accidental  mutila- 
tion of  an  indictment  by  cutting  it  into 
several  j^ieces,  when  the  jjarts  can  be  so 
reunited  that  the  words  which  have  been 
severed  may  be  joined  so  that  there  is  no 
material  omission  of  any  averment,  does  not 
unfit  it  to  be  the  basis  of  further  proceedings. 
Com.  V.  Roland,  97  Mass.  598. 

11.  Quashing  indictment. 

338.  By  prosecution.  Before  the  prisoner 
is  arraigned,  the  jjrosecution  may,  in  its 
discretion,  enter  a  7ioUe  2^'>'osequi,  or  quash 
the  indictment.  Clark  v.  State,  23  Maine, 
361. 

339.  Motion.  On  a  motion  to  quash, 
matters  not  apparent  on  the  record  must  be 
alleged  in  a  traversable  2>lea,  unless  other- 
wise provided  by  statute.  State  v.  Intox- 
icating Liquors,  44  Vt.  208. 

340.  Is  in  discretion  of  court.  The  court 
is  not  bound  to  quash  a  defective  indictment 
on  motion,  the  party  having  his  remedy  by 
demurrer  or  motion  in  arrest  of  judgment. 
State  V.  Taggart,  38  Maine,  298;  State  v. 
Burke,  lb.  575. 

341.  It  is  in  the  discretion  of  the  court 
whether  or  not  to  set  aside  a  defective  in- 
dictment upon  motion,  or  to  put  the  prose- 
cution to  an  election  when  more  than  one 
oft'ense  is  charged,  upon  which  it  will 
proceed.  People  v.  Davis,  56  N.  Y.  95 ; 
Click  V.  State,  3  Texas,  383 ;  State  v.  Day- 
ton, 3  Zabr.  49;  Bell  v.  Com.  8  Gratt.  600; 
State  V.  Stuart,   33  Maine,    111;    State  v. 


INDICTMENT. 


Quashing  Indictment. 


Smith,  1  Murphy,  213;  Com.  v.  Eastman,  1 
Cush.  189;  State  v.  Barnes,  29  Maine,  561. 

342.  Courts  usually  refuse  to  quash  on 
the  application  of  the  defendant  where  the 
indictment  is  for  a  serious  offense,  unless 
upon  the  clearest  and  plainest  ground ;  but 
will  leave  the  party  to  a  demurrer,  or  a 
motion  in  arrest  of  judgment,  or  a  writ  of 
error.  People  v.  Walters,  5  Parker,  661; 
s.  c.  6  lb.  15  ;  Bell  v.  Com.  8  Gratt.  600 ; 
State  V.  Smith  and  Com.  v.  Eastman, 
supra. 

343.  Where  an  indictment  is  quashed  on 
the  defendant's  motion,  he  has  no  legal 
ground  of  exception  to  the  refusal  of  the 
court  to  allow  him  afterwards  to  withdraw 
the  motion  ;  nor  to  the  refusal  of  the  court 
to  allow  him  to  withdraw  his  plea  of  not 
guilty  to  a  second  indictment  for  the  same 
offense,  and  plead  a  former  acquittal.  Com. 
V.  Gould,  12  Gray,  171. 

344.  Wlien  an  Indictment  is  quashed, 
adjudged  bad  on  demurrer,  or  when  judg- 
ment is  arrested  for  a  defect  therein,  the 
accused  has  not  been  in  jeopardy.     lb. 

345.  The  court  may  quash  a  defective 
count  when  it  will  not  leave  the  other  counts 
of  the  indictment  defective.  Jones  v.  State, 
6  Humph.  435. 

346.  Grounds  for  granting  motion.  The 
objection  that  the  grand  jurors  are  not 
named  in  the  caption  of  the  indictment 
must  be  presented  on  motion  to  quash  the 
indictment  or  by  demurrer.  After  judgment, 
an  allegation  in  an  indictment  that  it  was 
found  by  "  a  grand  jury  of  good  and  lawful 
men,"  is  sufficient.  Dawson  v.  People,  25 
N.  Y.  399. 

347.  Where  the  sheriff  summons  the  grand 
jury  without  a  proper  process,  the  indict- 
ment will  be  quashed  on  motion.  Nicholls 
V.  State,  South.  539. 

348.  The  objection  that  a  bailiff  of  the 
court  was  present  in  the  grand  jury  room 
while  witnesses  were  being  examined,  and 
the  grand  jury  were  deliberating  upon  the 
defendant's  case,  if  valid,  must  be  raised 
upon  a  motion  to  set  aside  the  indictment. 
State  V.  Kimball,  29  Iowa,  267. 

349.  Misconduct  in  the  grand  jury  may 


be   ground    for  quashing    the   indictment. 
State  V.  Dayton,  3  Zabr.  49. 

350.  Where  it  appears  that  the  court  is 
convened  at  a  place  not  designated  by  law, 
the  indictment  will  be  quashed.  Sam  v. 
State,  13  Smed.  &  Marsh.  189. 

351.  An  indictment  will  not  be  quashed 
for  a  defect  in  the  caption,  unless  the  defect 
is  clear  and  decided.  State  v.  Hickman,  3 
Halst.  299. 

352.  An  indictment  which  does  not  charge 
any  offense  may  be  quashed  on  motion.  Com. 
V.  Clark,  6  Gratt.  615;  Bell  v.  Com.  8  lb. 
600. 

353.  An  indictment  for  counterfeiting  was 
quashed  because  the  day  of  the  month  when 
the  offense  was  committed  was  not  alleged. 
State  V.  Roach,  2  Hayw.  552. 

354.  If  a  witness  examined  by  the  prose- 
cutor on  the  trial,  swears  that  he  knows  the 
person  who  is  stated  in  the  indictment  to  be 
unknown,  and  it  appears  that  he  gave  testi- 
mony before  the  grand  jury  disclosing  the 
name,  the  indictment  cannot  be  sustained. 
It  is  the  ignorance  of  the  grand  jury,  and 
not  of  the  petit  jury,  which  authorizes  the 
statement  that  the  person  is  unknown.  It 
does  not  sustain  the  objection  that  the 
evidence  on  the  trial  discloses  the  name, 
unless  it  at  the  same  time  appears  that  the 
name  was  known  to  the  grand  jury.  White 
V.  People,  32  N.  Y.  465. 

355.  Where  two  or  more  distinct  and  sep- 
arate felonies  are  contained  in  the  same  in- 
dictment, it  may  be  quashed,  or  the  prosecu- 
tor compelled  to  elect  upon  which  charge  he 
will  proceed.  But  in  cases  of  misdemeanor, 
several  distinct  offenses  may  be  joined  in  the 
same  indictment,  and  tried  at  the  same  time. 
Kane  v.  People,  8  Wend.  203;  State  v. 
Smith,  8  Blackf.  489. 

356.  An  indictment  for  overflowing  a 
highway  will  be  quashed  where  there  is  no 
proof  of  any  authority  to  lay  out  the  high- 
way.    Pennsylvania  v.  Oliphant,  Addis.  345. 

357.  In  case  of  several  defendants. 
Where  gn  indictment  is  quashed  as  to  one 
of  several  defendants,  it  is  quashed  as  to  all. 
State  V.  Smith,  1  Murphy,  213. 

358.  But  where  a  husband  and  wife  were 
jointly  indicted  for  embezzlement  and  lar- 


mDICTMEN  T.— INFOKM  ATION. 


353 


Quashing  Indictment. 


Nature. 


ceny,  it  was  held  that  quashing  the  indict- 
ment as  to  the  wife  did  not  destroy  it  as  to 
the  husband.  Coats  v.  People,  4  Parker, 
662. 

359.  When  motion  denied.  The  court 
will  not  look  into  the  evidence  that  was  be- 
fore the  grand  jury,  with  a  view  to  quash 
the  indictment.  State  v.  Boyd,  3  Hill,  S.  C. 
288  ;  State  v.  Dayton,  3  Zabr.  49. 

360.  It  is  not  a  ground  for  quaking  the 
indictment,  that  the  minutes  of  evidence 
taken  before  the  grand  jury  do  not  show 
sufficient  facts  to  justify  the  finding  of  the 
indictment.     State  v.  Morris,  36  Iowa,  272. 

361.  The  fact  that  the  grand  jury  re- 
ceived evidence  which  was  incompetent,  is 
not  a  sufficient  ground  for  setting  aside  an 
indictment.     State  v.  Tucker,  20  Iowa,  508. 

362.  An  indictment  will  not  be  quashed 
on  the  ground  that  the  name  of  one  of  the 
grand  jurors  in  the  caption  is  different  from 
his  name  in  the  panel,  if  in  reality  he  is  the 
same  person.     State  v.  Norton,  3  Zabr.  33. 

363.  An  indictment  will  not  be  quashed 
on  the  ground  that  the  investigation  of  the 
charge  was  still  pending  before  the  commit- 
ting magistrate  when  the  indictment  was 
found.  People  v.  Horton,  4  Parker,  222; 
People  v.  Heffernan,  5  lb.  393. 

364.  The  mode  of  selecting  the  grand 
jury  will  not  be  a  ground  for  quashing  the 
indictment.  State  v.  Bait,  7  Blackf.  9; 
State  v.  Henley,  lb.  324. 

365.  Where  one  of  several  counts  in  an  in- 
dictment is  good,  a  motion  to  quash  will  not 
be  granted.  State  v.  Wishon,  15  Mo.  503 ; 
State  V.  Stalker,  3  Ind.  570;  Kane  v.  People, 
3  Wend.  363;  State  v.  Rector,  11  Mo.  28. 

366.  Where  one  of  two  counts  is  bad,  the 
prosecution  may  enter  a  nolle  prosequi  as  to 
the  defective  count,  which  will  remove  the 
grounds  for  the  motion  to  quash  the  indict- 
ment, and  leave  the  defendant  to  be  tried 
upon  the  good  count.  State  v.  Buchanan, 
1  Ired.  59.  Or  the  defective  count  may  be 
reached  by  demurrer.  State  v.  Coleman,  5 
Porter,  32.  , 

367.  An  indictment  cannot  be  quashed  for 
any  matter  which  does  not  appear  on  the 
faee  of  the  indictment.  Com.  v.  Church,  1 
Penn.  St.  105  ;  Wickwire  v.  State,  19  Conn.  | 

23 


477;  contra,  State  v.  Batcheldor,  15  Mo. 
207 ;  State  v.  Kitchen,  lb. ;  State  v.  Wall, 
lb.  208. 

368.  In  Maine  the  statute  (R.  S.  ch.  172, 
§  38)  forbids  the  quashing  of  an  indictment  or 
arresting  judgment  for  any  omission  or  mis- 
statement which  does  not  tend  to  the  preju- 
dice of  the  defendant.  State  v.  Nelson,  29 
Maine,  329. 

369.  After  plea  of  not  guilty,  it  is  too  late 
to  move  to  quash  the  indictment.  State  v, 
Burlingham,  15  Maine,  104 ;  State  v.  Barnes, 
39  lb.  561 ;  People  v.  Monroe  O.  &  T.  20 
Wend.  108.  But  the  defendant  may  with- 
draw his  plea,  in  order  to  make  a  motion  to 
quash.     Matter  of  Nicholls,  2  South.  539. 

370.  An  indictment  will  not  be  quashed 
after  conviction,  on  the  ground  that  during 
the  trial  a  second  indictment  was  found  for 
the  same  offense.  People  v.  Monroe  O.  &  T. 
supra. 

See  Grand  jury.  For  indictments  in  the 
several  offenses,  see  the  titles  of  those  offenses. 


SuformatioiL 


1.  Nature.  In  New  Hampshire,  an  infor- 
mation is  an  official  act,  devolving  solely  on 
the  attorney  general ;  and  his  action  is  not 
limited  by  leave  of  court,  or  any  preliminary 
inquiry  instituted  by  it.  State  v.  Dover,  9 
New  Hamp.  468. 

2.  When  it  will  lie.  An  information  will 
lie  at  common  law  for  an  exhibition  that 
tends  to  corrupt  the  morals  of  the  commu- 
nity, or  shocks  humanity  with  its  indecency. 
Knowles  v.  State,  3  Day,  103. 

3.  Offenses  against  the  laws  of  the  United 
States, in  all  but  capital  and  infamous  crimes, 
may  be  prosecuted  by  information.  There 
must  first  be  a  complaint  supported  by  an 
oath  or  affirmation  showing  probable  cause, 
followed  by  an  arrest  and  examination ;  and 
if  the  accused  is  held  to  bail  or  committed, 
the  district  attorney,  on  filing  the  magis- 
trate's or  commissioner's  return  with  the 
proofs,  will  have  leave  to  file  the  informa- 
tion. U.  S.  V.  Shepard,  1  Abb.  431 ;  U.  S. 
V.  Miller,  1  Sawyer,  701. 

4.  What  to  contain.     Where  an  informa- 


354 


INFORMATION.— INNKEEPER. 


What  to  Contain. 


Who  is. 


tion  for  selling  spirituous  liquor  without  a 
license  contained  a  hundred  counts,  each 
count  having  a  distinct  caption,  and  signed 
at  the  end  of  the  last  count,  on  the  last  page, 
but  tlie  pages  were  fastened  together,  the 
information  was  held  good.  State  v.  Pad- 
dock, 24  Vt.  312. 

5.  An  information  by  the  attorney  general 
need  not  allege  that  he  informs  under  his 
official  oath.     State  v.  Sickles,  Brayt.  132. 

6.  Where  an  information  charged,  not  that 
the  defendant  committed  the  offense,  but 
that  he  was  guilty  as  the  district  attorney 
verily  believed,  it  was  held  bad  on  motion 
to  quash.     Vannatta  v.  State,   31  Ind.  210. 

7.  An  information  for  being  a  common 
cheat  must  state  particular  acts.  State  v. 
Johnson,  1  Chip.  129. 

8.  An  information  for  exhibiting  a  show, 
must  state  acts  of  indecency,  barbarity,  or 
immorality,  in  order  that  the  court  may  see 
whether  the  offense  is  within  the  statute,  or 
is  an  offense  at  common  law.  Knowles  v. 
State,  3  Day,  103. 

9.  An  information  for  a  first  offense  need 
not  allege  that  it  is  a  first  offense.  Kilbourn 
V.  State,  9  Conn.  500.  In  Massachusetts,  an 
information  for  additional  punishment  need 
not  set  forth  the  previous  convictions  and 
sentences  in  extensn^  but  it  should  aver  them 
with  sufficient  particularity  to  identify  them, 
and  to  show  the  character  of  the  offense 
charged.     Wilde  v.  Com.  2  Mete.  408. 

10.  In  Massachusetts,  under  the  statute 
(of  1832,  ch.  73,  and  1833,  ch.  85)  inflicting 
additional  punishment  on  convicts  who  had 
been  discharged  from  former  sentences  "  in 
due  course  of  law,"  it  was  held  sufficient  for 
an  information  for  such  punishment,  to  al- 
lege that  the  convict  had  been  discharged 
from  a  former  sentence  by  a  pardon.  Evans 
V.  Com.  3  Mete.  453.  But  see  Wilde  v.  Com. 
2  lb.  408. 

11.  In  general,  an  information  for  an  of- 
fense created  by  statute,  is  sufficient  which 
sets  forth  the  offense  in  the  language  of  the 
statute;  and  if  the  defendant  insists  upon 
greater  particularity,  he  must  show  that  the 
case  fiills  within  some  exception  to  the  gen- 

•  eralrule.     Therefore,  where  an  information 
under  the  statute  of  Connecticut,  prohibiting 


the  sale  of  spirituous  liquors  without  license, 
alleged  in  the  language  of  the  statute,  that 
the  defendant  at  a  certain  time  and  place, 
sold  spirituous  liquors  to  A.  B.  without 
license,  not  stating  the  kind,  quantity,  or 
value  of  the  liquor  sold,  or  the  terms  of  sale, 
nor  the  delivery  of  the  liquor,  it  was  held 
that  as  the  statute  did  not  specify  either  the 
kind,  quantity,  or  value  of  the  liquors,  the 
sale  of  Tivhich  constituted  the  offense,  and  as 
these  facts  did  not  affect  either  the  jurisdic- 
tion of  the  court,  or  the  nature  or  degree  of 
punishment,  the  information  was  sufficiently 
certain.     Whiting  v.  State,  14  Conn.  487. 

12.  Amendment.  An  information  cannot 
be  amended  by  adding  charges  to  it.  Com. 
V.  Rodes,  1  Dana,  595.  A  variance  between 
the  presentment  and  information  may  be 
taken  advantage  of  by  objecting  to  the  filing 
of  the  information,  or  by  motion  to  quash  it. 
Jones's  Case,  2  Graft.  555. 

13.  In  New  Hampshire,  criminal  informa- 
tions which  are  not  found  upon  the  oath  of 
a  jury,  may  be  amended  by  the  court,  or  by 
a  single  judge  at  chambers.  State  v.Weare, 
38  New  Hamp.  314. 

14.  Plea.  Under  an  information  against 
two,  the  defendants  may  put  in  separate 
pleas,  one  putting  themselves  on  the  court, 
and  the  other  on  the  jury.  State  v.  Taylor, 
1  Root,  226. 

15.  Conclusion.  Where  an  information 
concludes  •'  against  the  form  of  the  statute," 
and  the  offense  charged  is  not  prohibited  by 
any  statute,  these  words  may  be  rejected  as 
surplusage.  Southworth  v.  .State,  5  Conn. 
325. 


3unkecper, 


1.  Who  is.  To  constitute  an  innkeeper, 
tavern  keeper,  or  hotel  keeper,  the  party  so 
designated  must  receive  and  entertain  as 
guests  tliose  who  choose  to  visit  his  house; 
and  a  restaurant,  where  meals  are  furnished, 
is  not  an  inn  or  tavern.  People  v.  Jones,  54 
Barb.  311. 

2.  A  man  may  be  an  innkeeper,  although 
he  keeps  an  inn  imperfectly,  or  combines 
that  employment  with  others.     If  he  is  pre- 


INNKEEPER.— INSANITY. 


355 


Right  to  Detain  Horses. 


When  a  Defense. 


pared  and  holds  himself  out  to  the  public, 
as  ready  to  entertain  travelers,  strangers, 
transient  guests  with  their  teams,  although 
he  may  sometimes  make  special  bargains 
■with  his  customers,  may  not  keep  his  house 
open  in  the  night,  and  may  not  keep  the 
stable  at  which  he  puts  up  the  horses,  at  his 
house.     Com.  v.  Wetherbee,  101  Mass.  214. 

3.  Right  to  detain  horses.  The  right 
of  an  innkeeper  to  detain  horses  for  their 
keeping  does  not  extend  to  the  horses  of  in- 
dividuals which  are  employed  in  carrying 
the  United  States  mail.  U.  S.  v.  Barney,  3 
Wheeler's  Crim.  Cas.  513. 

4.  Indictment.  It  is  not  enough  in  an  in- 
dictment against  an  innholder  for  permit- 
ting persons  to  play  at  cards  and  other 
unlawful  games  in  his  house,  to  aver  that  the 
defendant  was  duly  licensed  as  an  innholder, 
without  also  alleging  that  the  defendant  was 
actually  keeping  an  inn  at  the  time  of  the 
playing  cards  in  his  house.  State  v.  Bal- 
kom,  3  Pick.  281. 


hxBanxtm 

1,  When  a  defense. 

2.  Evidence. 


1.  When  a  defense. 

1.  Partial  insanity.  Partial  insanity  is 
not  necessarily  an  excuse  for  crime,  and  can 
only  be  so  when  it  deprives  the  party  of  his 
reason  in  regard  to  the  act  charged.  State 
v.  Huting,  21  Mo.  464. 

2.  A  state  of  partial  insanity  will  not  ex- 
cuse from  responsibility  if  the  person  have 
reason  sufficient  to  enable  him  to  distinguish 
between  right  and  wrong  as  to  the  particu- 
lar act  he  is  doing.  Bovard  v.  State,  30 
Miss,  600. 

3.  Moral  insanity.  It  has  been  denied 
that  moral  insanity  has  any  foundation  in 
law.  Choice  v.  State,  31  Ga.  424;  affi'd 
Humphreys  v.  State,  45  lb.  190.  In  Ken- 
tucky, it  has  been  held  that  to  render  moral 
insanity  an  excuse  there  must  be  proved  the 
existence  of  an  habitual  tendency  developed 
in  previous  cases,  becoming  in  itself  a  second 
nature;    but   it   need  nut  liuve   manifested 


itself  in  former  acts  of  similar  character  to 
the  act  charged.  But  it  must  have  over- 
whelmed the  mental  faculties  to  such  an 
extent  as  to  render  the  accused  incapable  of 
governing  his  actions  at  the  time.  Scott  v. 
Com.  4  Mete.  Ky.  227. 

4.  Test  of  responsibility.  It  is  erroneous 
to  charge  that  "when  the  jury,  from  evi- 
dence, entertain  a  rational  doubt  on  the 
question  of  insanity,  they  should  always 
find  in  favor  of  insanity."  The  proper  test 
of  responsibility  is,  whether  the  defendant 
had  sufficient  reason  to  distinguish  between 
right  and  wrong,  and  sufficient  power  of 
control  to  govern  his  actions.  Smith  v. 
Com.  1  Duvall,  Ky.  224;  Kriel  v.  Com.  5 
Bush,  Ky.  362 ;  People  v.  McDonnell,  47  Cal. 
134;  s.  0.  2  Green's  Crim.  Reps.  441, 

5.  The  test  of  responsibility  for  criminal 
acts,  where  unsoundness  of  mind  is  inter- 
posed as  a  defense,  is  the  capacity  of  the 
accused  to  distinguish  between  right  and 
wrong  at  the  time  of,  and  with  respect  to 
the  act.  A  criminal  act  cannot  be  excused 
upon  the  notion  of  an  irresistible  impulse  to 
commit  it,  where  the  offender  has  the  ability 
to  discover  his  legal  and  moral  duty  in 
respect  to  it.  Flanagan  v.  People,  52  N.Y. 
467 ;  s.  c.  1  Green's  Crim.  Reps.  377. 

6.  The  unsoundness  of  mind  which  will 
entitle  the  defendant  to  an  acquittal  under 
the  plea  of  insanity  must  be  of  such  a 
degree  as  to  create  an  uncontrollable  impulse 
to  do  the  act  by  overriding  the  reason  and 
obliterating  the  sense  of  right  and  wrong  as 
to  the  particular  act.  Hopps  v.  People,  31 
111.  385 ;  Spann  v.  State,  47  Ga.  553 ;  s.  c.  1 
Green's  Crim.  Reps.  391. 

7.  The  jury  must  be  satisfied  beyond  a 
reasonable  doubt  of  the  defendant's  mental 
capacity  to  commit  the  crime  charged.  If 
he  was  moved  to  the  act  by  an  insane  im- 
pulse controlling  his  will  and  judgment,  he 
is  not  guilty,  and  if  lie  was  a  monomaniac 
on  any  subject,  it  is  immaterial  on  what 
subject,  so  that  the  insane  impulse  led  to 
the  commission  of  the  act.  Stevens  v.  State, 
31  Ind.  485. 

8.  Where  homicidal  insanity  is  relied  on, 
it  ought  not  to  be  regarded  as  sufficient  to 
exculpate,  unless  the  jury  believe,  from  the 


356 


mSANITY. 


When  a  Defense. 


Evidence. 


evidence,  that  the  propensity  to  commit  the 
act  existed  in  such  violence  as  to  subjugate 
the  intellect,  control  the  will,  and  render  it 
impossible  for  the  accused  to  do  otherwise 
than  to  yield  to  the  insane  impulse.  State 
V.  Felter,  25  Iowa,  67. 

9.  The  following  charge  upon  the  de- 
fense of  insanity  was  held  proper :  "  If  the 
prisoner  had  power  of  mind  enough  to  be 
conscious  of  what  he  was  doing  at  the  time, 
then  he  was  responsible  to  the  law  for  that 
act."    Brown  v.  Com.  78  Penn.  St.  122. 

10.  On  a  trial  for  murder,  the  following 
charge  of  the  court  was  held  unexception- 
able: "  To  be  a  subject  of  punishment,  an 
individual  must  have  reason  and  understand- 
ing enough  to  enable  him  to  judge  of  the 
nature,  character,  and  consequences  of  the 
act  charged  against  him.  He  must  not  be 
overcome  by  an  irresistible  imjiulse  arising 
from  disease.  Every  one  of  mature  years  is 
presumed  to  be  of  sound  mind.  If  a  person 
charged  with  crime  be  shown  to  have  been 
insane  a  short  time  before  the  commission  of 
the  act,  the  evidence  should  show  sanity  at 
the  time,  or  the  jury  should  acquit."  State 
v.  Johnson,  40  Conn.  13G;  s.  c.  2  Green's 
Crim.  Reps.  487. 

11.  How  determined.  When,  after  the 
jury  are  impaneled,  there  is  reasonable 
ground  to  doubt  the  sanity  of  the  accused, 
it  is  the  duty  of  the  court  to  suspend  the 
trial  and  to  cause  another  jury  to  be  im- 
paneled to  inquire  into  the  fact  of  such 
insanity.  If  the  latter  jury  find  that  the 
prisoner  is  insane,  they  should  inquire 
whether  or  not  he  was  insane  at  the  time  of 
the  alleged  offense.  But  if  they  find  that 
the  accused  is  sane,  his  trial  should  proceed. 
Gruber  v.  State,  3  West  Va.  699. 

2.  Evidence.  \^ 

12.  When  introduced  contrary  to  wishes 
of  defendant.  Whenever  a  prisoner's  sound- 
ness of  mind  is  in  question,  the  rule  that  he 
may  control  or  discharge  his  counsel  at 
pleasure,  is  so  far  relaxed  as  to  permit  them 
to  offer  evidence  as  to  his  insanity,  against 
his  will.     State  v.  Patten,  10  La.  An.  299. 

13.  Importance  of,  to  defense.  Every 
one  must  be  held  accountable  for  the  conse- 


quences of  his  acts  consciously  and  deliber- 
ately performed,  unless  he  can  show  that  he 
is  in  that  condition  which  stamps  him  as  an 
irresponsible  being,  and  proof  of  his  intel- 
lectual capacity  is  improper.  Patterson  v. 
People,  46  Barb.  625. 

14.  What  proof  required.  The  law  de- 
mands such  evidence  in  support  of  the  de- 
fense of  insanity  as  will  satisfy  the  jury  that 
when  the  defendant  committed  the  act  he 
was  insane.  Graham  v.  Com.  16  B.  Mon. 
587;  State  v.  Smith,  53  Mo.  267;  s.  c.  3 
Green's  Crim.  Reps.  597.  It  must  be  proved 
that  at  that  time  the  accused  was  laboring 
under  such  a  defect  of  reason  as  not  to  know 
the  nature  and  quality  of  the  act  he  was 
doing,  or  that  he  did  not  know  he  was 
doing  wrong.  Kelly  v.  State,  3  Smed.  & 
Marsh.  518;  and  this  must  be  clearly  estab- 
lished. People  V.  McDonnell,  47  Cal.  134; 
s.  c.  2  Green's  Crim.  Reps.  441. 

15.  It  is  not  erroneous  to  charge  the  jury 
that  ' '  a  man  is  not  insane  who  knows  right 
from  wrong;  who  knows  the  act  he  is  com- 
mitting is  a  violation  of  law,  and  wrong  in 
itself."     "Willis  v.  Peojile,  5  Parker,  621. 

16.  The  following  instruction  was  held 
projjer :  ' '  Before  you  can  acquit  on  the 
ground  of  insanity,  you  must  be  clearly  sat- 
isfied that  at  the  time  the  defendant  com- 
mitted the  homicide,  he  was  laboring  under 
a  mental  delusion  or  monomania,  such  as 
irresistibly  and  uncontrolably  forced  him 
to  commit  the  crime.  Fonts  v.  State,  4 
Greene,  500. 

17.  Whether  there  is  such  a  mental  dis- 
ease as  dipsomania,  and  whether  the  ac- 
cused had  that  disease,  and  whether  a  hom- 
icide was  the  product  of  such  disease,  are 
questions  of  fact  for  the  jury.  State  v.  Pike, 
49  New  Hamp.  399 ;  State  v.  Jones,  50  lb. 
369. 

18.  An  irritable  temper  and  excitable  dis- 
position of  mind  do  not  of  themselves 
prove  insanity.  If  a  person,  when  he  kills 
another,  knows  that  the  deed  was  unlawful 
and  morally  wrong,  he  is  responsible.  Wil- 
lis V.  People,  32  N.  Y.  715. 

19.  Reasonable   doubt.     The  jury  mu 
be  satisfied  beyond  a  reasonable  aoubt  that 
the  prisoner  was  sane.     Wagner  v.  Peopl 


INSANITY. 


357 


Evidence. 


4  N.  Y.  Ct.  of  App.  Decis.  509;   affi'g  54 
l^  Barb,  367 ;  s.  c.  2  Keyes,  684. 

20.  The  defendant  is  not  bound  to  prove 
)  that  he  is  insane  by  a  preponderance  of  evi- 
dence; but  if  there  is  a  reasonable  doubt 
"whether  lie  is  sane  or  insane,  he  must  be  ac- 
quitted. State  V.  Crawford,  11  Kansas,  33; 
s.  c.  2  Green's  Crim.  Reps.  638;  Polk  v. 
State,  19  Ind.  170.  It  is  erroneous  to  charge 
the  jury  that  "  the  proof  of  insanity  must  be 
as  clear  and  satisfactory  as  the  proof  of  the 
crime  ought  to  be  to  find  a  sane  man 
guilty,"  or  to  charge  that  "if  the  jury  have 
a  reasonable  doubt  as  to  the  insanity  of  the 
defendant,  they  ought  to  convict."  Dove  v. 
State,  3  Heisk.  348 ;  s.  c.  1  Green's  Crim. 
Reps.  412. 

21.  Where  the  prisoner  relies  on  the  de- 
fense of  insanity,  he  must  prove  it  to  the 
satisfaction  of  the  jury.  If  upon  the  whole 
evidence  they  believe  he  was  insane  when 
he  committed  the  act,  they  should  acquit 

^  him;  but  not  upon  any  fanciful  ground  that 
l/    though  they  believe  he  was  then  sane,  yet 
\     as  there  may  be  a  rational  doubt  of  such 
sanity,  he  is  therefore  entitled  to  an  acquit- 
tal.    Boswell  V.  Com.  20  Gratt.  860. 

22.  The  defense  of  insanity  must  be  es- 
tablished to  the  satisfaction  of  the  jury  by 
clear  and  convincing  proof  But  if  they 
entertain  a  reasonable  doubt  of  the  sanity 
of  the  prisoner,  he  must  be  acquitted.  State 
V.  Marler,  2  Ala.  43  ;  People  v.  McCann, 
16  N.  Y.  58. 

23.  Insanity  must  be  established  by  evi- 
dence in  the  case  with  the  same  clearness 
and  certainty  as  any  other  fact  alleged  in 
defense;  that  is  to  say,  the  proof  must  be 
such  in  amount,  that  if  the  single  issue  of 
the  sanity  or  insanity  of  the  defendant 
should  be  submitted  to  the  jury  in  a  civil 
case,  they  would  find  that  he  was  insane. 
People  V.  Coflfman,  24  Cal.  230 ;  People  v. 
Best,  39  lb.  690. 

24.  The  following  instruction,  on  a  trial 
for  murder,  was  held  correct:  "It  is  not 
necessary,  in  order  to  acquit,  that  the  evi- 
dence upon  the  question  of  insanity  should 
satisfy  you  beyond  all  reasonable  doubt 
that  the  defendant  was  insane.  It  is  suffi- 
cient, if,  upon  a  consideration  of  all  the  evi- 


dence, you  are  reasonably  satisfied  that  he 
was  insane.  If  the  weight  or  preponderance 
of  the  evidence  shows  the  insanity  of  the  de- 
fendant, it  raises  a  reasonable  doubt  of  his 
guilt."  State  v.  Felter,  82  Iowa,  49.  But 
the  sanity  of  the  accused  being  once  estab- 
lished in  the  case,  the  accused  can  only 
avoid  it  by  a  preponderance  of  proof.    lb. 

25.  Acts  and  declarations  of  accused. 
Where  on  a  trial  for  murder,  the  defense  is 
insanity,  witnesses  for  the  prisoner  may  tes- 
tify as  to  the  acts,  declarations  and  conver- 
sations of  the  prisoner,  shortly  previous  to, 
at  the  time  of,  or  after  the  homicide.  State 
v.  Hays,  22  La.  An.  39 ;  but  not  as  to  the 
impression  the  prisoner's  conduct  made  on 
the  mind  of  another  person,  the  day  before 
the  homicide.  Lake  v.  People,  1  Parker, 
495 ;  aflS'd  12  N.  Y.  358. 

26.  Upon  the  question  of  sanity  at  the 
time  of  committing  an  offense,  the  acts,  con- 
duct, and  habits  of  the  prisoner  at  a  subse- 
quent time,  to  be  admissible  in  evidence, 
must  be  so  connected  with  a  disordered  or 
weakened  mental  condition  preceding  the 
time  of  the  offense  as  to  lead  to  the  infer- 
ence of  its  continuance;  or  else  they  must 
indicate  unsoundness  to  such  a  degree  or  of 
so  permanent  a  nature  as  to  have  required  a 
longer  period  than  the  interval  for  its  pro- 
duction or  development.  Com.  v.  Pomeroy, 
117  Mass.  143. 

27.  Where  the  defense  is  insanity,  and  the 
coolness  and  unconcern  of  the  prisoner  at 
the  time  he  did  the  fatal  act  are  made  a 
prominent  feature  in  the  case,  it  is  compe- 
tent for  the  prosecution  to  show  that  several 
years  before  the  commission  of  the  crime 
charged,  he  was  engaged  in  smuggling, 
which  demanded  at  all  times,  great  coolness 
and  hardihood.  Hopps  v.  People,  31  111. 
385. 

28.  It  is  not  error  for  the  judge,  on  a  trial 
for  murder,  to  say  to  the  jury:  "  If  you  find 
the  prisoner  at  tlie  time  Dr.  B.  was  observ- 
ing him  through  the  hole  in  the  wall,  as  de- 
scribed by  the  witnesses,  was  watching  to 
see  whether  he  was  observed,  and  was  regu- 
lating his  conduct  accordingly,  it  would 
raise  a  very  strong  presumption  that  the 
prisoner  was  feigning  insanity,  and  indeed 


358 


INSANITY. 


Evidence. 


such  evidence  of  design  and  calculation  on 
his  part,  as  to  be  in  my  opinion,  entirely 
fatal  to  his  defense  of  insanity."  McKee  v. 
People,  36  N.  Y.  113. 

29.  Character  of  prisoner.  Where  the 
defense  is  insanity,  evidence  is  admissible  of 
the  uniform  good  character  of  the  accused 
as  a  man  and  a  citizen.  Hopps  v.  People, 
31  111.  385. 

30.  Where  on  a  trial  for  murder  the  ques- 
tion was  whether  the  act  was  the  product  of 
insanity,  or  of  a  naturally  malignant  and 
vicious  heart,  it  was  held, competent  to  in- 
troduce evidence  relative  to  the  prisoner's 
conduct  at  various  times  during  many  years 
before  the  homicide,  tending  to  show  his 
disposition  and  character.  State  v.  Jones, 
50  New  Hamp.  369. 

31.  Opinions.  In  Ohio,  it  was  held  that 
on  a  question  of  insanity,  non-professional 
witnesses  might  give  their  opinion  in  con- 
nection with  the  facts  on  which  such  opin- 
ion was  based.  Clark  v.  State,  13  Ohio,  483. 
In  Iowa,  on  a  trial  for  murder,  a  witness  hav- 
ing testified  that  the  prisoner  "never  was 
just  right,"  it  was  held  proper  for  the  jirose- 
cution  to  ask  the  witness  whether  in  his 
opinion  the  prisoner  was  not  intelligent 
enough  to  know  right  from  wrong.  State 
V.  Porter,  34  Iowa,  131 :  s.  c.  1  Green's  Crim. 
Reps.  241. 

32.  But  in  New  York,  it  was  held  proper 
to  exclude  questions  put  to  non-professional 
witnesses  who  had  testified  to  facts  tending 
to  show  the  mental  unsoundness  of  the  ac- 
cused, as  to  what  they  thought  of  his  state 
of  mind.     Eeal  v.  People,  42  N.  Y.  270. 

33.  A  party  seeking  to  establish  the  de- 
fense of  insanity  cannot  prove  by  an  expert 
that  he  entertained  doubts  upon  the  ques- 
tion.    Sanchez  v.  People,  22  N.  Y.  147. 

34.  Rumor.  Where  on  the  trial  of  a  hus- 
band for  the  murder  of  his  wife,  the  defense 
of  insanity  was  set  up,  and  it  was  sought  to  be 
proved  that  the  prisoner  labored  under  the 
insane  delusion  that  his  wife  had  been  guilty 
of  adultery,  it  was  held  competent  to  prove 
the  existence  of  such  a  rumor  in  the  village 
where  the  prisoner  and  his  wife  lived.  State 
V.  Jones,  50  New  Hamp.  360. 

35.  Hereditary  taint.     Wheie  on  a  trial 


for  murder,  there  is  evidence  tending  to  show 
the  insanity  of  the  accused,  it  is  competent 
for  the  defense  to  prove  that  his  parents  and 
other  near  relatives  were  insane.  People  v. 
Smith,  31  Cal.  466. 

36.  Where  the  insanity  of  the  defendant 
is  in  issue,  it  is  competent  to  prove  that  his 
brother  became  insane  from  a  cause  similar 
to  that  which  it  was  alleged  had  induced 
the  destructive  act  of  the  defendant.  Peo- 
ple V.  Garbutt,  17  Mich.  9. 

37.  Where  insanity  is  relied  on  as  a  de- 
fense, evidence  of  hereditary  taint  is  not  ad- 
missible without  some  proof  that  the  pris- 
oner was  affected  by  some  form  of  mental 
alienation.  State  v.  Cunningham,  72  N.  C. 
409. 

38.  On  an  inquisition  as  to  the  sanity  of  a 
person  found  guilty  of  murder,  an  inquiry 
into  his  past  life,  to  see  if  be  had  been  insane 
before,  is  only  admissible  after  proof  that 
since  his  conviction  he  has  given  evidence 
of  insanity.  Spann  v.  State,  47  Ga.  549 ; 
s.  c.  1  Green's  Crim.  Reps.  393. 

39.  Presumption  from  previous  derange- 
ment. Where  it  is  shown  that  the  intellec- 
tual faculties  were  so  impaired  as  to  produce 
a  general  habitual  derangement  of  them,  not 
traceable  to  some  temporary  cause,  the  law 
will  presume  the  mind  to  have  continued  in 
the  same  condition  until  the  contrary  is 
shown.     People  v.  Francis,  38  Cal.  183. 

40.  Where  habitual  unsoundness  of  mind 
is  once  shown  to  exist,  it  is  presumed  to  con 
tinue  to  exist  until  the  23resumption  is  re 
butted  beyond  a  reasonable  doubt.  But 
temporary  insanity  does  not  draw  after  it 
such  a  presumption.  State  v.  Reddick,  7 
Kansas,  143. 

41.  But  the  finding  of  a  jury  upon  a  pre- 
liminary issue  that  the  accused  was  then 
sane,  cannot  be  considered  upon  the  ques- 
tion of  insanity  alleged  as  a  defense  upon 
the  trial.     Freeman  v.  People,  4  Denio,  9. 

42.  Presumption  from  proof  of  insanity 
at  trial.  Where  a  person  was  tried  for 
murder  four  months  after  it  was  charged  to 
have  been  committed,  it  was  held  that  to 
establish  the  defense  of  insanity,  it  was 
competent  for  the  defense  to  prove  that  the 


It     1/ 


INSANITY. 


359 


Evidence. 


prisoner  was  insane  at  the  time  of  the  trial. 
Freeman  v.  People,  supra. 

43.  A  verdict  on  an  issue  as  to  the  sanity 
of  the  prisoner,  that  he  is  insane,  is  compe- 
tent evidence  upon  the  question  whether  the 
defendant  was  insane  at  the  time  of  the 
commission  of  the  alleged  offense.  People 
V.  FaiTell,  31  Cal.  576. 

44.  Burden  of  proof.  Sanity  is  jiresumed 
to  be  the  normal  state  of  the  human  mind, 
and  it  is  not  incumbent  on  the  prosecution 
to  give  affirmative  evidence  that  such  state 
exists  in  a  particular  case.  Walter  v.  Peo- 
ple, 33  JST.  Y.  147.  But  when  any  evidence 
is  given  which  tends  to  overthrow  that  pre- 
sumption, the  burden  of  proof  is  upon  the 
prosecution.  People  v.  Garbutt,  17  Mich. 
9 ;  Bradley  v.  State,  31  Ind.  492. 

45.  Although  sanity  is  the  normal  condi- 
tion of  the  human  mind,  and  in  dealing 
with  acts  there  can  be  no  presumption  of 
insanity,  yet  upon  the  traverse  of  an  indict- 
ment for  murder  when  the  homicide  is  ad- 
mitted and  the  defense  of  insanity  inter- 
posed, the  burden  is  with  the  prosecution  to 
show  sanity  which  is  requisite  to  constitute 
the  crime.  People  v.  McCann,  16  N.  Y.  58 ; 
O'Brien  v.  People,  48  Barb.  274 ;  Hopps  v. 
People,  31  111.  385 ;  overruling  Fisher's 
Case,  23  lb.  293,  Walker,  J.,  dissenting;  con- 
tra, Lake  v.  People,  1  Parker,  495 ;  McKen- 
zie  V.  State,  26  Ark.  334. 

46.  In  New  Hampshire,  on  a  trial  for  mur- 
der, the  prisoner's  counsel  asked  the  court 
to  charge  the  jury  that  sanity  was  a  fact  to 
be  proved  by  the  prosecution  beyond  a  rea- 
sonable doubt;  that  there  was  no  legal  pre- 
sumption of  sanity  as  a  matter  of  law,  or  as 
affecting  the  burden  of  proof  in  criminal 
cases.  The  court  declined  so  to  charge,  and 
instructed  the  jury  that  every  person  of  ma- 
ture age  is  presumed  to  be  sane,  until  there 
is  evidence  tending  to  show  insanity ;  but 
that  when  there  was  evidence  tending  to 
show  insanity,  the  prosecution  must  satisfy 
the  jury  beyond  reasonable  doubt,  that  the 
prisoner  was  sane.  Held  correct.  State  v. 
Pike,  49  New  Hamp.  399. 

47.  In  Maine,  Massachusetts  and  Ohio, 
when  insanity  is  interposed  as  a  defense,  the 
burden  of  proof  is  on  the  defendant,  and  he 


must  satisfy  the  jury  by  a  preponderance  of 
evidence.  State  v.  Lawrence,  57  Maine,  574 ; 
Com.  V.  Eddy,  7  Gray,  583;  Loefiiier  v. 
State,  10  Ohio,  N.  S.  598;  Bond  v.  State,  23 
lb.  349. 

48.  In  Minnesota,  the  following  instruc- 
tion was  held  jjroper:  "The  plea  of  insan- 
ity is  one  for  the  defendant  to  establish. 
The  sanity  of  mankind  being  the  rule,  the 
burden  of  proof  is  on  the  defendant  to 
show  that  an  exception  exists  in  his  case." 
Bonfantiv.  State,  2  Minn.  123;  approved, 
State  V.  Gut,  13  lb.  341. 

49.  In  Pennsylvania,  when  a  homicide  is 
admitted,  and  insanity  alleged  as  an  excuse, 
the  prisoner  will  be  presumed  to  have  been 
sane,  until  the  contrary  is  made  to  appear  in 
his  behalf.  The  evidence  to  establish  in- 
sanity as  a  defense,  must  be  satisfactory,  and 
not  merely  doubtful.  Ortwein  v.  Com.  76 
Peun.  St.  414;    Lynch  v.  Com.  77  lb.  205. 

50.  In  Missouri,  the  burden  of  establish- 
ing the  insanity  of  the  accused  is  on  the 
defense.  State  v.  McCoy,  34  Mo.  531.  But 
it  need  not  be  established  beyond  a  reason- 
able doubt.  It  is  sufficient  if  the  jury  is 
reasonably  satisfied  by  the  weight  or  pre- 
ponderance of  the  evidence  that  the  accused 
was  insane  at  the  time  of  the  commission  of 
the  act.  State  v.  Klinger,  43  Mo.  127; 
State  V.  Hundley,  46  lb.  414;  State  v. 
Smith,  53  lb.  267 ;  State  v.  Holme,  54  lb.  153. 

51.  In  New  .Jersey,  where  the  defense  is 
insanity,  the  burden  of  proof  is  on  the  pris- 
oner; and  the  jury  must  be  satisfied  of  the 
insanity  beyond  a  reasonable  doubt.  State 
V.  Spencer,  1  Zabr.  197. 

52.  In  California,  where  insanity  is  relied 
on  as  a  defense,  the  burden  of  proof  is  on 
the  defendant.  People  v.  McDonell,  47  Cal. 
134 ;  and  if  it  be  a  question  whether  it  was 
the  result  of  intoxication  immediately  in- 
dulged, or  was  caused  by  long  continued 
intemperance,  the  burden  is  on  the  prisoner 
of  proving  it  to  be  of  the  latter  character. 
People  V.  Bell,  49  lb.  485. 

53.  The  jury  ought  not  to  return  a  verdict 
of  guilty  so  long  as  a  reasonable  doubt  rests 
in  their  minds  of  the  prisoner's  capacity  to 
commit  the  offense  charged,  whether  the 
proof  of  insanity  comes  from  the  govern- 


360 


INTOXICATION  AS   AN  EXCUSE   FOR  CRIME. 


Will  not  in  General  Excuse. 


When  Entitled  to  Consideration. 


ment  or  the  accused,  or  part  from  each ;  and 
it  is  incumbent  upon  the  prosecution  to  sat- 
isfy them  beyond  a  reasonable  doubt  of  the 
existence  of  all  the  elements  that  constitute 
the  offense,  including  the  necessary  sound- 
ness of  mind.  State  v.  Bartlett,  43  New 
Hamp.  224 ;  approved,  State  v.  Jones,  50  lb. 
369. 
See  Homicide. 


Jnto^icatioii  as  an  ^3a*cu5c 
for  vdrimc. 

1.  Will  not  in  general  excuse.  Drunk- 
enness is  no  excuse  for  crime,  and  the  person 
who  is  voluntarily  in  that  condition,  takes 
the  consequences  of  his  own  acts.  Lanergan 
V.  People,  50  Barb.  266 ;  Frieiy  v.  People, 
54  lb.  319;  2  N.  Y.  Ct.  of  App.  Decis.  215; 
Slate  V.  Harlow,  21  Mo.  446 ;  Shanahan  v. 
Com.  8  Bush,  463;  s.  c,  1  Green's  Ciim. 
Reps.  373 ;  the  rule  being  that  a  man  cannot 
avail  himself  of  his  intoxication  to  exemjjt 
him  from  any  legal  responsibility  that  would 
attach  to  him  if  sober.  Com.  v.  Hawkins, 
3  Gray,  463.  So  long  as  the  offender  is  ca- 
pable of  conceiving  a  design,  he  will  be  pre- 
sumed, in  the  absence  of  proof  to  the 
contrary,  to  have  intended  the  natural  con- 
sequences of  his  act.  Kenny  v.  People,  31 
N.  Y.  330. 

2.  Where  without  intoxication  the  law 
would  impute  to  the  act  a  criminal  intent, 
as  in  the  case  of  wanton  killiug  without 
provocation,  drunkenness  is  not  available 
to  disprove  such  intent.  Rafferty  v.  Peoijle, 
66  111.  118. 

3.  It  is  no  excuse  for  crime  committed  in 
a  state  of  intoxication  that  a  person  by  con- 
stitutional infirmity,  or  accidental  injury  to 
the  head,  is  more  likely  to  be  maddened  by 
liquor  than  another  person.  Choice  v.  State, 
31  Ga,  424 ;  affi'd  Humphreys  v.  State,  45  lb. 
190. 

4.  On  a  trial  for  murder,  the  court  are  not 
required  to  charge  that  the  jury  may  infer 
from  the  jiresence  of  intoxication  the  ab- 
sence of  premeditation.  O'Brien  v.  People, 
48  Barb.  274 ;  36  N.  Y.  276. 


5.  The  following  instruction  on  a  trial  for 
murder  was  held  proper:  "If  the  jury  are 
satisfied  from  the  evidence  that  the  prisoner 
intended  to  kill  the  deceased,  the  circum- 
stance of  his  being  drunk  at  the  time  is  not 
sufficient  to  repel  the  inference  of  malice 
and  premeditation  or  to  mitigate  the  of- 
fense." State  v.  Cross,  27  Mo.  332,  Richard- 
son, J.,  dissenting. 

6.  In  Alabama,  where  on  a  trial  for  an 
assault  with  intent  to  murder  it  was  proved 
that  the  prisoner  was  so  much  intoxicated 
when  he  committed  the  offense  as  to  be 
reduced  to  a  state  of  temjDorary  insanity,  it 
was  held  that  that  fact  should  have  no  influ- 
ence with  the  jury.  State  v.  Bullock,  13 
Ala.  413. 

7.  The  following  instruction  was  held 
correct:  "Insanity  produced  by  intoxica- 
tion does  not  destroy  responsibility  where 
the  party  when  sane  and  responsible  made 
himself  voluntarily  intoxicated,  and  drunk- 
enness forms  no  defense  whatever  to  the  fact 
of  guilt.  Evidence  of  drunkenness  can  only 
be  considered  by  the  jury  for  the  purpose  of 
determining  the  degree  of  crime."  People 
V.  Lewis,  36  Cal.  531. 

8.  "When  entitled  to  consideration. 
Where  the  circumstances  are  such  as  to 
raise  the  question  whether  the  act  was  the 
result  of  design  or  the  impulse  of  sudden 
passion,  the  intoxication  of  the  accused  is  a 
proper  subject  of  consideration.  State  v. 
Gut,  13  Minn.  341 ;  Kelly  v.  State,  3  Smed. 
&  Marsh.  518;  Golden  v.  State,  25  Ga.  527; 
Jones  V.  State,  29  lb.  594.  When  intoxica- 
tion so  clouds  the  intellect  as  to  deprive  it 
of  the  power  to  think  and  weigh  the  nature 
of  the  act  committed,  it  may  reduce  the 
grade  of  offense.  Jones  v.  Com.  75  Penn. 
St.  403. 

9.  It  is  erroneous  to  charge  the  jury  that 
"  drunkenness  can  never  be  received  as  a 
ground  to  excuse  or  palliate  a  crime,"  how 
far  it  should  be  so  received  depending  on  its 
effect  upon  the  mind.  GoUiher  v.  Com.  2 
Duvall,  Ky.  163 ;  Smith  v.  Com.  1  lb.  224. 

10.  Although  where  malice  is  an  ingredi- 
ent of  the  charge,  intoxication  is  admissible 
in  evidence  to  rebut   it,  yet  this  does  not 


INTOXICATION  AS   AN  EXCUSE   FOR   CRIME. 


361 


When  Entitled  to  Consideration.      Where  Defendant  was  Unconscious  of  his  Act. 


apply  to   intention.     Dawson  v.  State,  16 
Ind.  428. 

11.  If  a  man  without  provocation  kill 
another,  no  degree  of  intoxication  short  of 
that  which  shows  that  he  was  at  the  time 
utterly  incapable  of  acting  from  motive  will 
shield  him  from  conviction.  But  in  cases  of 
homicide,  the  fact  that  the  accused  was 
under  the  influence  of  liquor  may  be  given 
in  evidence  in  his  behalf,  and.  the  efiect  it 
ought  to  have  on  the  verdict  will  depend 
upon  the  other  circumstances  of  the  case. 
People  V.  Rogers,  18  N.  Y.  9;  rev'g  s.  c. 
3  Parker,  633;  s.  p.  Lanergan  v.  People,  6 
Parker,  209. 

12.  It  is  erroneous  to  charge  the  jury  that 
*'in  cases  of  homicide  without  any  jirovoca- 
tion,  the  fact  of  drunkenness  is  entitled  to 
no  consideration,"  and  that  "temporary  in- 
sanity which  has  followed  as  the  immediate 
result  of  voluntary  drinking  to  intoxication 
is  no  excuse  for  crime."  If  the  jury  believe 
from  the  evidence  that  the  defendant  at  the 
time  of  the  killing  was  in  a  state  of  intoxi- 
cation, brought  on  by  drinking  for  the  pur- 
pose of  gratifying  a  sensual  appetite,  or 
indulging  his  feelings  of  social  hilarity, 
without  any  premeditated  crime,  they  ought 
in  determining  the  question  of  malice  and 
mitigation  to  take  into  consideration  the  de- 
fendant's condition.  Smith  v.  Com.  1  Duvall, 
Ky.  224 ;  Curry  v.  Com.  2  Bush,  Ky.67 ;  Kriel 
V.  Com.  5  Bush,  Ky.  363;  Blimm  v.  Com.  7 
lb.  330;  Shanahan  v.  Com.  8  Bush,  Ky.  463. 

13.  On  a  trial  for  murder  charged  to  have 
been  committed  by  the  accused  with  a  club 
in  an  affray,  it  may  be  shown  that  the  ac- 
cused was  intoxicated  at  the  time,  and  for 
this  purpose  a  witness  who  was  well  ac- 
quainted with  the  accused  may  state  his 
opinion  as  to  whether  or  not  the  accused 
was  intoxicated.  Eastwood  v.  People,  3 
Parker,  25 ;  s.  c.  14  N.  Y.  563. 

14.  In  case  of  homicide,  intoxication  is 
not  such  an  excuse  as  will  allow  a  less  than 
ordinarily  adequate  provocation  to  palliate 
the  offense,  unless  it  rendered  him  unable  to 
form  a  willful,  deliberate  and  premeditated 
design  to  kill,  or  incapable  of  judging  of 
his  acts  or  their  legitimate  consequences. 
Keenan  v.  Com.  44  Penn.  St.  55. 


15.  On  a  trial  for  murder,  the  question 
whether  the  prisoner  was  intoxicated  is 
material  in  order  that  the  jury  may  deter- 
mine whether  threats  used  were  the  deliber- 
ate words  of  a  sober  and  bad  man,  or  the 
idle  and  coarse  language  of  one  who  was 
drunk.  People  agst.  Eastwood,  14  N.  Y. 
562. 

16.  On  a  trial  for  murder,  it  is  competent 
to  prove  that  the  deceased  was  intoxicated 
at  the  time  of  the  homicide,  as  tending  to 
show  that  he  was  incapable  of  attack  or 
defense.  State  v.  Home,  9  Kansas,  119; 
s.  c.  1  Green's  Crim.  Reps.  718. 

17.  Where  defendant  was  unconscious 
of  his  act.  If  the  accused  was  so  drunk 
as  not  to  know  what  he  was  doing,  it  may 
be  proved  to  show  absence  of  intention. 
But  the  question  of  malice  must  be  deter- 
mined aside  from  the  fact  of  intoxication. 
Nichols  V.  State,  8  Ohio,  N.  S.  435. 

18.  On  the  trial  of  a  servant  for  stealing 
the  property  of  his  master  intrusted  to  him, 
the  court  charged  the  jury  that  if  the  defend- 
ant at  the  time  he  converted  the  property  to 
his  own  use  was  so  drunk  as  not  to  know 
what  he  was  doing,  he  ought  to  be  acquitted, 
unless  the  evidence  showed  that  the  feloni- 
ous intent  existed  when  he  was  in  the  full 
and  undisturbed  possession  of  his  mental 
faculties.  Held  correct.  State  v.  Schingen, 
20  Wis.  74. 

19.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  do  great  bodily  harm, 
defendant's  counsel  asked  the  court  to  charge 
that  "if  the  jury  believed  from  the  evi- 
dence that  the  defendant  was  in  such  a  state 
of  mind  from  any  cause  that  he  did  not 
know  what  he  was  doing,  they  could  not 
rightfully  convict.''  This  instruction  was 
given  with  the  qualification  that  "  if  the  de- 
fendant did  not  know  what  he  was  doing 
from  being  in  a  state  of  insensibility,  the 
jury  could  not  convict;  but  otherwise,  if 
from  excitement  or  madness,  the  immediate 
consequence  of  indulgence  in  strong  drink." 
Held  error,  for  the  reason  that  if  the  defend- 
ant was  so  drunk  as  not  to  know  what  he 
was  doing,  he  was  incapable  of  forming  an 
intention.  State  v.  Garvey,  11  Minn.  154. 
See  State  v.  Gut,  13  lb.  341. 


3G2 


INTOXICATION  AS   AN  EXCUSE.— JUDGMENT. 


Where  Intoxication  causes  Madness. 


Nature  and  Requisites. 


20.  But  in  Michigan,  it  was  held  proper 

for  the  court  to  refuse  to  charge  the  jury 
that  if  they  believed  that  the  defendant  was 
intoxicated  to  such  an  extent  as  to  make  him 
unconscious  of  what  he  was  doing  at  the 
time  of  the  commission  of  the  oflFense,  the 
defendant  must  be  acquitted.  People  v. 
Garbutt,  17  Mich.  9;  s.  p.  Boswell  v.  Com. 
20  Gratt.  860. 

21.  Where  intoxication  causes  madness. 
Although  evidence  of  intoxication  is  admis- 
sible on  a  trial  for  murder,  because  it  may 
tend  to  cast  light  upon  the  acts,  observa- 
tions, or  circumstances  attending  the  homi- 
cide, yet  intoxication  must  result  in  a  fixed 
mental  disease  of  some  continuance  or  du- 
ration, before  it  will  have  the  effect  to  re- 
lieve from  responsibility  for  crime.  Lanergan 
V.  People,  50  Barb.  266  ;  s.  c.  6  Parker,  209; 
People  V.  Williams,  43  Cal.  344;  s.  c.  1 
Green's  Crim.  Reps.  412. 

22.  While  the  temporary  want  of  reason, 
resulting  from  intoxication,  aflbrds  no  ex- 
cuse for  crime,  it  is  otherwise  as  to  habitual 
madness  caused  by  long  continued  drunken- 
ness. Cromwell  v.  State,  1  Mart.  &  Yerg. 
147;  U.  S.  V.  Drew,  5  Mason,  28;  State  v. 
McGonigal,  .5  Haning.  510. 

23.  The  rule  that  intoxication  creates  no 
exemption  from  criminal  responsibility,  does 
not  apply  to  delirium  tremens,  which  al- 
though the  result  of  prior  vicious  indulgence, 
is  always  shunned,  and  not  voluntarily  as- 
sumed. Maconnekey  v.  State,  5  Ohio,  N.  S.  77. 

24.  Where  delirium  tremens  deprives  a 
person  of  the  capacity  of  knowing  what  he 
is  doing,  or  of  distinguishing  right  from 
wrong,  it  will  save  him  from  criminal  re- 
sponsibility for  his  acts.  O'Brien  v.  People, 
48  Barb.  274,  per  Leonard,  J. 

25.  Proof  must  be  confined  to  date  of 
offense.  Evidence  that  the  accused  was  in 
the  habit,  at  times,  of  drinking  to  excess, 
and  the  effect  of  this  habit  upon  his  mind, 
is  not  proper,  unless  confined  within  a  period 
of  a  few  days  of  the  transaction.  On  a  trial 
for  murder,  the  prisoner's  counsel  oft'ered  to 
prove  that  the  prisoner  was  addicted  to  hard 
drinking;  that  he  sometimes  drank  to  great 
excess,  and  continued  on  drunken  sprees 
for  days  and  weeks  at  a  time,  and  had  had 


delirium  tremens  and  insanity.  The  court 
asked  whether  the  counsel  jjroposed  to  show 
that  within  two  or  three  days  previous  to  the 
homicide,  he  had  one  of  those  fits  on  him. 
The  counsel  replied  that  he  did  not  propose 
to  show  that  by  the  witness,  but  to  lay  a 
foundation  to  prove  it.  The  court  ruled  out 
the  question,  and  afterward  told  the  counsel 
that  if  he  could  show  that  the  prisoner  had 
delirium  tremens  at  or  about  the  time  of  the 
homicide,  he  could  show  it  by  this  or  any 
other  witness ;  to  which  the  counsel  replied 
that  he  proposed  to  show  the  drinking  first. 
Held  no  error.  Real  v.  People,  55  Barb.  551 ; 
affi'd  42  N.  y.  270. 


3copar&u, 


See  Former  acquittal  or  conviction. 


SuDgmcnt. 

1.  Nature  and  requisites. 

2.  Arrest  op  judgment. 


1.  Nature  and  requisites. 

1.  On  demurrer.  A  judgment  against  the 
defendant  on  demurrer  to  an  indictment  for 
a  misdemeanor  is  final.  State  v.  Rutledge, 
8  Humph.  32.  But  see  Ross  v.  State,  9  Mo. 
687. 

2.  Of  conviction.  A  judgment  of  convic- 
tion should  be  certain  and  final,  and  subject 
to  no  future  decision  or  contingency.  Mor- 
ris V.  State,  1  Blackf  37. 

3.  A  judgment  reciting  that  the  jury  were 
selected  and  sworn  to  try  the  prisoner,  who 
was  indicted  for  murder,  and  that  he  was 
thereupon  arraigned  and  pleaded  "not 
guilty  "  to  the  indictment,  is  erroneous.  It 
should  have  stated  that  the  plea  of  the 
prisoner  preceded  the  selection  and  swearing 
of  the  jury.     State  v.  Hughes,  1  Ala.  655. 

4.  Date  may  be  given  in  figures.  The 
day  of  the  sentence  and  day  of  execution 
may  be  given  in  figures,  instead  of  letters. 
Noles  v.  State,  24  Ala.  672.  In  California, 
the  practice  of  designating  in  a  judgment  of 
death,  a  day  for  carrying  it  into  eflFect,  is  not 


JUDGMENT. 


3G3 


Nature  and  Requisites. 


Arrest  of  Judgment. 


in  confoitnity  with  the  statute,  which  requires 
that  the  day  should  be  designated  in  the 
warrant  for  the  execution,  and  not  in  the 
judgment.  People  v.  Bonilla,  38  Cal.  99; 
People  V.  Murphy,  45  lb.  137  ;  s.  c.  2  Green's 
Crim.  Reps.  414. 

5.  Reversal.  A  judgment  against  the 
prisoner  will  not  be  reversed  by  default,  but 
it  must  be  shown  to  the  court  that  there  was 
error  in  the  record  or  proceedings  of  the 
court  below.  Barron  v.  People,  1  Barb. 
186. 

6.  A  judgment  may  be  erroneous  in  part, 
and  valid  as  to  the  residue.  Taff  v.  State, 
39  Conn.  82;  Matter  of  Sweatman,  1  Cow. 
144. 

2.  Arrest  op  judgment. 

7.  Nature  and  object  of  motion.  A 
motion  in  arrest  is  a  proceeding  in  behalf  of 
a  prisoner  after  verdict  and  before  sentence, 
and  designed  to  stay  sentence  and  judgment 
for  error  appearing  on  the  face  of  the  record. 
It  is  grounded  upon  the  same  objections  as 
will  support  a  writ  of  error ;  and  no  defect 
in  evidence  or  improper  conduct  on  the  trial 
can  be  urged  at  this  stage  of  the  proceedings. 
When,  however,  judgment  is  once  given,  the 
writ  of  error  is  the  only  remedy  for  error  of 
record.  The  decision  of  the  court  upon  the 
motion  in  arrest,  if  erroneous,  is  not  of  itself 
ground  of  eiTor ;  for  the  same  objections  can 
be  raised  upon  the  wilt  as  upon  the  motion 
in  arrest,  and  are  not  waived  by  the  omission 
to  urge  them  before  judgment.  After  judg- 
ment, the  remedy  by  motion  in  arrest  is  gone, 
and  the  case  is  to  be  determined  by  the 
record,  as  though  no  such  motion  had  been 
made.     People  v.  Allen,  43  N.  Y.  28. 

8.  A  motion  in  arrest  of  judgment  is  not 
limited  to  the  indictment,  but  may  be  made 
upon  the  whole  record,  which  includes  the 
verdict.     People  v.  Bruno,  6  Parker,  657. 

9.  In  Kentucky,  the  only  ground  for  arrest 
of  judgment  under  the  statute  (Crim.  Code, 
§  270)  is  that  the  facts  stated  in  the  indict- 
ment do  not  constitute  a  public  oflense 
within  the  jurisdiction  of  the  court.  Wal- 
ston  V.  Com.  16  B.  Mon.  15. 

10.  "When  the  motion  may  be  made.  A 
motion  in  arrest  of  judgment  can  only  be 


entertained  for  matter  apparent  upon  an 
inspection  of  the  record.  State  v.  Bangor, 
38  Maine,  592  ;  State  v.  Carver,  49  lb.  588 ; 
Terrell  v.  State,  9  Ga.  58.  Whether  the 
facts  are  properly  alleged,  or  constitute  a 
crime  may  be  inquired  into  on  motion  in 
arrest  of  judgment.  State  v.  Hart,  34 
Maine,  36.  Such  a  motion  is  proper  after 
conviction  under  an  indictment  charging 
two  distinct  offenses.  State  v.  Howe,  1 
Rich.  360.  Where  the  record  did  not  show 
that  the  grand  jury  had  returned  the  indict- 
ment into  court,  it  was  held  that  the  judg- 
ment must  be  set  aside.  Rainey  v.  People, 
3  Gilman,  71. 

11.  It  is  too  late  after  verdict  to  interjjose 
a  motion  in  arrest  of  judgment  founded  upon 
proper  service  of  the  warrant.  Com.  v. 
Gregory,  7  Gray,  498. 

12.  Where  the  offense  is  barred.  In 
Alabama,  where  the  date  of  the  commission 
of  the  offense  was  left  blank,  and  it  did  not 
not  appear  whether  the  statute  of  limitations 
barred  the  prosecution  or  not,  judgment  was 
arrested.  State  v.  Beckwith,  1  Stewart,  318. 
But  in  New  York,  where  it  appeared  from 
the  indictment  that  the  offense  was  barred 
by  the  statute  of  limitations,  it  was  held  not 
a  ground  for  arresting  judgment.  People 
V.  Van  Santvoord,  9  Cow.  654.  The  contrary 
was  held  in  Georgia.  McLane  v.  State,  4 
Ga.  335. 

13.  When  the  motion  will  be  denied. 
The  improper  conduct  of  the  jury  after  they 
have  retired  to  deliberate  on  their  verdict 
is  not  a  ground  for  a  motion  in  arrest  of 
judgment.     Brister  v.  State,  26  Ala.  107. 

14.  The  neglect  of  the  clerk  to  enter  the 
verdict  on  the  minutes,  it  being  written  on 
the  indictment,  which  is  filed  in  the  proper 
office,  is  not  a  ground  for  arrest  of  judg- 
ment.    Hall  V.  State,  3  Kelly,  18. 

15.  Where  the  indictment  alleged  that 
goods  charged  to  have  been  stolen  were  the 
property  of  persons  whose  names  were  un- 
known, and  a  witness  who  appeared  before 
the  grand  jury  swore  that  he  owned  a  part 
of  the  goods,  it  was  held  to  be  no  cause  for 
arresting  judgment,  and  that  the  objection 
should  have  been  made  by  special  plea.  U.  S. 
V.  Stetson,  3  Woodb.  &  Minot,  164. 


364 


JUDGMENT.— JURISDICTION. 


Arrest  of  Judgment. 


Of  Courts  in  General. 


16.  Presumption  where  no  exception 
taken.  Where  no  exception  is  taken  to  the 
denial  of  a  motion  in  arrest  of  judgment, 
and  the  record  does  not  set  out  the  evidence 
on  Avliich  the  motion  was  made,  the  appel- 
late court  will  presume  that  the  motion  was 
properly  overruled.     Kobin  v.  State,  40  Ala. 

r-O 
(  i. 

See  New  trial  ;  Trial. 


SurisMctiou. 


1.  Op  courts  in  general. 

2.  With  reference  to  the  place  of  trial. 

3.  Jurisdiction  of  State  courts. 

4.  Jurisdiction  of  United  States  courts. 

1.  Of  courts  in  general. 

1.  Cannot  be  conferred  by  consent.    The 

court  cannot  acquire  jurisdiction  to  try  an 
offense  by  consent ;  nor  can  its  jurisdiction 
over  an  offense  be  changed  by  consent  so  as 
to  embrace  any  other  than  that  presented 
by  the  grand  jury.  People  v.  Campbell,  4 
Parker,  386. 

2.  Consent  by  the  defendant,  whether 
given  directly,  or  inferred  from  his  acts  or 
omissions,  cannot  confer  jurisdiction  upon 
the  court  to  try  the  defendant  for  any  other 
crime  than  such  as  is  charged  in  the  indict- 
ment as  found  and  returned  by  the  grand 
jury.     People  v.  Granice,  50  Cal.  447. 

3.  But  where  parties  upon  being  brought 
before  a  magistrate  on  a  charge  of  keeping 
a  disorderly  house,  elected  to  be  tried  by  a 
Court  of  Special  Sessions,  it  was  held  that 
they  thereby  waived  all  objection  to  the 
jurisdiction  of  the  court.  Gill  v.  People,  5 
N.  Y.  Supm.  N.  S.  308. 

4.  So,  where  the  defendant  having  been 
indicted  for  gambling,  and  pleaded  guilty, 
sought  to  reverse  the  judgment  because  no 
indictment  would  lie  at  the  time  for  the 
offense,  it  was  held  that  as  he  voluntarily 
submitted  himself  to  the  jurisdiction,  the 
judgment  would  not  be  reversed.  State  v. 
Coover,  49  Mo.  432. 

5.  Judge  de  facto.  Where  a  conviction 
was  had  before  a  person  who  was  appointed 
to  the  office  of  circuit  judge  by  the  governor 


without  authority,  it  was  held  that  he  was 
a  de  facto  judge,  so  as  to  render  his  acts  in 
tiyiug  and  sentencing  the  accused  valid. 
State  V.  Bloom,  17  Wis.  521. 

6.  Absence  of  judge.  Where  after  the 
jury  had  been  impaneled,  and  a  portion  of 
the  evidence  taken  on  a  trial  in  a  Court  of 
Sessions,  one  of  the  associate  justices  ab- 
sented himself,  and  a  justice  of  the  peace, 
by  the  direction  of  the  county  judge,  took 
his  place  and  the  trial  proceeded,  it  was 
held  error.     Blend  v.  People,  41  N.  Y.  604. 

7.  But  when  a  session  of  court  is  in  pro- 
gress with  a  quorum  in  actual  attendance, 
the  casual  and  temporary  absence  of  one  of 
the  judges  from  his  seat,  does  not  impair 
the  validity  of  the  proceedings.  Tuttle  v. 
People,  36  N.  Y.  431. 

8.  Where  the  record  of  conviction  shows 
that  one  judge  was  "  absent  through  dis- 
ability," it  is  a  statement  of  a  jurisdictional 
fact  which  if  untrue  might  have  been  con- 
troverted. For  it  is  well  settled  that  "no 
court  or  officer  can  acquire  jurisdiction  by 
the  mere  assertion  of  it,  or  by  falsely  alleg- 
ing the  existence  of  the  facts  on  which 
jurisdiction  depends."  People  v.  Davis,  61 
Barb.  456. 

9.  Judge  interested.  Where  the  interest 
of  the  judge  was  not  only  minute,  but 
contingent,  and  dependent  upon  the  decision 
of  another  tribunal,  it  was  held  that  it  did 
not  disqualify  him.  State  v.  Intoxicating 
Liquors,  54  Maine,  564. 

10.  Irregularity  in  issuing  precept. 
Where  a  statute  required  the  district  at- 
torney to  issue  a  precept  to  the  sheriff,  at 
least  twenty  days  before  the  holding  of  a 
Court  of  Oyer  and  Terminer,  it  was  held 
merely  directory,  and  that  an  omission  to 
obey  such  direction,  did  not  invalidate  judg- 
ments rendered  at  such  a  court;  but  that  if 
it  did,  the  only  way  in  which  advantage 
could  be  taken  of  the  want  of  such  a  precept 
would  be  by  a  motion  to  the  same  court  to 
quash  the  indictment  or  for  a  new  trial  or  in 
arrest  of  judgment.  People  v.  McCann,  3 
Parker,  272.  Such  an  omission  is  not  an 
irregularity  of  which  anybody  can  take 
advantage.  People  v.  Cummings,  lb.  343, 
per  Harris,  J. 


JURISDICTION. 


365 


Of  Courts  in  General. 


With  Reference  to  the  Place  of  Trial. 


11.  End  of  term.  On  a  trial  for  murder, 
the  jury  received  the  charge  on  Saturday, 
the  last  day  of  the  term,  and  did  not  agree 
on  their  verdict  until  the  following  Tuesday, 
the  court  being  meanwhile  adjourned  from 
day  to  day.  Held  that  the  jurisdiction  of 
the  court  did  not  end  with  the  term,  but 
continued  until  the  verdict  was  delivered 
and  the  sentence  passed.  Briceland  v.  Com. 
74  Penn.  St.  463 ;  s.  c.  2  Green's  Crim. 
Reps.  523. 

12.  How  determined.  When  the  question 
of  jurisdiction  depends  upon  the  construc- 
tion and  effect  of  charters,  grants  and 
records,  it  is  to  be  determined  by  the  court, 
which  may  refer  to  the  same,  to  the  histories 
of  deceased  authors,  and  to  the  census  taken 
under  the  laws  of  the  United  States;  and 
the  officer  who  took  the  census  may  testify 
as  to  the  place  of  residence  of  a  person 
when  the  record  does  not  show  it.  When 
the  State  authorities  have  claimed  and  ex- 
ercised jurisdiction  over  a  particular  place, 
the  State  courts  will  acquiesce  therein. 
State  V.  Wagner,  61  Maine,  178. 

13.  The  title  of  justices  of  sessions  to 
their  office  cannot  be  collaterally  inquired 
into,  but  only  by  a  direct  proceeding  against 
them  by  information  in  the  nature  of  a  quo 
warranto.     Nelson  v.  People,  5  Parker,  39. 

14.  On  the  trial  of  an  indictment  for 
obtaining  'property  under  false  pretenses, 
doubts  as  to  jurisdiction  may  be  solved  in 
favor  of  the  comi;,  unless  by  so  doing  some 
established  rule  of  law  will  be  violated. 
Smith  V.  People,  47  N.  Y.  330. 

15.  As  the  jurisdiction  of  justices  of  the 
peace  is  wholly  derived  from  the  statute,  it 
cannot  be  enlarged  by  presumption  or  imi- 
plication.     State  v.  Hall,  49  Maine,  412. 

IS.  In  pleading  the  judgments  or  pro- 
ceedings of  inferior  courts  of  special  and 
limited  jurisdiction,  and  of  magistrates  and 
officers  acting  under  a  statute  or  special  au- 
thority, a  general  averment  of  jurisdiction 
is  not  sufficient,  but  the  facts  upon  which  it 
depends  must  be  averred.  People  v.  Weston, 
4  Parker,  226. 

2.  With  keperence  to  tue  place  op 

TKIAL. 

17.    Designation    of    place    by    court. 


Where  the  power  to  fix  the  times  and  places 
of  holding  courts  is  committed  by  statute  to 
all  the  judges,  it  is  not  iu  the  power  of  a 
single  judge,  after  all  the  judges  have  united 
in  making  the  appointments,  to  adjourn  his 
court  to  be  held  at  a  different  place,  Nor- 
thrup  V.  People,  37  N.  Y.  203. 

18.  "Where  the  offense  is  committed  out 
of  the  State.  Where  an  offense  is  com- 
mitted in  one  State,  by  the  procuration  of  a 
resident  of  another  State,  who  is  not  per- 
sonally present,  such  non-resident  offender 
can  be  punished  by  the  courts  of  the  first 
mentioned  State,  if  jurisdiction  can  be  ob- 
tained of  his  person.  State  v.  Grady,  34 
Conn. 118;  contra,  State  v. Wyckoff,  2  Vroom, 
65. 

19.  An  indictment  which  alleges  that  the 
defendant  committed  a  felonious  assault  and 
battery  in  New  York,  and  that  the  person 
assaulted  went  to  New  Jersey  and  died  there 
of  his  wounds,  does  not  charge  a  crime  cog- 
nizable by  the  courts  of  New  Jersey.  State 
V.  Carter,  3  Dutch.  499, 

20.  But  where  a  person  sold  property  in 
Ohio  which  he  did  not  own,  falsely  and 
fraudulently  representing  that  he  was  the 
owner,  and  the  money  was  paid  and  bill  of 
sale  executed  in  Kentucky,  where  the  person 
defrauded  lived,  it  was  held  that  the  courts 
of  the  latter  State  had  jurisdiction  to  try  the 
indictment  for  obtaining  money  by  false 
pretenses.  Com.  v.  Van  Tuyl,  1  Mete. 
Ky.  1. 

21.  Where  on  the  trial  of  an  indictment 
for  unlawfully  solemnizing  a  marriage,  and  it 
appeared  that  the  ceremony  was  performed 
in  the  middle  of  the  Ohio  river,  it  was  held 
that  as  the  State  of  Ohio  had  never  by  its 
legislation  claimed  jurisdiction  over  the 
place  where  the  marriage  was  solemnized, 
the  offense  was  cognizable  by  the  laws  of 
Kentucky.    McFall  v.  Com.  2  Mete.  Ky.  394. 

22.  County.  Where  a  body  of  water  in 
which  the  tide  ebbs  and  flows  is  situated 
between  a  range  of  islands  and  the  main 
shore,  and  all  are  so  near  to  each  other  that 
a  person  with  the  ordinary  power  of  vision, 
can  see  with  the  naked  eye  from  point  to 
point,  on  every  part  of  the  connecting  line, 
what  is  doing  on  each,  it  is  included  within 


366 


JUKISDICTIOK 


With  Reference  to  the  Place  of  Trial. 


Jurisdiction  of  State  Courts. 


the  county,  according  to  the  rule  which  ex- 
tends the  jurisdiction  of  the  county  to  a  line 
running  from  one  to  the  other  of  the  fauces 
term.  People  v.  Wilson,  3  Parker,  199,  per 
Strong,  J. 

23.  Boundary  between  two  counties. 
In  New  York,  for  the  puqjoses  of  criminal 
jurisdiction,  an  offense  is  committed  on  the 
boundary  between  two  adjacent  counties,  if 
perpetrated  within  five  hundred  yards  of  the 
boundary  line.  People  v.  Davis,  36  N.  Y. 
77. 

24.  Where  the  offense  is  committed  on 
board  of  a  vessel.  Upon  the  high  seas 
every  vessel  is,  for  jurisdictional  purposes, 
a  part  of  the  territory  of  the  nation  of  its 
owners.  An  offense  committed  on  board  of 
such  vessel  is  an  oflfense  against  the  sover- 
eignty of  that  nation.  But  when  a  private 
ship  enters  a  foreign  jurisdiction,  it  becomes 
at  once,  with  all  on  board  (in  the  absence 
of  treaty  stipulations  to  the  contrary),  sub- 
ject to  the  municipal  laws  and  control  of  the 
country  it  visits.  People  v.  Tyler,  7  Mich. 
161 ;  s.  c.  8  lb.  320.     See  post,  sub.  52. 

25.  Where  A.  shot  B.  on  an  American 
vessel  on  the  St.  Clair  river,  within  the  limits 
of  Canada,  and  B.  died  of  the  wound  on 
land,  within  the  county  of  St.  Clair,  in  the 
State  of  Michigan,  it  was  held  that  the 
oflfense  was  not  cognizable  by  United  States 
law.     lb. 

26.  In  order  to  give  the  court  jurisdiction 
to  try  an  offense  committed  on  board  of  a 
canal  boat,  it  must  be  alleged  in  the  indict- 
ment that  the  crime  was  committed  on  board 
the  boat  or  vessel,  and  that  the  boat  or  ves- 
sel, on  that  trip  or  voyage,  had  passed 
through  some  part  of  the  county  in  which 
the  indictment  was  found;  and  also  to  prove 
both  facts  upon  the  trial.  Larkin  v.  People, 
61  Barb.  226. 

27.  A  person  was  indicted,  tried  and  con- 
victed in  the  Court  of  Sessions  of  Erie  coun- 
ty. New  York,  for  a  crime  charged  in  the 
indictment  to  have  been  committed  on  board 
a  canal  boat  which  was  navigating  the  Erie 
canal,  at  L.,  in  the  county  of  Herkimer,  It 
was  proved  on  the  trial  that  the  boat  had 
passed  from  Buffalo  on  the  canal  through  a 
part  of  Erie  county ;  but  there  was  no  evi- 


dence that  the  crime  charged  had  been  com- 
mitted at  the  place  named  in  the  county  of 
Herkimer,  on  board  the  canal  boat,  as 
charged.  Held  that  this  was  sufficient  to 
reverse  the  judgment  on  the  ground  of  want 
of  jurisdiction  upon  the  facts  proved.     lb. 

3.  Jurisdiction  op  State  courts. 

28.  In  case  of  unlawful  arrest  out  of 
State.  It  is  not  a  defense  to  an  indictment 
charging  the  parties  with  the  commission  of 
crime  in  Iowa,  that  they  were  wrongfully 
arrested  in  another  State  and  taken  to  Iowa. 
State  V.  Ross,  21  Iowa,  467. 

29.  Indians.  Indians  living  on  a  reserva- 
tion within  the  limits  of  a  State  must  be 
prosecuted  in  the  State  courts  for  oflfenses 
committed  by  them  away  from  the  reserva- 
tion and  within  the  State.  U.  S.  v.  Sa-Coo- 
Da-Cot,  1  Abb.  377. 

30.  Offenses  against  the  United  States. 
The  fact  that  the  defendant  will  be  liable  to 
prosecution  in  the  courts  of  the  United 
States,  will  not  exclude  the  jurisdiction  of 
the  State  courts.   State  v.  Moore,  6  Ind.  436. 

31.  The  New  York  Court  of  Oyer  and 
Terminer  has  jurisdiction  to  try  an  indict- 
ment for  murder  committed  within  the 
State  by  a  soldier  in  the  military  service  of 
the  United  States  in  time  of  war,  insurrec- 
tion, or  rebellion.  People  v.  Gardiner,  6 
Parker,  143. 

32.  The  act  of  Congress  of  March  3, 1863, 
which  declares  that  in  time  of  war,  insur- 
rection or  rebellion,  murder  and  other 
enumerated  oflfenses  shall  be  punishable  by 
the  sentence  of  a  general  court  martial  or 
military  commission,  when  committed  by 
persons  who  are  in  the  military  service  of 
the  United  States  and  subject  to  the  articles 
of  war,  although  constitutional,  does  not 
divest  the  State  courts  of  jurisdiction  in 
similar  cases.  lb. 

S3.  The  liability  of  a  party  to  be  punished 
under  the  United  States  bankrupt  act  (of 
1867,  §  44),  for  obtaining  goods  on  credit, 
with  intent  to  defraud,  within  three  months 
before  the  commencement  of  proceedings  in 
bankruptcy,  does  not  take  away  the  juris- 
diction of  the  courts  of  Massachusetts  under 
an  indictment  for  conspiring  to  obtain  the 


JURISDICTION. 


367 


Jurisdiction  of  State  Courts. 


goods  by  false  pretenses.      Com.  v.  Walker, 
108  Mass.  309. 

34.  But  the  State  tribunals  have  no 
power  to  punish  crimes  against  the  laws  of 
the  United  States  as  such.  The  same  act  may, 
in  some  instances,  be  an  offense  against  the 
laws  of  both,  and  it  is  only  as  an  offense 
against  the  State  laws  that  it  can  be  pun- 
ished by  the  State.  People  v.  Kelly,  38 
Cal.  145. 

35.  Congress  has  no  power  to  give  the 
courts  of  the  States  criminal  jurisdiction  in 
respect  to  offenses  against  Federal  laws,  and 
a  State  Legislature  has  no  power  to  con- 
stitute such  offenses  cognizable  by  the  courts 
of  the  State.    State  v.  Tuller,  34  Conn.  280. 

36.  The  State  tribunals  have  not  jurisdic- 
tion to  grant  relief  in  case  of  an  unlawful 
imprisonment  by  an  oflScer  of  the  United 
States  under  color  of  the  authority  of  the 
United  States.  State  v.  Zulich,  5  Dutch. 
409. 

37.  It  is  incompetent  for  a  State  court  or 
judge,  by  a  writ  of  habeas  corpus,  or  other- 
wise, to  take  a  party  out  of  the  hands  of  an 
officer  held  by  him  under  the  authority  of 
the  United  States,  whether  retained  by  ju- 
dicial process  in  the  strict  sense  of  that 
term,  or  simply  by  authority  of  law.  The 
remedy  is  by  application  to  a  judge  of  the 
United  States  courts.  Matter  of  Hopson, 
40  Barb.  34. 

38.  New  York  Supreme  Court.  The  Su- 
preme Court  of  'New  York  cannot  review 
the  action  of  the  Oyer  and  Terminer  in 
granting  or  refusing  a  new  trial  on  the 
merits,  or  on  the  ground  of  misconduct  of 
the  jury,  but  are  confined  to  errors  appear- 
ing on  the  record  or  in  the  bill  of  exceptions. 
People  V.  Hartung,  4  Parker,  319. 

39.  New  York  Oyer  and  Terminer.  In 
New  York,  the  Oyer  and  Terminer  is  a  per- 
manent and  continuous  court  in  each  of  the 
counties  of  the  State,  and  not  a  distinct  and 
independent  court,  the  existence  of  which 
commences  with  the  first  and  terminates 
with  the  last  day  of  the  session.  Quimbo 
Appo  V.  People,  20  N.  Y.  531. 

40.  In  New  York,  a  judge  of  the  Supreme 
Court,  who  has  been  selected  under  the  Con- 
stitution   and  laws  to  be  a   judge    of   the 


Court  of  Appeals,  is  not  thereby  deprived 
of  authority  to  preside  in  a  court  of  Oyer 
and  Terminer.  McCarron  v.  People,  13  N.Y. 
74. 

41.  Where  the  Court  of  Sessions,  at  which 
an  indictment  is  found,  sends  it  to  the  next 
court  of  Oyer  and  Terminer  for  trial,  the 
indictment  may  be  tried  at  any  term  of  the 
court  subsequent  to  the  making  of  the 
order.    Real  v.  People,  43  N.  Y.  270. 

42.  The  New  York  Courts  of  Oyer  and 
Terminer  have  no  authority  to  grant  a  new 
trial  upon  the  merits  after  conviction  in  a 
capital  case.  Quimbo  Appo  v.  People,  20 
N.  Y.  531. 

43.  But  although  in  New  York  these 
courts  have  no  jurisdiction  to  grant  a  new 
trial  upon  the  merits,  yet  they  may  ent,ertain 
a  motion  to  set  aside  the  verdict  on  the 
ground  of  the  want  of  indifference  of  a 
juror.     Willis  v.  People,  32  N.  Y.  715. 

44.  New  York  Court  of  Sessions.  The 
act  of  New  York  of  1870,  which  provides 
for  the  organization  of  the  Court  of  Sessions 
in  the  city  and  county  of  New  York,  designs 
that  generally  the  court  shall  be  held  by  two 
justices  jointly;  and  it  provides  for  filling  a 
vacancy.  But  it  also  contemplates  that, 
though  the  ofiBce  be  not  vacant,  it  may  hajJ- 
pen  that  one  of  the  justices  will  be  disabled 
from  sitting,  and  in  such  cases  the  other  is 
authorized  to  hold  alone  while  such  dis- 
ability continues.  People  v.  Davis,  61  Barb. 
456. 

45.  As  the  statute  does  not  declare  any 
particular  thing  as  being  the  disability  to 
which  it  refers,  anything  that  disables  the 
justice  from  holding  the  court  will  be 
embraced  by  the  term.  Sickness,  absence 
from  the  city,  inability  to  reach  the  court- 
house though  in  the  city,  would  disable  the 
judge  from  holding  the  court;  and  if  not 
present  he  would  be  "  disabled  "  from  act- 
ing, within  the  meaning  of  the  statute.  lb. 
Ingraham,  P.  J.,  dissenting. 

46.  In  New  York,  where  neither  of  the 
two  designated  justices  of  the  peace  attend 
the  Court  of  Sessions,  the  county  judge  may 
call  upon  the  bench  two  other  justices,  and 
afterward  the  two  first  named  justices  may 
appear    and    take  their  seats.     Cyphers  v. 


368 


JURISDICTION.— JURY 


Jurisdiction  of  State  Courts.    Jurisdiction  of  U.  S.  Courts.  Right  to  Trial  by. 


People,  31  N.  Y.  373;  affi'g  s.   c.  5  Parker, 
666. 

47.  In  New  York,  the  right  to  appeal  or 
to  demand  a  trial  at  the  General  Sessions  ig 
gone  when  the  accused  has  demanded  in 
writing  a  trial  at  the  Special  Sessions.  Peo- 
ple V.  Rilej',  5  Parker,  401. 

48.  Supreme  Court  of  Louisiana.  In 
Louisiana,  the  appellate  jurisdiction  of  the 
Supreme  Court  in  criminal  cases  is  confined 
to  questions  of  law.  State  v.  Peterson,  2 
La.  An.  221 ;  State  v.  Muldroon,  9  lb.  24. 
And  the  jurisdiction  does  not  attach  until 
after  sentence  or  judgment.  State  v.  May 
lb.  69;  State  v.  Pratt,  lb.  157;  State  v. 
Ross,  18  lb.  840;  State  v.  Bruington,  22 
lb.  9. 

4.  JcmsDicTioN  OP  United  States  courts. 

49.  Of  offenses  in  general.  The  au- 
thority of  Congress  to  provide  for  the  pun- 
ishment of  crime  is  limited  to  such  subjects 
and  circumstances  as  are  peculiar  to  the 
Federal  government.  It  may  punish  mur- 
der when  it  is  committed  under  certain  cir- 
cumstances, or  in  certain  places ;  as  when 
the  murdered  person  is  its  olBcer,  and  at  the 
time  of  the  homicide  was  in  the  discharge  of 
his  official  duties;  or  when  the  homicide 
was  committed  in  some  place  over  which  the 
national  government  had  sole  and  exclusive 
jurisdiction.  U.  S.  v.  Ward,  1  Wool.  C.  C. 
17. 

50.  The  act  of  Congress  punishing  murder 
does  not  embrace  an  accessory  before  the 
fact  to  murder.  U.  S.  v.  Ramsay,  Hemp. 
481.  But  see  U.  S.  v.  Douglass,  2  Blatchf. 
207.  Robbery  committed  on  land  is  not 
punishable  by  any  act  of  Congress.  U.  S. 
V.  Terrell,  Hemp.  411. 

51.  To  give  the  court  jurisdiction  within 
the  6th  amendment  to  the  Constitution  of 
the  United  States,  the  district  in  which  the 
trial  is  had  must  have  been  ascertained  by 
law  before  the  commission  of  the  crime,  and 
not  merely  before  the  trial.  U.  S.  v.  Maxon, 
5  Blatchf.  360. 

52.  A  person  having  committed  an  assault 
with  a  dangerous  weapon  on  the  high  seas, 
was  put  in  irons,  and  so  kept,  until  the  ves- 
sel arrived  at  the  lower  quarantine  anchor- 


age in  New  York  harbor,  in  the  eastern  dis- 
trict of  that  State,  where  she  lay  at  anchor 
five  days.  The  offender  was  then  delivered 
to  the  United  States  marshal  for  the  southern 
district  of  New  York,  to  whom  a  warrant 
for  the  offender's  arrest  was  afterward  duly 
issued.  Held  that  the  Circuit  Court  of  the 
United  States  for  the  southern  district  of 
New  York  had  jurisdiction  of  the  case  under 
the  act  of  Congress  of  April  30th,  1790, 
which  provides  that  such  an  ofiiense  shall  be 
tried  in  the  district  where  the  offender  is  ap- 
prehended, or  into  which  he  may  first  be 
brought.  U.  S.  v.  Arwo,  19  Wall.  486 ;  s.  c. 
2  Green's  Crim.  Reps.  134. 

53.  Offenses  against  State  laws.  Con- 
gress has  no  power  to  confer  upon  the  United 
States  courts  jurisdiction  to  try  indictments 
found  in  the  State  courts.  People  v.  Mur- 
ray, 5  Parker,  577. 

54.  The  necessity  for  martial  law  must  be 
shown  affirmatively  by  the  party  assuming 
to  exercise  it.  Where  a  farmer  of  South 
Carolina,  some  eighty  years  of  age,  who  had 
never  been  engaged  in  military  service,  was 
arrested  and  tried  before  a  military  com- 
mission, convicted  of  murder,  and  sen- 
tenced to  the  jjenitentiary  for  life,  seven 
months  after  the  termination  of  the  Rebel- 
lion, on  a  charge  of  killing  a  negro  boy,  and, 
for  aught  that  appeared,  the  courts  of  South 
Carolina  were,  at  the  date  of  the  trial,  in  the 
full  exercise  of  their  judicial  functions,  the 
prisoner  was  discharged  on  habeas  corpus. 
Matter  of  James  Eagan,  6  Parker,  675. 

55.  Two  indictments  were  found  against 
a  person  who  held  a  license  to  sell  liquors 
under  the  internal  revenue  laws  of  the 
United  States,  one  charging  him  with  being 
a  common  seller  of  intoxicating  liquors,  and 
the  other  with  keeping  a  nuisance  by  reason 
of  the  illegal  keeping  and  sale  of  intoxicat- 
ing liquor.  Held  that  they  could  not  be  re- 
moved into  the  Circuit  Court  of  the  United 
States  under  U.  S.  Stat,  of  1833,  ch.  57,  §  3,  or 
of  1864,  ch.  173,  §  50.  State  v.  Elder,  54 
Maine,  381. 


3urn. 

1.  Right  to  trial  by.     In  Alabama  the 


JURY. 


3G9 


Who  may  Serve  on. 

constitutional  guaranty  of  a  trial  by  jury  "  in 
all  prosecutions  by  indictment  or  infoAiia- 
tion "  (art.  1,  §  10),  applies  to  no  ofteuses 
created  by  statute  since  the  adoption  of  the 
Constitution,  except  in  the  specified  cases; 
but  the  Legislature  can  make  such  offenses 
triable  before  the  justice  of  the  peace  with- 
out indictment.  The  provision  contained  in 
the  28th  section  of  the  same  article,  de- 
claring that  "  the  trial  by  jury  shall  remain 
inviolate,"  does  not  extend  the  right  of  trial 
by  jury  to  cases  unknown  at  the  time  of  the 
adoption  of  the  Constitution,  either  to  the 
common  or  statute  law.  Tims  v.  State,  26 
Ala.  165. 

2.  The  statute  of  New  York  having  made 
intoxication  in  a  public  place  a  crime,  the 
accused  is  entitled  to  a  trial  by  jury.  Hill 
V.  People,  20  N.  Y.  363. 

3.  Defendant  cannot  waive.  It  is  not  in 
the  power  of  the  prisoner,  on  a  trial  for 
felony,  to  waive  a  trial  by  jury.  Williams 
V.  State,  12  Ohio,  N.  S.  622. 

4.  Who  may  serve  on.  Members  of  a 
league,  the  object  of  which  is  to  prosecute 
for  violations  of  the  liquor  law,  and  who 
mutually  contribute  money  to  defray  the  ex- 
penses of  such  prosecutions,  are  not  incom- 
petent to  sit  as  jurors  on  the  trial  of  such  a 
prosecution,  when,  for  aught  that  is  shown, 
each  of  them  may  have  paid,  before  the 
prosecution,  the  full  sum  which  he  had  sub- 
scribed.    Com.  v.  O'Neil,  6  Gray,  343. 

5.  Jurors  who  have  previously,  and  at  the 
same  term  of  the  court,  convicted  the  de- 
fendant of  a  crime,  are  not  thereby  dis- 
qualified for  sitting  as  jurors  for  the  trial  of 
another  indictment  against  him  for  a  similar 
offense.     Com.  v.  Hill,  4  Allen,  691. 

6.  A  person  is  not  disqualified  from  serv- 
ing as  a  juror  on  a  trial  for  murder  by  the 
fact  that  he  officiated  as  clergyman  at  the 
funeral  of  the  deceased,'  and  preached  his 
funeral  sermon.  State  v.  Stokely,  16  Minn. 
282. 

7.  The  fact  that  a  juror  married  the  widow 
of  the  prosecutor's  uncle,  does  not  render 
him  incompetent  to  sit.  O'Neal  v.  State,  47 
Ga.  229. 

8.  It  is  not  a  good  ol>jection  to  an  indict- 
ment for  an  offense  to  which  the  law  an- 

24 


Persons  Incompetent  to  Serve  as  Jurors. 

nexes  a  fine  for  the  use  of  the  town,  that  the 
foreman  of  the  grand  jury  who  found  the 
indictment  is  a  taxable  inhabitant  of  such 
town.     Com.  v.  Ryan,  5  Mass.  90. 

9.  M.,  several  years  prior  to  1866,  was  a 
resident  of,  and  in  business  in,  Ohio.  In 
that  year  he  rented  a  house  in  Kentucky  and 
removed  his  family  there,  but  continued  his 
business  in  Ohio,  giving  his  personal  atten- 
tion to  it  every  day.  He  had  no  intention 
of  becoming  a  citizen  of  Kentuckj-,  but 
during  his  sojourn  there  regarded  himself  as- 
a  citizen  of  Ohio,  always  voting  there  as- 
such,  without  objection  or  challenge,  and 
never  voting,  or  attempting  to  vote,  in  Ken- 
tucky. Having  returned  to  Ohio,  it  was 
held  that  he  had  not  forfeited  any  of  his 
rights  of  citizenship  in  that  State,  and  that 
he  was  qualified  to  serve  on  the  jury  in  a 
court  of  the  United  States  sitting  in  Ohio. 
U.  S.  v.  Thorpe,  2  Bond,  340. 

10.  Persons  incompetent  to  serve  as 
jurors.  The  mem1)ers  of  an  association  com- 
bining for  the  purpose  of  enforcing  or  with- 
standing the  execution  of  a  particular  law, 
and  binding  themselves  to  contribute  money 
therefor,  are  not  competent  to  sit  as  jurors 
on  a  trial  for  the  violation  of  that  law.  Com. 
V.  Livermore,  4  Gray,  18. 

11.  On  the  trial  of  an  indictment  for 
secreting  records,  it  was  held  that  a  juror 
belonging  to  the  town  whose  book  of 
records  was  alleged  to  have  been  secreted 
by  the  accused,  was  properly  excluded  from 
the  panel.  State  v.  Williams,  30  Maine,. 
484. 

12.  In  Connecticut,  where  it  was  discov- 
ered after  verdict  that  one  of  the  jurors  was 
not  a  freeholder,  it  was  held  a  sufiicieut 
ground  for  arrest  of  judgment.  State  v. 
Babcock,  1  Conn.  401. 

13.  Where  one  of  the  jurors  was  on  the 
grand  jury  that  found  the  indictment,  it  was 
held  that  the  defendant  might  challenge 
him,  but  that  he  could  not  on  tiiat  ground, 
move  for  a  new  trial,  after  a  verdict  of  guilty, 
if  he  knew  of  the  objection  when  the  jury- 
was  impaneled.  Barlow  v.  State,  2  Blackf. 
114. 

14.  Whether  if  a  juror  should  express  a 
determination  not  to  follow  the  instructions 


JURY 


Venire. 

of  the  court  in  matters  of  law,  if  they  should 
differ  from  his  own  opinion,  he  would  be  in- 
competent— query.  Com.  v.  Abbott,  13  Mete. 
130. 

15.  Exemption  from  service  on.  In  In- 
diana, under  the  statute  of  1824,  persons 
above  sixty  years  of  age  are  exempt  from 
serving  on  juries.  But  the  prisoner  cannot 
object  to  them  on  that  ground.  State  v. 
Miller,  2  Blackf.  35. 

16.  Struck  jury.  There  may  be  a  struck 
jury  in  a  criminal  as  well  as  in  a  civil  case. 
Sutton  v.  State,  9  Ohio,  133. 

17.  Jury  de  medietate  linguae.  In  New 
York,  where  the  prisoner,  on  his  arraign- 
ment, suggests  that  he  is  an  alien,  and 
claims  the  privilege  of  a  trial  by  a  jury  de 
medietate  lingua^  the  court  of  Oyer  and  Ter- 
miner may  direct  such  a  jury  to  be  sum- 
moned forthwith.  People  v.  McLean,  2 
Johns.  381. 

18.  Venire.  In  New  York,  a  venire  with- 
out the  seal  of  the  court  was  held  void. 
People  V.  McKay,  18  Johns.  212.  In  Ala- 
bama, a  venire  for  summoning  a  grand  jury 
was  held  sufficient  without  the  seal  of  the 
clerk  issuing  it.  Maher  v.  State,  1  Porter, 
265. 

19.  In  Mississippi,  in  a  capital  case,  the 
prisoner  has  a  right  to  a  jury  summoned  by 
a  special  venire,  and  to  be  furnished  with  a 
list  of  the  jurors.  Boles  v.  State,  24  Miss. 
445.  The  other  cases  in  which  a  special 
venire  may  be  issued,  is  where  there  are 
none  of  the  regular  venire  in  attendance 
ujjon  the  court.     Baker  v.  State,  23  lb.  243. 

20.  If  a  jury  cannot  be  formed  from  the 
original  panel,  nor  from  the  bystanders,  the 
court  may  award  a  venire  facias  commanding 
the  sheriff  to  summon  an  additional  number 
of  jurors  to  attend  the  court  then  in  session. 
Gibson  v.  Com.  2  Va.  Cas.  111. 

21.  Summoning.  A  grand  jury  and  petit 
jury  should  be  separately  summoned,  and 
not  included  in  the  same  panel.  Forsythe 
V.  State,  6  Ohio,  19.  In  Georgia,  where  the 
grand  jury  and  petit  jury  were  summoned 
by  the  sheriff,  and  returned  without  a  venire, 
it  was  held  not  a  ground  for  arrest  of  judg- 
ment.    Bird  V.  State,  14  Ga.  43. 

22.  Where  it  appeared  that  certain  of  the 


Summoning. 

jurors  had  not  been  summoned  by  any  legal 
authferity,  and  that  their  names  had  been 
put  upon  the  list  of  jurors  by  the  clerk  of 
tlie  court,  at  the  request  of  those  persons 
themselves,  without  any  order  of  the  court 
being  entered  requiring  such  jurors  to  serve, 
it  was  held  good  ground  of  challenge  to  the 
array.     McCloskey  v.  People,  5  Parker,  308. 

23.  In  Massachusetts,  a  juror  was  put  on 
the  panel,  upon  his  testifying  that  he  had 
l)een  summoned,  the  officer  having  omitted 
his  name  in  the  return.  Case  of  Patterson, 
0  Mass.  486. 

24.  On  a  trial  for  murder,  the  panel 
being  exhausted,  the  court  directed  three 
hundred  additional  jurors  to  be  summoned. 
Held  that  it  was  not  error  in  the  court  to 
deny  the  application  of  the  prisoner's 
counsel  for  two  or  three  days'  delay,  to 
enable  them  to  examine  such  list  of  addi- 
tional jurors.  Colt  v.  People,  1  Parker, 
611 ;  s.  c.  3  Hill,  432. 

25.  Officer's  return.  Tlie  return  of  the 
precept,  directed  to  the  sheriff',  commanding 
him  to  summon  a  jury,  need  not  show  that 
the  jury  have  been  di'awn  according  to  law; 
but  it  will  be  presumed  that  such  is  the 
case,  until  the  contrary  is  shown.  Com.  v. 
Green,  1  Ashm.  289. 

26.  Where  a  venire  facias  directed  the 
officer  to  cause  a  juror  to  be  drawn  not 
more  than  twenty  nor  less  than  six  days 
before  the  sitting  of  the  court,  and  he  re- 
turned that  the  juror  was  drawn  as  above 
directed,  but  without  date,  the  return  was 
held  sufficient.  Fellows'  Case,  5  Maine, 
333. 

27.  Objection  to  venire.  An  objection 
to  the  issuance  or  direction  of  the  venire  to 
summon  the  petit  jury  must  be  made  before 
the  jurors  are  sworn.  Brown  v.  State,  7 
Eng.  623 ;  Samuels  v.  State,  3  Mo.  50 ;  State 
V.  Cole,  9  Humph.  626 ;  People  v.  Robinson, 
2  Parker,  235. 

28.  A  venire  will  not  be  quashed  on  the 
ground  that  it  states  only  the  initial  letter 
instead  of  the  full  christian  names  of  several 
of  the  jurors,  when  it  appears  that  the  pris- 
oner was  not  deceived  or  misled  by  the  list 
furnished  him,  or  that  the  jurors  were  not 
as  well  known  by  their  initials  as  by  their 


JURY.— KIDNAPPING. 


371 


Drawing  Jury. 


Nature. 


full  christian  names,  nor  on  the  ground  tliat 
the  venire  does  not  state  that  the  jurors 
"were  summoned  to  try  his  case,"  when  it 
is  shown  that  it  was  entitled  "  a  list  of  the 
jury  summoned  for  A."  (stating  the  pris- 
oner's surname),  and  that  the  sheriff  read 
the  list  over  to  him,  and  at  the  same  time 
told  him  that  it  was  the  list  of  the  jury 
summoned  to  try  him  for  the  homicide  with 
which  he  was  charged.  Aikin  v.  State,  35 
Ala.  363. 

29.  When  the  writs  of  venire  by  wliich  the 
grand  and  petit  jurors  were  summoned  are 
void,  the  judgment  will  be  arrested.  State 
^r.  Williams,  1  Rich.  188. 

30.  Drawing  jury.  On  the  23d  of  Sep- 
tember the  court,  at  a  stated  term  of  the  Oyer 
and  Terminer,  made  an  order  adjourning 
the  term  until  the  10th  of  November,  and 
also  directing  the  sheriff  to  summon  "  for 
the  adjourned  term  of  the  court  sixty  ad- 
ditional jurors,  to  be  drawn  by  the  clerk  in 
the  usual  way."  The  sixty  jurors  were 
accordingly  summoned,  and  a  jury  to  try  an 
indictment  for  murder  was  drawn  from 
them  and  from  the  panel  of  the  September 
term  promiscuously.  No  objection  was  made 
to  the  regularity  of  the  proceedings  until 
after  the  prisoner  was  convicted.  It  was 
held  that  although  the  order  in  question 
was  informal,  it  was  not  a  ground  for  setting 
aside  the  verdict.  People  v.  Cummings,  3 
Parker,  843.  In  Pennsylvania,  where  after 
the  jurors'  names  were  selected  and  placed 
in  the  wheel,  the  wheel  was  sealed  with  but 
one  seal  instead  of  three  seals  as  required 
by  the  statute,  it  was  held  ground  for 
quashing  the  indictment.  Brown  v.  Com. 
73  Penn.  St.  321 ;  s.  c.  2  Green's  Crim.  Reps. 
511. 

31.  Under  the  act  of  Congress  of  July 
20th,  1840,  there  need  only  be  substantial 
conformity,  and  that  only  as  far  as  is  prac- 
ticable, to  the  mode  of  selecting  and  drawing 
jurors  prescribed  by  the  State  laws.  U.  S. 
V.  Tallman,  10  Blatchf.  21 ;  s.  c.  1  Green's 
Crim.  Reps.  418. 

32.  In  New  York,  where  part  of  the  jurors 
had  been  drawn  on  a  trial  for  murder  before 
the  court  had  information  that  the  clerk  had 
omitted  in  1863  to  take  the  names  out  of  the 


box  and  deposit  therein  the  names  on  the 
list  of  jurors  returned  and  filed  for  the  town 
in  that  year,  it  was  held  proper  for  the  clerk, 
by  direction  of  the  court  on  the  trial,  to 
make  the  proper  change  of  the  names  of  the 
jurors  in  the  box  that  the  clerk  should  have 
made  in  1863.  Gardiner  v.  People,  6  Parker, 
155. 

33.  Talesmen.  Persons  were  summoned 
as  talesmen  who  were  not  in  the  court 
house.  Held  that  the  calling  them  into 
court  was  a  sufficient  summoning,  since 
when  they  came  in  they  were  bystanders. 
State  V.  Lamon,  3  Hawks,  175. 

34.  In  Indiana,  if  there  be  no  jurors  on  the 
return  of  the  venire^  a  new  one  must  issue. 
But  if  any  number,  however  small,  appear, 
and  they  be  set  aside  on  challenge,  talesmen 
may  be  sworn.     Fuller  v.  State,  1  Blackf.  63. 

See  Gkand  jury;  Verdict.  For  chal- 
lenges and  other  matters  relating  to  jurors^  see 
Trial. 


Kibuapping. 


1.  Nature.  Kidnapping  is  at  common 
law  an  aggravated  kind  of  false  imprison- 
ment.    Click  v.  State,  3  Texas,  282. 

2.  What  constitutes.  Procuring  the  in- 
toxication of  a  sailor  with  the  design  of 
getting  him  on  board  ship  in  that  condition 
without  his  consent,  and  thus  taking  him 
on  board,  is  kidnapping  within  the  statute 
of  New  York;  and  it  is  immaterial  whether 
the  prisoner  did  the  acts  in  person  or  caused 
or  advised  their  being  done.  And  it  was 
held  that  if  the  intent  and  expectation  were 
that  the  sailor  would  be  carried  in  the  ship 
against  his  will  to  a  foreign  port,  the  offense 
was  complete,  although  the  destination  of 
the  ship  was  not  in  fact  any  place  out  of  the 
State.     Hadden  v.  People,  25  N.  Y.  373. 

3.  Indictment.  An  indictment  for  kid- 
napping must  charge  an  assault  and  the 
carrying  away  of  the  party  injured  from  his 
own  country  into  another,  unlawfully  and 
against  his  consent,  and  set  forth  the  facts 
and  circumstances  constituting  the  offense. 
Click  V.  State,  supra. 

4.  Evidence.     On  a  trial  for  kidnapping 


o/li 


KIDNAPPING.— LAKCENY. 


Evidence. 


The  Taking. 


a  sailor,  it  was  held  competent  to  prove  the 
destination  of  the  vessel  by  parol  evidence, 
notwithstanding  there  was  written  evidence 
on  the  subject  in  the  custom  house.  Had- 
den  V.  People,  supra. 

5.  In  order  to  sustain  a  charge  of  forcibly 
confining  and  detaining  negroes  on  board  of 
a  vessel  with  intent  to  make  them  slaves, 
within  the  meaning  of  the  act  of  Congress 
of  May  15th,  1820,  §  5  (3  U.  S.  Stats,  at 
Large,  601),  it  is  not  necessary  to  prove  the 
employment  of  physical  or  manual  force. 
It  is  sufficient  that  the  negroes  were  under 
moral  restraint  and  fear,  and  any  person 
participating  in  that  sort  of  detention  would 
be  a  principal  in  the  offense.  U.  S.  v.  Gor- 
don, 5  Blatchf.  18;  U.  S.  v.  Westervelt,  lb. 
30. 

6.  The  general  reputation  of  a  kidnapper 
may  be  proved,  to  show  the  intent  with 
which  the  defendant  aided  him.  State  v. 
Harten,  4  Hairing.  582. 


Cavccni). 


1.  The   taking. 

2.  The  intent. 

3.  Subjects  of  laeceny. 

4.  AVarrant. 

5.  Place  of  indictment. 

6.  Indictment. 

7.  Evidence. 

(a)  Proof  of  taTcing, 

(I)  Evidence  as  to<^roperty  taken. 

if)  Proof  of  place  of  offense. 

{d)  Proof  of  ownership  of  property. 

{e)  Proof  of  value  of  property. 

(f)  Presumptive  evidence. 

(g)  Admissions,  declarations  and  confes- 

sions, 
(h)   Guilty  knowledge  and  intent, 
(i)  Former  conviction. 

8.  Charge   op   court. 

9.  Verdict. 
10.  Sentence. 

1.  The  taking, 

1.  Must  be  against  will  of  owner.     To 

constitute  larceny,  the  property  must  have 
beet,  taken  against  the  will  of  the  owner. 


and  it  must  have  been  either  in  his  actual 
or  constructive  possession.  Hite  v.  State,  9 
Yerg.  198,  357.  Violence  is  not  necessary. 
Fraud  may  supply  the  place  of  force.  Com. 
V.  James,  1  Pick.  375. 

2.  Must  be  removal.  There  must  have 
been  a  taking  or  severance  of  the  goods 
from  the  possession  of  the  owner.  If  a  per- 
son entice  a  horse  or  other  animal,  by  plac- 
ing food  in  such  a  situation  as  to  operate  on 
its  volition,  and  assumes  dominion  over  it, 
and  has  it  once  under  his  control,  the  tak- 
ing is  complete.  State  v.  Wisdom,  8  Por- 
ter, 511.  But  the  mere  upsetting  of  a  barrel 
of  turpentine  with  a  felonious  intent,  is  not 
sufficient.  State  v.  Jones,  65  N.  0.  395. 
And  the  merely  looking  at  a  dead  hog  lying 
in  the  comer  of  a  fence  covered  with  leaves, 
and  running  away  on  being  hailed,  is  not 
sufficient  to  sustain  a  conviction  of  larceny. 
State  V.  Wilkerson,  72  N.  C.  376. 

3.  Slight  removal  sufficient.  The  thief 
need  only  have  had  a  momentary  possession. 
State  V.  Wilscm,  Coxe,  439 ;  State  v.  Wis- 
dom, 8  Porter,  511 ;  State  v.  Jackson,  65  N. 
C.  305.  The  least  removal  of  an  article 
with  intent  to  steal  it,  if  the  taker  thereby 
for  an  instant  obtain  the  entire  and  absolute 
possession  of  it,  is  a  sufficient  asportation  to 
constitute  larceny,  though  the  property  be 
not  removed  from  the  premises  of  the  owner, 
nor  retained  in  the  possession  of  the  taker; 
and  a  return  of  the  article,  will  not  purge 
the  offense,  though  the  possession  be  retained 
but  for  a  moment.  Therefore  on  a  trial  for 
stealing  money  from  a  drawer,  it  was  held 
not  erroneous  to  charge  that  if  the  defend- 
ant took  the  money  into  his  hand,  and  lifted 
it  from  the  place  where  the  owner  had 
placed  it,  so  as  to  sever  it  from  the  spot, 
with  the  intention  of  stealing  it,  he  was 
guilty  of  larceny,  although  he  dropped  it 
upon  being  discovered,  and  never  had  it 
out  of  the  drawer.  Eckels  v.  State,  20 
Ohio,  N.  S.  508. 

4.  W^here  it  was  proved  that  the  prisoner 
thrust  his  hand  into  the  complainant's 
pocket,  seized  a  pocket-book  with  money 
and  securities  in  it,  and  lifted  it  about 
three  inches  from  the  bottom  of  the  pocket 
when  he  was  discovered  by  the  complainant,. 


LARCENY. 


373 


The  Taking. 


it  was  held  that  he  was  properly  convicted 
of  larceny.  Harrison  v.  People,  50  N.  Y. 
518. 

5.  On  the  trial  of  an  indictment  for  an 
attempt  to  commit  larceny  of  a  pocket-book 
form  the  person,  it  was  proved  that  the  pris- 
oner having  put  her  hand  into  the  pocket  of 
a  lady,  was  seized  by  the  wrist  while  her 
hand  was  in  the  pocket,  and  that  in  the 
struggle,  the  dress  and  pocket  were  torn, 
and  the  pocket-book  dropped  on  the  ground. 
The  following  instruction  was  held  correct : 
That  if  the  jury  were  satisfied  beyond  a 
reasonable  doubt,  that  the  hand  of  the  de- 
fendant had  been  thrust  into  the  woman's 
pocket  with  a  felonious  intent,  and  was  ar- 
rested in  the  pocket  while  attempting  to 
execute  that  intent,  and  before  her  hand 
reached  or  disturbed  the  pocket-book,  they 
might  convict;  but  not  if  the  defendant's 
hand  had  reached  or  seized  the  pocket-book 
before  it  was  arrested,  and  she  altered  the 
position  of  the  pocket-book.  Com.  v. 
Luckis,  99  Mass.  431. 

6.  On  the  trial  of  an  indictment  for  horse 
stealing,  the  following  instruction  was  held 
proper:  "If  the  defendant  took,  or  led  the 
horse  away  any  distance,  with  a  felonious  in- 
tent, the  asportation  is  complete,  as  much 
so,  as  if  the  party  had  succeeded  in  remov- 
ing the  horse  away  altogether;  and  it 
makes  no  difference  that  the  horse  had  not 
been  removed  from  the  inclosure  or  lot." 
State  V.  Gazell,  30  Mo.  92.  In  Texas,  aspor- 
tation is  not  essential  to  constitute  larceny. 
Prim  V.  State,  32  Texas,  157. 

7.  Delivery  of  property  by  owner.  If 
the  owner  of  goods  alleged  to  have  been 
stolen,  parts  with  the  possession  and  title 
to  the  thief,  neither  the  taking  nor  the  con- 
version is  felonious.  An  officer  having 
levied  upon  property  belonging  to  the  judg- 
ment debtor,  delivered  it  to  the  judgment 
creditor,  and  shortly  afterward,  with  the 
consent  of  the  judgment  creditor,  took  the 
goods  away  and  sold  them  at  private  sale, 
receiving  therefor  $55,  which  he  converted 
to  his  own  use.  Held,  that  the  officer  was 
not  guilty  of  larceny  under  section  71  of  the 
criminal  code  of  Illinois,  which  provides 
that  the  felonious  conversion  of  property  by 


a  bailee  shall  be  deemed  larceny;  the  gen- 
eral property  in  the  goods  after  the  levy, 
until  a  sale  according  to  law,  remaining  in 
the  judgment  debtor,  and  the  proceeds  of 
the  sale  not  being  the  property  of  tlie  judg- 
ment creditor  until  paid  over  to  him. 
Zschocke  v.  People,  62  111.  127;  s.  c.  2 
Green's  Crim.  Eeps.  560. 

8.  An  indictment  for  larceny  cannot  be 
maintained  when  it  appears  that  the  goods 
charged  to  have  been  stolen,  were  trans- 
ferred, so  as  to  create  any  trust  or  right  of 
property;  and  this  is  a  question  of  fact  for 
the  jury.  Wilson  v.  State,  1  Porter,  118. 
Where  property  is  voluntarily  delivered  to 
a  person  who  has  not  generally  the  care  of 
his  employer's  property,  and  such  person 
converts  the  property  to  his  own  use,  it  is 
embezzlement  and  not  larceny.  Ennis  v. 
State,  3  Greene,  67  ;  State  v.  Fann,  65  K  C. 
317. 

9.  Where  the  owner  parts  with  the 
possession,  but  not  with  the  title.  But 
although  the  owner  parts  with  the  possession 
voluntarily,  yet  if  he  does  not  part  with  the 
title,  but  expects  that  the  same  thing  shall 
be  returned  to  him,  or  that  it  shall  be  dis- 
posed of  on  his  account,  the  taking  and  con- 
version may  constitute  larceny.  Welsh  v. 
People,  17  111.  339 ;  Stinson  v.  People,  43 
lb.  397 ;  State  v.  Watson,  41  New  Hamp. 
533. 

10.  A  jjerson  while  stopping  at  a  hotel, 
was  handed  a  gun  by  the  landlord,  who  told 
him  he  might  go  and  shoot  birds  with  it, 
which  he  did  for  a  short  time,  and  then 
went  off  with  the  gun  and  traded  it  away. 
Held  larceny.  Richards  v.  Com.  13  Gratt. 
803. 

11.  Where  the  obligee  of  a  bond,  at  the 
request  of  the  obligor,  handed  him  the  bond 
to  look  at,  when  the  obligor  immediately 
threw  it  into  the  fire,  where  it  was  destroyed, 
it  was  held  that  if  the  obligor  intended  to 
benefit  himself  by  depriving  the  obligee  of 
his  property,  it  was  larceny.  Dignowitty  v. 
State,  17  Texas,  521. 

12.  Where  a  five  dollar  bill,  which  was 
handed  to  a  person  to  procure  change,  and 
to  pay  himself  twenty-five  cents  out  of  it, 
was  ajjpropriated  by  him,  it  was  held  that 


374 


LARCENY. 


The  Taking. 


he  was  guilty  of  larceny.    Farrell  v.  People, 
IG  m.  506. 

13.  The  prosecutor  handed  the  prisoner, 
who  was  a  bar-tender  in  a  saloon,  a  fifty 
dollar  bill,  to  take  ten  cents  out  of  it  in 
payment  for  a  glass  of  soda  water.  The 
prisoner  put  down  a  few  coppers  on  the 
counter;  and  when  asked  for  the  change  he 
put  the  prosecutor  out  of  doors  and  kept  the 
money.  Held  larceny.  Hildebrand  v. 
People,  56  N.  Y.  394 ;  s.  c.  3  N.  Y.  Supm. 
N.  S.  82;  8  lb.  19. 

14.  The  refusal  of  a  magistrate,  upon  dis- 
charging a  person  accused  of  larceny,  to 
return  to  him  the  property  which  when  ex- 
amined he  had  taken  from  him,  is  an  indict- 
able offense  at  common  law.  Hiss  v.  State, 
24  Md.  556. 

15.  In  Connecticut,  a  person  having  a 
note  left  with  him  for  collection  applied 
to  the  maker  of  the  note  for  jjayment.  The 
hxtter  asked  to  see  the  note,  and  upon  its 
being  handed  to  him  left  the  room  with  it, 
and  hid  or  destroyed  it.  Held  that  the 
Jury  were  justified  in  finding  that  the  maker 
obtained  possession  of  the  note  with  a  felo- 
nious intent,  and  that  the  act  was  larceny. 
State  V.  Fenn,  41  Conn.  590.  In  New  York, 
where  the  holder  of  a  promissory  note,  hav- 
ing received  part  payment,  handed  it  to  the 
maker  to  indorse  the  payment,  and  he  took 
it  away  and  refused  to  give  it  up,  it  was 
held  that  he  was  guilty  of  larceny,  although 
when  he  first  received  the  note  he  had  no 
felonious  intent.  People  v.  Call,  1  Denio, 
120. 

16.  A  person  left  his  room  and  trunk  un- 
locked but  closed,  in  charge  of  the  defend- 
ant, telling  him  there  was  money  in  the 
trunk  and  to  keep  the  room  secured.  In  his 
absence  the  defendant  took  some  of  the 
money.  Held  larceny.  Robinson  v.  State, 
1  Cold.  Tenn.  120. 

17.  In  Virginia,  where  the  defendant  was 
charged  with  stealing  a  free  mulatto  boy, 
knowing  at  the  time  that  he  was  free,  it  was 
held  that  the  offense  was  complete  under  the 
statute,  by  the  taking  without  an  actual  sale. 
Davenport's  Case,  1  Leigh,  588. 

18.  Where  the  owner  of  goods  parts 
with  them  for  a  special  purpose.      If  the 


owner  of  goods  parts  with  them  for  a  special 
purpose,  and  the  person  who  receives  them 
avowedly  for  that  purpose  has  a  fraudulent 
intention  at  the  time  to  convert  the  goods 
to  his  own  use,  and  does  so  convert  them,  it 
is  larceny.  Lever  v.  Com.  15  Serg.  & 
Rawle,  98 ;  State  v.  Gorman,  2  Nott  &  Mc- 
Cord,  90. 

19.  Where  a  miller  having  received  barilla 
to  grind,  fraudulently  kept  part  of  it,  re- 
turning a  mixture  of  barilla  and  plaster  of 
paris,  it  w-as  held  to  be  larceny.  Com.  v. 
James,  1  Pick.  375. 

20.  It  is  the  usual  course  of  business  for  a 
factor  to  mix  the  proceeds  of  his  sales  with 
his  own  funds,  and  to  use  them  indiscrimi- 
nately. To  make  out  larceny  from  the  mere 
use  of  the  article,  it  must  appear  that  the. 
use  was  fraudulent,  and  that  it  was  used 
under  such  circumstances  as  to  show  an  in- 
tent to  deprive  the  owner  of  his  property. 
Snell  V.  State,  50  Ga.  219.  "Where  stolen 
money  is  mingled  with  that  of  another  per- 
son, the  fact  that  it  is  not  distinguishable 
will  not  prevent  a  conviction.  People  v. 
Williams,  24  Mich.  156.  There  may  be  a 
conviction  of  larceny,  although  the  stolen 
goods  are  not  found.  State  v.  Kent,  65 
N.  C.  311. 

21.  If  a  carrier  or  other  bailee  opens  a 
package  of  goods,  and  takes  away  and  dis- 
poses of  them  to  his  own  use,  animo  furandl, 
it  is  larceny:  but  not  if  he  takes  away  and 
disposes  of  the  entire  package.  State  v. 
Fairclough,  29  Conn.  47. 

22.  But  in  Massachusetts,  it  has  been 
held  that  if  a  person  to  whom  a  wagon  load 
of  goods  consisting  of  several  packages  is 
delivered  to  be  transported,  fraudulently 
takes  away  one  of  the  packages,  such  taking 
is  larceny.     Com.  v.  Brown,  4  Mass.  580. 

23.  The  wrongful  taking  from  a  canal  boat 
by  the  captam  and  owner  of  the  boat,  of 
bars  of  iron  which  had  been  intrusted  to  him 
for  transportation,  is  larceny,  and  not  em- 
bezzlement. Nichols  V.  People,  17  N.  Y. 
114,  Denio,  J.,  dissenting. 

24.  In  Pennsylvania,  where  personal  prop- 
erty having  been  sold  on  execution  was- 
bought  by  a  friend  of  the  execution  debtor, 
who  loaned  it  to  him  to  use  until  demanded, 


LARCENY. 


375 


The  Taking. 


and  the  execution  debtor  sold  and  consumed 
it,  it  was  held  that  he  was  guilty  of  larceny 
under  the  statute  (Act  of  March  30th, 
1860,  §  108).  Com.  v.  Chathams,  50  Penn. 
St.  181. 

25.  Taking  by  servant.  Where  property 
when  appropriated  by  a  servant  is  in  the 
actual  or  constractive  possession  of  his  mas- 
ter, the  offense  is  larceny,  and  not  embezzle- 
ment; the  distinction  being  between  custody 
and  possession.  Com.  v.  Berry,  99  Mass. 
428  ;  State  v.  Jarvis,  63  K  C.  556. 

26.  A  servant  who  has  the  care  of  horses 
in  a  livery  stable,  does  not  have  such  custody 
of  them  as  to  prevent  his  conviction  of  lar- 
ceny in  taking  them  away.  People  v.  Bel- 
den,  37  Cal.  51. 

27.  Where  a  servant  who  is  intrusted  by 
his  master  with  property  converts  it  to  his 
own  use,  he  is  guilty  of  larceny,  although  at 
the  time  of  receiving  the  property  the  felo- 
nious intention  did  not  exist  in  his  mind; 
and  an  offer  by  the  servant  to  sell  the  prop- 
erty will  be  sufficient  proof  of  the  conver- 
sion.    State  V.  Schiugen,  20  Wis.  74. 

28.  Taking  by  clerk.  Where  a  clerk 
who  has  possession  of  goods  in  a  store,  and 
is  salesman  and  general  manager  of  the 
store,  abstracts  a  part  of  the  goods  with  a 
fraudulent  intent  to  convert  the  same  to  his 
own  use,  he  is  guilty  of  larceny.  Walker's 
Case,  8  Leigh,  743;  Marcus  v.  State,  26  Ind. 
101 ;  State  v.  White,  2  Tyler,  352. 

29.  Where  goods  were  feloniously  taken 
from  the  owner's  shop  by  their  clerk  and 
packer,  who  was  not  a  salesman,  though  he 
had  occasionally  sold  when  the  regular  sales- 
men were  absent  or  busy,  an  entry  being 
effected  by  keys  which  he  had,  it  was  held 
larceny  and  not  embezzlement.  Com.  v. 
Davis,  104  Mass.  548. 

30.  In  Texas,  where  a  clerk  left  in  charge 
of  a  store  at  night  carried  away  from  the  store 
money  and  goods,  and  the  next  day  was  ar- 
rested while  leaving  the  country,  at  some 
distance  from  the  store,  with  the  property  in 
his  possession,  it  was  held  that  he  was  prop- 
erly convicted  of  larceny  under  the  statute 
(Paschal's  Dig.  art.  2421),  which  provides 
that  if  a  clerk  shall  embezzle,  or  misapply, 
or  convert  to  his  own  use,  without  the  con- 


sent of  his  principal,  any  money  or  other 
property  of  such  principal  or  employer, 
which  shall  have  come  into  his  possession  or 
under  his  control  by  virtue  of  his  employ- 
ment, he  shall  be  punished  as  for  theft. 
Cobletz  V.  State,  36  Texas,  353;  s.  c.  1 
Green's  Crim.  Reps.  646. 

31.  Where  a  clerk  of  the  State  treasurer 
who  had  the  custody  of  the  State  securities, 
and  whose  duty  it  was  to  deposit  them  in  a 
bank,  feloniously  appropriated  to  his  own 
use  a  draft  which  came  into  his  hands  as 
such  clerk,  it  was  held  that  he  was  guilty  of 
larceny.  Phelps  v.  People,  13  N.  Y.  Supm. 
N.  S.  401. 

32.  Where  although  the  teller  of  a  bank 
was  intrusted  with  funds  of  the  bank  while 
engaged  in  transacting  its  business,  yet  at 
night  they  were  withdrawn  from  him  and 
placed  in  such  custody  that  he  could  not 
lawfully  resume  possession  until  the  return 
of  business  hours  and  the  concurrence  of  the 
cashier,  it  was  held,  that  in  wrongfully  ab- 
stracting the  funds  at  night,  and  converting 
them  to  his  own  use,  he  w^as  guilty  of  lar- 
ceny and  not  embezzlement.  Com.  v.  Barry, 
116  Mass.  1. 

33.  Consent  of  wife  of  owner.  It  is  a 
felony  for  a  man  who  runs  away  with 
another's  wife,  to  take  his  goods,  though 
with  the  consent  and  at  the  solicitude  of  the 
wife.  People  v.  Schuyler,  6  Cow.  572. 
Where  on  a  trial  for  grand  larceny  in  steal- 
ing a  bond  belonging  to  A.,  which  the 
prisoner  claimed  was  taken  with  the  consent 
of  A.'s  wife,  it  was  proved  that  the  prisoner 
knew  that  A.  owned  the  bond,  and  that  A. 
was  in  the  vicinity  of  the  house  and  would 
return  to  it  in  a  short  time,  it  was  held  not 
erroneous  to  submit  the  question  to  the 
jury,  whether  upon  all  the  evidence  the 
prisoner  believed  the  wife  had  any  right  to 
dispose  of  the  bond,  and  to  instruct  them 
that  if  the  wife  had  no  such  right,  and  the 
prisoner  did  not  believe  that  she  had  any, 
her  consent  to  his  taking  the  bond  furnished 
no  defense  to  him.  People  v.  Cole,  43  N.  Y. 
508 ;  affi'g  2  Lans.  370. 

34.  In  committing  trespass.  If  a  person 
by  committing  a  trespass,  tortiously  and  un- 
lawfully acquires  possession  of  the  personal 


37G 


LARCENY 


The  Taking. 


property  of  another,  and  afterward  con- 
ceives the  purpose' of  fraudulently  depriving 
the  owner  of  it,  and  in  pursuance  of  that 
design,  with  a  felonious  intent,  carries  it 
away  and  converts  it  to  his  own  use,  he  is 
guilty  of  larceny,  Com.  v.  White,  1 1  Cush. 
483. 

35.  Where  A.  agreed  to  get  stone  from  the 
land  of  another,  upon  a  contract  to  have 
half  for  getting  them,  it  was  held  that  while 
they  remained  on  the  land  undivided  A. 
was  neither  a  tenant  in  common  with  the 
owner  of  the  land  nor  a  bailee  of  them,  and 
that  therefore  he,  or  any  other  person  with 
his  connivance,  might  be  guilty  of  larceny 
in  taking  them.  State  v.  Jones,  2  Dev.  & 
Batt.  544. 

36.  Every  larceny  must  include  a  trespass, 
and  the  taking  must  have  been  under  such 
cu'cumstances  as  that  the  owner  might 
maintain  an  action  of  trespass.  The  pros- 
ecutor having  a  draft  for  gold  coin  drawn 
upon  a  banking  house,  the  prisoner  under- 
took to  get  it  cashed  for  him,  and  they  went 
for  that  purpose  to  the  office  of  a  broker, 
where  it  was  agreed  that  the  prisoner  should 
indorse  it,  and  that  the  broker  should  get 
the  money  and  have  it  at  his  office  the  same 
day  for  the  prosecutor.  The  prisoner,  in 
the  prosecutor's  absence,  went  to  the  broker's 
office,  obtained  from  him  the  money,  and 
carried  it  away,  and  when  arrested  shortly 
afterward  he  had  only  a  portion  of  it,  hav- 
ing disposed  of  the  balance.  Held  that 
if  the  prisoner  when  he  received  the  draft 
had  the  felonious  intent  of  converting  it 
and  the  proceeds  to  his  own  use,  and  that  in 
pursuance  of  that  intent  he  received  and 
carried  away  the  gold,  he  was  guilty  of  lar- 
ceny.    People  V.  McDonald,  43  N.  Y.  61. 

37.  In  Iowa,  the  statute  (§  4241),  has  done 
away  with  the  common-law  rule  that  there 
can  be  no  larceny  without  a  tresjiass,  and  no 
trespass  where  there  was  a  consent  by  a 
party  authorized  to  give  it,  even  though 
such  consent  was  obtained  by  fraud.  State 
V.  Brown,  25  Iowa,  561. 

38.  Is  included  in  robbery.  Larceny  is 
included  in  robbery,  and  tlie  prosecution 
may  elect  to  try  the  accused  of  the  former, 
though  by  so  doing  it  deprives  itself  of  the 


right  to  prosecute  for  the  latter.     Hickey  v. 
State,  23  lud.  21. 

39.  When  taking  from  person  deemed 
larceny,  and  not  robbery.  Snatching  money 
out  of  another's  hand,  and  instantly  running 
away  with  it,  is  larceny,  and  not  robbery. 
Bonsall  v.  State,  35  Ind.  460;  State  v. 
Henderson,  66  N.  C.  627. 

40.  A.  was  standing  in  a  public  street 
counting  money,  which  he  held  in  his  open 
hand.  B.,  passing  along,  took  the  money 
out  of  his  hand,  using  no  more  force  than 
was  necessary  to  withdraw  it,  and  walked 
away.  A.  called  to  her  several  times  to  re- 
turn the  money,  which  she  would  not  do. 
Held  larceny.  Johnson  v.  Com.  24  Gratt.  555. 

41.  On  the  trial  of  an  indictment  for  rob- 
bery, it  appeared  that  while  A.  was  travel- 
ing in  a  wagon  on  the  public  highway  he 
was  overtaken  about  nine  o'clock  in  the 
evening  by  B.,  who,  after  some  conversation, 
requested  A.  to  examine  a  bank  bill,  which 
B.  said  he  had  found;  that  while  A.  was 
looking  at  the  bill  he  felt  B.'s  hand  in  his 
pocket,  on  his  pocket-book,  and  immedi- 
ately seized  his  arm,  the  prisoner  at  the  same 
time  snatching  the  bill ;  and  that  thereupon 
a  scuffle  ensued,  in  which  A.  was  thrown  out 
of  the  wagon,  and  the  prisoner  escaped  with 
the  pocket-book  and  bank  bill.  Held  lar- 
ceny, and  not  robbery.  State  v.  Jolm,  5 
Jones,  163,  Battle,  J.,  dissenting. 

42.  On  the  trial  of  an  information  for  the 
robbery  of  H.,  it  was  proved  that  H.  was 
discovered  by  a  policeman  lying  on  the 
ground  at  night  in  an  unconscious  state  from 
intoxication,  with  his  pockets  turned  inside 
out,  and  the  defendant  standing  astride  his 
body,  taking  from  his  pockets  property,  and 
putting  it  in  his  own.  Held  not  robbery, 
but  larceny.     Brennon  v.  State,  25  Ind.  403. 

43.  Attempt  to  steal  from  the  person, 
•when  complete.  An  attempt  to  steal  from 
the  person  is  complete  when  an  act  is  done 
with  intent  to  commit  the  crime  which  is 
adapted  to  the  perpetration  of  it,  whether 
the  purpose  fails  by  reason  of  interruption, 
or  because  there  was  nothing  in  the  pocket, 
or  for  other  extrinsic  cause.  State  v.  Wil- 
son, SO  Conn.  500. 

44.  Suing   for    fictitious  demand.     If  a 


LARCENY. 


377 


The  Taking. 


person  having  no  cause  of  action  sues  out  a 
writ  for  a  fictitious  demand,  and  thereby 
gets  possession  of  the  property  of  another, 
■which  he  converts  to  his  own  use,  with  in- 
tent to  defraud  tlie  owner,  it  is  larceny. 
Com.  V.  Low,  Thach.  Crim.  Cas.  477. 

45.  Acquiring  possession  through  mis- 
take. Where  jiersonal  property  is  left  in 
the  possession  of  another  through  inadvert- 
ence, and  the  latter  knowing  the  owner, 
animo  furandi  conceals  it,  he  is  guilty  of 
larceny.  People  v.  McGarren,  17  Wend.  460. 

46.  A  person  who,  upon  receiving  from 
another  money  to  which  he  knows  he  is  not 
entitled,  and  which  he  knows  has  been  paid 
to  him  by  mistake,  conceals  such  overpay- 
ment, and  appropriates  the  money  to  his 
own  use,  intending  thus  to  clieat  and  de- 
fraud the  owner,  is  guilty  of  larceny.  Wolf- 
stein  V.  People,  13  N.  Y.  Supm.  N.  S.  121. 

\-  47.  Obtaining  property  by  trick.  If, 
by  trick  or  artifice,  the  owner  of  property  is 
induced  to  part  with  the  custody  or  naked 
possession  to  one  who  receives  the  prop- 
erty animo  furandi,  the  owner  still  meaning 
to  retain  the  right  of  property,  the  taking 
will  be  larceny.  Smith  v.  People,  53  N.  Y. 
111. 

48.  A.  having  left  his  watch  at  a  watch- 
maker's to  be  repaired,  B.  went  there  pre- 
tending to  be  A.,  asked  for  the  watch,  paid 
for  the  repairing,  and  took  tlie  watch  with 
a  felonious  intent.  Held  that  this  consti- 
tuted larceny  at  common  law.  Com.  v.  Col- 
lins, 13  Allen,  181. 

49.  The  prisoner  sent  an  order  to  K.  & 
Co.,  jewelers,  for  six  pairs  of  gold  bracelets, 
which  they  sent  to  him.  The  jirisoner  was 
also  a  jeweler,  and  the  order  was  designed 
and  understood  to  be  an  application  for  the 
bracelets  for  the  purpose  of  showing  them 
to  a  customer  and  enabling  him  to  insjject 
them,  and  select  wliich,  if  either,  he  would 
take,  and  the  money  for  tiiat,  together  with 
the  remainder  of  the  bracelets,  was  to  be 
returned  to  K.  &  Co.  But  the  prisoner  did 
not  return  to  K.  &  Co.  either  the  bracelets 
or  the  money  for  either  of  them.  Held  that 
as  the  title  to  the  bracelets  until  sold  re- 
mained in  K.  &  Co.,  the  prisoner  was  guilty 


of   larceny.     Weyman   v.  People,  0  N.   Y. 
Supm.  N.  S.  696. 

50.  Fraudulently  obtaining  property  by 
the  device  known  as  "the  five  cent  trick,"  is 
larceny.  Defrese  v.  State,  3  Heisk.  53 ;  s.  c. 
1  Green's  Crim.  Reps.  356. 

51.  But  where  the  maker  of  a  note,  claim- 
ing that  the  title  to  land  for  which  he  had 
given  the  note  was  not  good,  obtained  pos- 
session of  the  note  by  trick,  for  the  purpose 
of  canceling  it,  it  was  held  that  he  was  not 
guilty  of  larceny.  State  v.  Deal,  64  N.  C. 
370,  Rodman,  J.,  dissenting. 

52.  A  person  may  commit  larceny,  al- 
though the  property  is  obtained  through 
the  connivance  of  a  servant  of  the  owner, 
and  the  servant  is  guilty  of  embezzlement. 
State  V.  McCartey,  17  Minn,  76. 

53.  Obtaining  goods  by  false  pretenses.  -Y 
Where  a  person  gets  possession  of  goods  by 
false  pretenses,  intending  to  convert  them 
to  his  own  vise,  which  he  afterward  does,  it 
is  larceny.  State  v.  Ludenthall,  5  Rich.  237 ; 
Anable  v.  Com.  34  Graft.  563 ;  Watson  v. 
State,  36  Miss.  593 ;  unless  it  appear  that  a 
temjiorary  trust  or  possession  was  extended 
to  the  party.  Wilson  v.  State,  1  Porter,  118. 

54.  Where  the  owner  of  goods  was  pre- 
vailed upon  by  false  pretenses,  by  the  pris- 
oner, who  had  engaged  to  sell  them  on  com- 
mission, to  send  them  to  R.  H.  &  Co.,  who 
did  not  mean  to  buy  the  goods,  and  had 
never  agreed  to  do  so,  and  the  prisoner 
afterwards  took  the  goods  away  from  the 
store  of  R.  H.  &  Co.,  and  converted  them  to 
his  own  use,  it  was  held  that  he  was  guilty 
of  larceny.  People  v,  Jackson,  3  Parker, 
590. 

55.  The  clerk  in  a  store  referred  the  de- 
fendant to  the  owner,  who  refused  to  sell 
him  certain  articles  except  upon  his  father's 
order,  which  was  not  obtained.  Subsequently 
telling  the  clerk  in  the  absence  of  the  owner 
that  he  had  made  it  all  right  with  the  latter, 
he  took  the  goods.  Held  larceny.  Com.  v. 
Wilde,  5  Gray,  83. 

56.  On  the  trial  of  A.  and  B.,  for  grand 
larceny,  it  was  proved  that  A.  ordered  some 
goods  at  a  store,  and  directed  them  to  be 
sent  to  a  certain  place  where  they  woukl  be 
paid   for;    that  the  goods  were  sent  by  a 


378 


LARCENY. 


The  Taking. 


clerk,  and  on  his  going  into  the  house,  B. 
took  the  goods,  saying,  "  These  are  the 
goods  my  sister  ordered  ; "  that  asking  the 
clerk  to  take  a  seat,  she  went  into  the  next 
room,  saying  she  would  look  at  the  goods; 
that  after  some  time,  the  clerk  discovered 
that  she  had  left  the  house,  and  that  some 
of  the  goods  were  afterward  found  in  an- 
other house,  where  A.  lived.  Held  that  as 
the  transaction  was  a  mere  fraud  and  trick, 
and  not  the  obtaining  of  goods  under  a  pur- 
chase, the  defendants  were  properly  con- 
victed. The  following  instruction  was  held 
proper:  That  in  order  to  convict,  the  jury 
must  be  satisfied  that  at  the  time  A.  went 
to  the  store,  ordered  the  goods,  and  said 
the  bill  would  be  settled  at  the  house,  she 
had  the  felonious  intent  to  steal  the  goods ; 
and  in  like  manner,  that  B.  must  have  had 
a  felonious  intent  to  steal  when  she  obtained 
possession  of  the  goods.  St.  Valerie  v. 
People,  64  Barb.  42G. 

57.  A  person  who  obtains  possession  of 
the  discharge  paper  of  a  soldier,  by  falsely 
personating  the  owner,  and  converts  it  to 
his  own  use,  may  be  convicted  of  larceny  of 
the  paper.     Com.  v.  Lawless,  103  Mass.  425. 

58.  If  the  owner  be  deceived  into  a  sur- 
render of  the  title  as  well  as  the  possession 
of  his  goods,  by  means  of  fraudulent  repre- 
sentations, the  offense  will  not  be  larceny, 
but  false  pretenses.  Kelly  v.  People,  13  N. 
Y.  Supm.  N.  S.  509 ;  Ross  v.  People,  5  Hill, 
294. 

-T  59.  Obtaining  property  by  borrowing 
or  hiring.  If  A.  borrow  a  horse  from  B., 
with  the  felonious  intent  to  deprive  B.  of  it, 
and  to  appropriate  it  to  his  own  use,  and 
does  so,  A.  is  guilty  of  larceny;  and  the  of- 
fense is  not  purged  by  returning  the  horse 
to  the  owner.  State  v.  Scott,  64  N.  C.  586. 
If,  however,  A.  borrow  of  B.  twenty  dollars, 
with  the  same  intent,  it  is  not  larceny,  but 
fraud.  But  if  the  money  be  obtained  by  A., 
by  trick  or  contrivance,  with  the  intent  at 
the  time  to  steal  it,  it  is  larceny.  State  v. 
Bryant,  74  N.  C.  124. 

\  60.  If  A.  hire  a  horse,  and  either  at  the 
time  he  gets  possession  of  tlie  animal  or 
afterward,  conceives  the  design  of  stealing 
it,  and  canies  the  horse  away  with  that  de- 


sign, he  is  guilty  of  larceny.  Norton  v. 
State,  4  Mo.  461 ;  Starkie's  Case,  7  Leigh, 
752;  contra,  Felter  v.  State,  9  Yerg.  397. 
-^61.  Where  a  person  hired  a  horse,  pre- 
tending  that  he  wished  to  go  a  short  dis- 
tance, and  promising  to  return  in  a  few 
hours,  but  in  fact  having  no  intention  to  re- 
store the  horse  to  the  owner,  and  used  the 
horse  for  a  different  purpose  from  that  for 
which  he  hired  him,  it  was  held  larceny,  al- 
though he  did  not  sell  or  dispose  of  the 
horse.  State  v.  Humphrey,  32  Vt.  569. 
-^62.  A  person  hired  a  mule  for  a  day  or 
two,  promising  to  return  it  at  a  specified 
time ;  but  instead  of  doing  so,  he  traded 
the  mule  off  for  a  horse,  and  then  attemi^ted 
to  deceive  the  owner  by  falsely  telling  him 
that  the  mule  had  broken  away  from  him 
and  escaped.  ^e/tZ  larceny.  Smith  v.  State, 
35  Texas,  738. 

^63.  A  bailee  who  obtains  possession  of 
property  by  delivery  under  the  pretense  of 
hiring  it,  but  with  the  intent  to  convert  it 
to  his  own  use,  is  guilty  of  larceny.  State 
V.  Williams,  35  Mo.  229.  At  common  law. 
a  bailee  of  goods  could  not  be  guilty  of 
larceny  by  a  fraudulent  conversion  of  them. 
Wright  V.  Lindsay,  20  Ala.  428. 

64.  Fraudulent  taking  of  goods  by 
owner.  If  the  general  owner  of  property 
which  has  been  attached,  takes  and  carries 
the  wliole,  or  part  of  it,  away,  with  the 
intent  to  defraud  the  attaching  creditor  of 
his  security,  it  is  larceny,  but  not  if  his 
design  is  merely  to  prevent  other  creditors 
from  attaching  the  goods,  and  he  has  no 
intent  to  defraud  the  officer  or  attaching 
creditor.  Com.  v.  Greene,  111  Mass.  392; 
see  ijost.  siih.  99. 

65.  To  make  a  joint  owner  or  tenant  in 
common  guilty  of  larceny  by  taking  and 
disposing  of  the  whole  property  to  his  own 
use,  he  must  have  taken  it  out  of  the  hands 
of  a  bailee  with  whom  it  was  left  for  safe 
keeping.     Kirsey  v.  Fike,  29  Ala.  206. 

66.  "When  finder  of  property  is  guilty 
of  larceny.  A  person  who  finds  personal 
property,  knowing,  or  having  the  means  of 
knowing,  the  owner,  and  instead  of  restor- 
ing, appropriates  it  to  his  own  use,  is  guilty 


LARCENY. 


379 


The  Taking. 


of  larceny.     State  v.  Weston,  9  Conn.  527; 
People  V.  McGarren,  17  Wend.  460. 

67.  Proof  that  the  defendant  picked  up 
bank  bills^  which  had  been  dropped  by  the 
owner,  and  with  an  unlawful  intent  con- 
verted them  to  his  own  use,  without  the 
knowledge  of  the  owner,  will  sustain  an 
indictment  for  larceny;  and  the  genuineness 
of  the  bills  will  be  presumed.  State  v. 
Pratt,  20  Iowa,  267. 

68.  Where  a  person  found  a  pocket-book 
containing  money,  in  the  highway,  it  was 
held  that  if  at  the  time  of  finding  the  pocket- 
book,  and  before  he  removed  the  money, 
he  knew  it  to  be  the  property  of  the  prose- 
cutor, the  conversion  was  larceny.  State  v. 
Ferguson,  2  McMuUan,  502 ;  s.  p.  State  v. 
Weston,  9  Conn.  527;  contra^  Porter  v.  State, 
1  Mart.  &  Yerg.  226. 

69.  Where  the  owner  of  a  watch  having 
left  it  at  a  watchmaker's  for  repair,  it  was 
placed  in  a  window,  and  afterward  blown 
with  other  watches  into  the  street,  where  it 
was  picked  up  by  a  per?on  who  retained  it 
and  gave  a  false  account  of  the  manner  in 
which  he  got  it,  it  was  held  that  he  was 
properly  convicted  of  larceny.  Pritchett  v. 
State,  2  Sneed,  285 ;  see  Pyland  v.  State,  4 
lb.  357. 

70.  A  person  in  changing  his  clothes  in 
the  office  of  his  livery  stable,  unintentionally 
left  his  purse  containing  money  lying  on  an 
old  saddle  behind  the  door,  and  while  he 
was  gone  to  dinner,  the  purse  and  its  contents 
were  picked  up  by  a  boy  in  the  presence  of 
the  defendant,  and  by  his  direction,  and 
handed  to  him.  Held  larceny.  Pyland  v. 
State,  4  Sneed,  357 ;  approving  Pritchett  v. 
State,  3  lb.  285. 

71.  The  owner  of  a  ring  in  the  District  of 
Columbia,  left  it  by  accident  in  a  tub  where 
she  had  been  washing.  In  ten  or  fifteen 
minutes,  knowing  where  it  was,  she  went 
to  get  it  ;  but  meanwhile,  it  had  been  taken 
by  the  prisoner,  who  denied  the  taking  of 
it,  concealed  it,  cariied  it  to  Connecticut, 
and  offered  it  for  sale  as  her  own.  Held 
larceny  at  common  law.  State  v.  Cumraings, 
33  Conn.  260. 

72.  In  Vermont,  the  finder  of  lost  goods 
must  advertise   them,  and  if  he  conceal  or 


convert  them,  he  is  guilty  of  larceny.     State 
V.  Jenkins,  2  Tyler,  379. 

73.  When  finder  of  property  justified. 
The  finder  of  lost  goods  may  lawfully  take 
them  into  his  possession,  and  if  he  does  so 
without  any  felonious  intent  at  that  time,  a 
subsequent  conversion  of  them  to  his  own 
use,  by  whatever  intent  that  conversion  is 
accompanied,  will  not  constitute  larceny. 
Com.  V.  Titus,  116  Mass.  42;  Ransom  v. 
State,  22  Conn.  153 ;  State  v.  Roper,  3  Dev. 
473. 

74.  Where  a  person  in  good  fidth  finds 
upon  the  highway  a  lost  article,  as  a  trunk 
containing  goods,  he  is  not  guilty  of  larceny 
by  any  subsequent  act  in  hiding  or  convert- 
ing it  to  his  own  use.  People  v.  Anderson, 
14  Johns.  293. 

75.  A  person  having  lost  a  carpet  bag  con- 
taining several  articles,  on  the  highway, 
requested  the  defendant  to  find  it,  and  give 
it  to  one  H.  The  defendant  having  obtained 
the  bag,  hid  it,  and  denied  having  found  it. 
Held  not  larceny.  State  v.  England,  8  Jones, 
399. 

76.  Where  on  the  trial  of  an  indictment 
for  the  larceny  of  a  pocket-book  containing 
bank  bills,  which  had  been  lost  on  the  high- 
way, the  court  charged  the  jury  that  if  the 
defendant,  when  he  found  the  property, 
knew  or  had  the  means  of  knowing  the 
owner,  and  did  not  restore  it  to  him,  but 
converted  it  to  his  own  use,  he  was  guilty  of 
larceny,  it  was  held  error,  for  the  reason 
that  if  the  defendant,  when  he  found  the 
property,  meant  to  act  honestly  with  regard 
to  it,  no  subsequent  felonious  intention  could 
make  him  guilty  of  larceny.  Ransom  v. 
State,  22  Conn.  153. 

77.  Where  a  person  finds  lost  property 
which  has  no  marks  upon  it  by  which  the 
owner  can  be  ascertained,  he  is  not  guilty  of 
larceny,  though  he  take  it  animo  furandi' 
State  V.  Conway,  18  Mo.  321.  It  would  be 
otherwise  if  the  finder  knew  the  owner,  or 
had  the  means  of  knowing  him.  Randal  v. 
State,  4  Smed.  &  Marsh.  349. 

78.  Where  a  pocket-book  containing  bank 
bills,  with  no  mark  about  it  showing  who 
the  owner  was,  was  found  in  the  highway, 
and  there  was  no  proof  that  the  finder,  ut  the 


380 


LARCENY. 


The  Taking. 


The  Intent. 


time,  knew  who  the  owner  was,  it  was  held 
that  he  could  not  l)e  convicted  of  larceny, 
though  he  fraudulently,  and  with  intent  to 
convert  the  property  to  his  own  use,  con- 
cealed the  same  immediately  afterward. 
People  V.  Cogdell,  1  Hill,  94 ;  s.  p.  People  v. 
Anderson,  14  Johns.  293. 

79.  To  charge  the  finder  of  lost  goods 
with  larceny,  it  is  not  enough  that  he  has 
the  general  means,  by  the  use  of  diligence, 
of  discovering  the  owner.  He  must  know 
the  owner  at  the  time  of  the  finding,  or  the 
goods  must  have  some  mark  upon  them, 
understood  by  him,  by  which  the  owner  can 
be  ascertained;  and  he  must  intend  to 
appropriate  them  to  his  own  use  at  the  time 
of  finding  them.  People  v.  Cogdell,  SM|)ra  ; 
Hunt  V.  Com.  13  Graft.  757  ;  Tanner  v.  Com. 
14  lb.  635. 

80.  The  placing  of  a  pocket-book  upon  a 
table,  and  neglecting  or  forgetting  to  take 
it  away,  is  not  losing  it  in  the  sense  in  which 
the  authorities  speak  of  lost  property.  Mayor 
V.  Beasly,  21  Ala.  240. 

81.  Taking  from  house  or  building.  A 
jierson  may  be  guilty  of  larceny  from  a  house, 
although  the  original  entry  was  not  felonious 
or  with  an  intent  to  steal.  Perry  v.  State, 
10  Ga.  511. 

82.  But  to  constitute  larceny  by  entering 
into  and  stealing  from  a  house,  the  entry 
must  have  been  against  the  consent  of  the 
owner,  unless  the  crime  was  meditated  at 
the  time  of  an  entry  with  consent.  State  v. 
Chambers,  6  Ala.  855. 

83.  In  Massachusetts,  breaking  and  enter- 
ing a  dwelling-house  in  the  day  time,  with 
intent  to  steal,  and  stealing  in  a  dwelling- 
house,  whether  by  breaking  and  entering  or 
otherwise,  are  distinct  ofi'enses  subject  to 
separate  punishment.  But  any  one  act  of 
breaking,  entering,  and  stealing  necessarily 
constitutes  both  of  these  ofi'enses.  Com.  v. 
Hope,  22  Pick.  1. 

84.  Stealing  the  money  of  a  lodger  which 
is  in  his  trunk,  and  the  key  of  the  trunk  in 
a  pocket  of  his  clothes,  while  he  is  in  bed 
undressed  and  asleep,  constitutes  larceny  in 
a  dwelling-house.  Com.  v.  Smith,  111 
Mass.  429.  In  Alabama,  it  is  not  larceny  in 
a  dwelling-house,  within  the  statute  (Code, 


§  3170),  to  steal  clothes  from  the  railing  of 
a  piazza.     Henry  v.  State,  39  Ala.  679. 

85.  A  small  slight  building,  21  feet  by  15, 
in  a  garden,  used  for  the  storage  of  garden 
tools,  seeds,  and  manures,  is  not  a  warehouse 
or  granary  within  the  statute  of  New  Hamp- 
shire (Comp.  Stat,  ch,  229,  §  10)  punishing 
larceny  in  a  warehouse  or  granary  after 
entrance  therein  in  the  night,  or  breaking 
and  entering  in  the  day  time.  State  v.  Wil- 
son, 47  New  Hamii.  101. 

2.  The  intent. 

86.  Felonious  intent  essential.  The  crim- 
inal intention  is  what  distinguishes  larceny 
from  trespass.  The  fact  that  the  property 
is  taken  clandestinely,  or  that  there  is  an 
attempt  to  conceal  it,  is  evidence  of  a 
felonious  intent.  Long  v.  State,  11  Fla. 
295. 

87.  Where  a  person  having  obtained  pos- 
session of  property  from  the  owner  by  a 
false  and  fraudulent  pretense  of  buying  it 
for  cash,  carries  it  away  without  the  consent 
or  knowledge  of  the  owner,  he  is  not  guilty 
of  larceny,  unless  he  obtained  the  property 
and  carried  it  away  with  a  felonious  intent. 
Blunt's  Case,  4  Leigh,  689. 

88.  Where,  upon  a  settlement  between  a 
landlord  and  tenant,  under  which  an  unex- 
pired lease  was  to  be  surrendered  by  the 
landlord,  upon  the  payment  of  a  sum  of 
money  by  the  tenant,  a  misunderstanding 
arose  as  to  the  amount  of  the  money,  and 
the  tenant  carried  away  the  lease,  the  receipt 
for  the  money,  and  the  money  ofifered  in 
payment,  it  was  held  that  such  taking  was 
not  larceny.  Com.  v.  Robinson,  Thach. 
Crim.  Cas.  230. 

89.  Where  it  was  shown  that  property 
was  delivered  to  the  defendants  iinder  a 
contract  of  sale,  and  that  they  were  in 
possession  of  it  several  months  holding  and 
using  it  under  the  contract,  and  it  did  not 
appear  that  they  had  any  other  than  an 
honest  intent  at  the  time  they  contracted 
for  and  received  the  i^roperty,  it  was  held 
that  in  carrying  it  away  without  paying  for 
it  they  Avere  not  guilty  of  larceny.  State  v. 
Shermer,  55  Mo.  83. 

90.  Where  goods  are  taken  and  carried 


LARCENY. 


381 


The  Intent. 


away  without  the  intention  to  convert  them 
to  the  taker's  own  use,  it  is  only  a  trespass ; 
and  the  fact  that  they  were  taken  openly 
and  in  the  presence  of  the  owner  or  of  other 
persons,  would  be  evidence  of  the  absence 
of  a  felonious  intent.  McDaniel  v.  State,  8 
Smed.  &  Marsh.  401. 

91.  Where,  on  a  trial  for  larceny  it  ap- 
peared that  the  defendant's  mind  was  so 
far  destroyed  by  his  long-continued  habit  of 
drunkenness  as  to  render  him  mentally 
incompetent  intentionally  and  knowingly  to 
commit  the  larceny,  it  was  held  that  he 
ought  to  have  been  acquitted,  Bailey  v. 
State,  26  Ind.  422. 

S2.  Must  have  been  intent  to  deprive 
owner  of  property.  The  goods  must  have 
been  taken  fraudulently  and  secretly,  with 
the  felonious  intent  of  permanently  depriving 
the  owner  of  them.  Dodd  v.  Hamilton,  2  Tay- 
lor, 31 ;  State  v.  Hawkins,  8  Porter,  461 ; 
Smith  V.  Schultz,  1  gcam.  490;  Com.  v. 
Low,  Thach.  Crim.  Cas.  477 ;  Felter  v.  State, 
9  Yerg.  397 ;  State  v.  Ledford,  67  N.  C.  60 ; 
Johnson  v.  State,  36  Texas,  375 ;  s.  c.  1 
Green's  Crim.  Reps.  347;  U.  S.  v.  Durkee,  1 
McAllister  C.  C.  196. 

93.  On  the  trial  of  an  indictment  for  steal- 
ing a  horse,  it  was  held  that  if  the  defend- 
ant took  the  horse  with  intent  to  convert 
him  to  his  own  use,  and  wholly  to  deprive 
the  owner  of  his  property,  it  was  larceny ; 
but  otherwise,  if  he  took  the  horse  to  facili- 
tate his  escape,  and  left  him  at  a  livery 
stable,  without  any  intention  to  deprive  the 
owner  of  his  property.  State  v.  York,  5 
Harring.  493.  In  the  latter  case  it  would  only 
be  a  breach  of  trust.  State  v.  Self,  1  Bay, 
242. 

94.  A  person  who,  with  a  felonious  intent, 
takes  a  purse  from  a  store,  where  it  has  been 
accidentally  left,  is  guilty  of  larceny.  State 
V.  McCann,  19  Mo.  249. 

95.  The  taking  of  money  with  the  design 
to  apply  it  on  a  debt  which  the  person  from 
whom  it  is  taken  owes  the  taker,  is  larceny. 
Com.  V.  Stebbins,  8  Gray,  492. 

96.  In  Virginia,  it  was  held  that  the  de- 
fendant might  be  convicted  of  the  larceny 
of  a  free  negro  boy,  eigiit  years  of  age,  not- 
withstanding the    boy    consented    to    go, 


whether  the  defendant  knew  he  was  free  or 
not,  and  that  the  charge  of  knowledge  in 
the  indictment  might  be  rejected  as  surplus- 
age.    Davenport's  Case,  1  Leigh,  588. 

97.  Intent  to  destroy  property  not  suffi- 
cient. It  is  not  enough  that  the  i^roperty  is 
taken  for  the  purpose  of  destruction.  Such 
an  offense  would  be  punishable  as  malicious 
mischief;  but  it  would  want  one  of  the  es- 
sential ingredients  of  larceny — the  lucri 
causa.     State  v.  Hawkins,  8  Porter,  4G1. 

98.  Where,  on  a  trial  for  stealing  a  deed, 
it  appeared  that  the  defendant  had  con- 
tracted verbally  to  sell  certain  land  to  B., 
and  agreed  upon  a  final  meeting  for  that 
purpose ;  that,  in  the  mean  time,  the  defend- 
ant handed  B.  a  deed,  that  he  might  ascer- 
tain its  correctness,  neither  j^arty  consider- 
ing the  business  settled ;  that  B.  gave  the 
deed  to  his  counsel  to  examine  the  title,  and 
if  satisfactory,  to  leave  it  at  the  registry  to 
be  recorded,  which  was  done;  that  when 
the  parties  met  for  the  final  settlement,  at 
the  registry  office,  a  dispute  arose  between 
them  on  a  collateral  point,  and  the  defend- 
ant asked  the  register  for  the  deed,  and  on 
receiving  it  destroyed  it,  calling  upon  those 
present  to  witness  the  act,  it  was  held  that 
if  the  defendant  actually  supposed  that  he 
had  a  right  to  the  paper,  he  could  not  be 
convicted  of  larceny.  Com.  v.  Weld,  Thach. 
Crim.  Cas.  157. 

99.  Intent  to -deprive  owner  of  property 
temporarily.  The  taking  of  the  property 
of  another,  with  the  intent  of  only  de- 
priving the  owner  of  the  use  of  it  tempo- 
rarily, is  not  larceny.  State  v.  South,  4 
Dutch.  28. 

100.  But  where  a  person  takes  another's 
horse  while  trespassing  upon  his  jiremises, 
with  the  intention  to  conceal  it  until  the 
owner  shall  ofier  a  reward,  and  then  to  re- 
turn it  and  claim  the  reward,  or  until  the 
owner  shall  be  induced  to  sell  it  to  him  for 
less  than  its  value,  it  is  larceny.  Com.  v. 
Mason,  105  Mass.  16:5. 

101.  Intent  to  charge  another.  Larceny 
may  be  committed  by  stealing  one's  own 
property,  where  the  intent  is  to  charge 
another  with  the  value  of  it.  Palmer  v. 
People,  10  Wend.  IGC.     See  ante^  sul>.  64. 


382 


LAECENY. 


The  Intent. 


Subjects  of  Larceny. 


102.  A  person  may  steal  his  own  pro2)erty 
by  taking  it  with  intent  to  charge  a  bailee 
with  it.  People  v.  Thompson,  34  Cal.  671. 
Where  a  mortgagee  is  entitled  to  possession, 
a  felonious  taking  of  the  property  by  the 
mortgagor  constitutes  larceny.  People  v. 
Stone,  16  lb.  369. 

103.  Need  not  be  intent  to  convert  prop- 
erty. It  is  not  necessary  to  constitute  lar- 
ceny that  the  taking  should  be  in  order  to 
convert  the  thing  stolen  to  the  pecuniary  ad- 
vantage or  gain  of  the  taker.  It  is  sufficient 
if  the  taking  be  fraudulent,  and  with  an  in- 
tent wholly  to  deprive  the  owner  of  the 
property.  Hamilton  v.  State,  35  Miss.  214 ; 
People  V.  Juarez,  28  Cal.  380. 

104.  To  constitute  larceny,  the  taker  need 
not  intend  to  convert  the  property  to  his 
own  use  in  the  county  where  it  is  taken. 
State  v.  Ware,  10  Ala.  814. 

105.  Time  of  forming  intent.  To  con- 
stitute larceny  there  must  have  been  a  feloni- 
ous intent  at  the  time  of  the  taking.  Ful- 
ton V.  State,  8  Eng.  168;  McDaniel  v.  State, 
8  Smed.  &  Marsh.  401.  It  is  therefore  er- 
ror on  a  trial  for  larceny  to  charge  that  it  is 
not  necessary,  in  order  to  find  a  verdict  of 
guilty,  that  the  felonious  intent  existed  at 
the  time  of  the  taking  of  the  property,  but 
that  it  would  be  sufficient  if  such  intent  ex- 
isted at  the  time  the  prisoner  actually  con- 
verted the  same  to  his  own  use.  Wilson  v. 
People,  39  N.  Y.  459. 

106.  Where  goods  alleged  to  have  been 
stolen,  were  delivered  to  the  defendant  un- 
der a  contract  of  sale,  and  after  keeping 
and  using  them  several  months  under  the 
contract,  he  carried  them  away  without  pay- 
ing for  them,  it  was  held  that  he  could  not 
l>e  convicted  of  larceny.  State  v.  Shermer, 
55  Mo.  83;  s.  c.  2  Green's  Crim.  Reps.  613. 

107.  A  tailor  received  goods  from  a  firm 
to  be  manufactured  into  coats  for  the  firm ; 
but  after  making  the  coats,  instead  of  send- 
ing them  to  his  employers,  sold  them,  and 
ran  away  with  the  proceeds.  Held,  that  un- 
less he  intended  to  convert  the  goods  to  his 
own  use  when  they  were  delivered  to  him, 
he  was  not  guilty  of  larceny.  Abrams  v. 
People,  13  N.  Y.  Supm.  N.  S.  491. 

108.  The  following  instruction  was,  how- 


ever, held  correct:  ''If  the  prisoner  ob- 
tained possession  of  the  team,  by  falsely  and 
fraudulently  pretending  that  he  wanted  it 
to  drive  to  a  certain  place,  to  be  gone  a 
specified  time,  when  in  fact  he  did  not  in- 
tend to  go  to  such  place,  but  to  a  more  dis- 
tant one,  and  to  be  absent  longer,  without 
intending  at  the  time  to  steal  the  property, 
a  subsequent  conversion  of  it  to  his  own  use, 
with  a  felonious  intent  while  thus  using  it, 
would  be  larceny."  State  v.  Coombs,  55 
Maine,  477. 

109.  "Where  owner  is  unknown.  It  is 
larceny,  although  the  owner  of  the  stolen 
goods  is  unknown;  the  only  object  of  nam- 
ing the  owner  in  the  indictment  being  to 
identify  the  offense  so  that  the  defendant 
shall  not  be  subjected  to  a  second  trial  for 
it.     State  V.  Bell,  65  N.  C.  313. 

3.  Subjects  op  larceny. 

110.  Must  be  of  some  value.  To  con- 
stitute larceny,  or  receiving  stolen  goods,  it 
is  sufficient  if  the  thing  stolen  or  received 
is  of  some  value,  however  small.  People  v. 
Wiley,  3  Hill,  194.  But  it  is  not  larceny  to 
take  another's  letter  which  has  no  value,  and 
does  not  import  any  projaerty  in  possession 
of  the  person  from  whom  it  is  taken.  Payne 
V.  People,  6  Johns.  103. 

111.  Bonds  and  notes.  By  the  common 
law,  bonds,  bills,  or  notes,  being  of  no  in- 
trinsic value,  and  not  importing  any  prop- 
erty in  possession,  but  only  the  evidence  of 
property,  were  not  the  subjects  of  larceny. 
U.  S.  V.  Davis,  5  Mason,  358;  Greeson  v. 
State,  5  How.  Miss.  33 ;  State  v.  Casados,  1 
Nott  &  McCord,  91.  To  be  the  subjects  of 
larceny,  they  must  be,  at  the  time  of  the 
taking,  valid  and  subsisting  securities.  Wil- 
son V.  State,  1  Porter,  118. 

112.  In  South  Carolina,  previous  to  the 
acts  of  1736-7,  notes  of  hand  being  chosesin 
action,  and  not  deemed  to  possess  any  value 
in  themselves,  were  not  the  subjects  of  lar- 
ceny; but  these  acts  placed  them  on  the 
same  footing  as  the  money  they  were  in- 
tended to  secure.  State  v.  Wilson,  3  Brev. 
196. 

113.  Bank  bills  or  notes.  An  indictment 
will  not  lie  for  stealing  bank  notes  under  a 


LAECENY. 


383 


Subjects  of  Larceny. 


statute  making  promissory  notes  the  subject 
of  larceny.  Gulp  v.  State,  1  Porter,  33.  But 
see  Damewood  v.  State,  1  How.  Miss.  262. 

114.  In  Alabama,  bank  bills  and  United 
States  treasury  notes  may  be  the  subject  of 
larceny.  Sallie  v.  State,  39  Ala.  691.  In 
Missouri  a  bank  note  is  personal  property, 
and  the  subject  of  larceny  within  the  mean- 
ing of  the  statute  (Act  of  1835,  art.  3,  §  32), 
concerning  crimes  and  punishments.  Mc- 
Donald V.  State,  8  Mo.  283.  Abstracting 
bank  notes  from  a  justice's  court  where  they 
were  regularly  filed  as  part  of  the  papers, 
was  held  larceny  within  the  penal  code  of 
Arkansas.     Wilson  v.  State,  5  Ark.  513. 

115.  Receipt.  A  receipt  for  the  payment 
of  money  may  be  the  subject  of  larceny.  But 
taking  a  receipt  or  other  instrument  from 
the  hands  of  the  person  who  has  given  it,  be- 
fore it  has  taken  effect  by  delivery,  is  not 
larceny.  Where,  therefore,  a  creditor  got 
his  debtor  to  sign  a  receipt,  and  under  pre- 
tense that  he  was  about  to  pay  him,  and 
then  took  it  from  him  with  a  criminal  in- 
ent,  without  paying  him,  it  was  held  that  he 
was  not  guilty  of  larceny.  People  v.  Loomis, 
4  Denio,  380. 

116.  Larceny  cannot  be  predicated  of  a 
simple  receipt  under  the  statute  of  New 
York.  But  it  is  otherwise  as  to  accountable 
receipts,  or  receipts  for  money  to  be  account- 
ed for,  receipts  for  property  in  store,  and 
ship  receipts.  People  v.  Bradley,  4  Parker, 
245.  A  note  payable  in  lumber,  though  not 
negotiable,  is  the  subject  of  larceny.     lb. 

117.  Where  A.  promised  B.  to  pay  him 
for  work,  it  was  held  that  a  certificate  given 
by  B.  to  C,  stating  that  C.  had  paid  for  the 
work,  and  that  B.  had  no  claim  therefor  on 
A.,  was  a  receipt  or  release  within  the 
statute  of  South  Carolina  (Rev.  Stats,  ch., 
126,  §  17),  and  the  subject  of  larceny.  State 
v.  Wilcox,  3  Brev.  96. 

118.  Book  of  accounts.  In  Massachusetts, 
a  memorandum  Ijook  of  accounts  is  the  sub- 
ject of  larceny  within  the  statute.  Com.  v. 
Williams,  9  Mete.  273. 

119.  Mail  matter.  Under  the  act  of  Con- 
gress of  March  3d,  1825  (4  U.  S.  Stat,  at 
Large,  108),  making  it  an  offense  to  steal  the 
mail,  or  steal  or  take  from  the  mail,  or  from 


any  post  office,  a  letter  or  packet,  a  post 
office  may  be  a  desk,  trunk,  or  box  carried 
about  a  house,  or  from  one  building  to 
another.  U.  S.  v.  Marselis,  2  Blatchf.  108. 
A  clerk  employed  in  the  post  office  may  be 
convicted  under  the  act ;  and  a  person  may 
be  found  guilty  of  stealing  a  letter  from  the 
post  office,  although  he  merely  puts  the  let- 
ter in  his  pocket,  and  does  not  remove  it  be- 
yond the  post  office  building.     lb. 

120.  A  decoy  letter  prepared  and  mailed 
by  an  officer  of  the  government,  for  the  pur- 
pose of  entrai^ping  the  accused,  is  within 
the  act  of  Congress  of  March  3d,  1825,  §  21 
(4  U.  S.  Stat,  at  Large,  107),  making  it  an 
offense  to  open  a  letter  and  steal  money 
therefrom.  U.  S.  v.  Cottingham,  2  Blatchf. 
470. 

121.  The  act  of  Congress  (of  March  3d, 
1825,  4  U.  S.  Stat,  at  Large,  108),  making  it 
an  offense  to  open,  secrete,  embezzle  or  de- 
stroy a  letter  before  it  is  delivered  to  the 
person  to  whom  it  is  directed,  does  not  ap- 
ply where  the  letter  is  not  obtained  wrong- 
fully from  the  post  office  or  from  a  mail 
carrier.     U.  S.  v.  Parsons,  2  Blatchf.  104. 

122.  Mortgaged  property.  The  mort- 
gagor of  personal  projierty  who  is  left  in 
possession  of  it,  with  a  right  to  sell  it  and 
hold  the  proceeds  for  the  benefit  of  the 
mortgagee,  has  such  an  interest  in  the 
property  that  it  may  be  the  subject  of  lar- 
ceny.    State  V.  Mullen,  10  Iowa,  451. 

123.  Domestic  animals.  A  person  who 
drives  oft',  and  converts  feloniously  to  his 
own  use,  the  stray  cattle  of  another,  is 
guilty  of  larceny,  although  he  is  ignorant  of 
the  true  owner.  State  v.  Martin,  28  Mo. 
530.  Charging  the  jury,  that  if  cattle  es- 
caped from  the  lot  where  they  were  at  pas- 
ture and  were  on  the  highway,  the  defend- 
ant was  guilty  of  larceny  if  he  drove  them 
to  the  city  of  New  York  with  intent  to  con- 
vert them  to  his  own  use,  was  held  correct. 
People  V.  Kaatz,  3  Parker,  129. 

124.  Bees  in  the  possession  of  the  owner, 
are  the  subjects  of  larceny.  State  v.  Mur- 
phy, 5  Blackf.  498.  And  the  same  is  true  of 
poultry,  or  their  young  or  eggs.  Com.  v. 
Bceman,  8  Gray,  497.  Larceny  may  be 
committed  by  taking  pea  fowls.     lb. 


384 


LAKCENY. 


Subjects  of  Larceny. 


Warrant. 


125.  At  common  law  a  dog  was  not  the 
subject  of  larceny.  But  it  is  otherwise 
under  the  Kevised  Statutes  of  New  York, 
which  recognize  dogs  as  property  by  sub- 
jecting them  to  taxation.  People  v.  Malo- 
ney,  1  Parker,  593 ;  People  v.  Campbell,  4 
Parker,  386.  In  Alabama,  dogs  are  not  the 
subject  of  larceny.  Ward  v.  State,  48  Ala. 
101. 

126.  Animals  of  a  wild  nature.  At 
common  law,  bears,  foxes,  monkeys,  ferrets, 
cats,  &c.,  are  not  the  subjects  of  larceny, 
although  there  may  be  a  property  in  them 
which  the  law  will  protect  by  a  civil  action. 
jSTorton  v.  Ladd,  5  New  Hamp.  203;  and 
they  may  be  the  subject  of  larceny  when 
confined  or  killed.  State  v.  House,  65  N.  C. 
315.  It  has  been  held  that  a  sable  caught 
in  a  trap  in  the  woods,  is  not  the  subject  of 
larceny.  Norton  v.  Ladd,  supra.  Doves 
are  not  subjects  of  larceny,  unless  they  are 
in  the  custody  of  the  owner,  as  when  in  a 
dove  cote  or  pigeon  house,  or  in  the  nest 
before  they  are  able  to  fly.     Com.  v.  Chace, 

9  Rich.  lo. 

127.  Property  unlawfully  obtained.   An 

indictment  may  be  sustained  for  the  larceny 
of  money,  which  was  taken  from  a  jierson 
who  had  obtained  it  by  the  use  of  intoxicat- 
ing liquor  contrary  to  law.    Com.  v.  Rourke, 

10  Cush.  397.  Articles  kept  and  used  for 
gambling  may  be  the  subject  of  larceny. 
Bales  V.  State,  3  "West  Va.  685. 

128.  Things  which  savor  of  the  realty. 
The  rule  that  larceny  cannot  be  committed 
of  things  savoring  of  the  realty  only  applies 
to  such  annexations  as  adhere  to  the  soil, 
and  does  not  include  such  as  are  construct- 
ively annexed,  like  leathern  belts  applied 
and  used  to  propel  machinery.  Jackson  v. 
State,  11  Ohio,  N.  S.  104. 

129.  To  constitute  larceny  in  taking  and 
carrying  away  articles  severed  from  the 
realty,  no  particular  sjjace  is  necessary,  only 
the  two  acts  must  be  so  separated  by  time 
as  not  to  constitute  one  transaction.  State 
v.  Berryman,  8  Nev.  262. 

130.  When  nuggets  of  gold  are  separated 
from  the  original  veins  by  natural  causes, 
there  is  no  severance  from  the  realtv ;  and 


consequently  they  are  not  the  subjects  of 
larceny.     State  v.  Burt,  64  N.  C.  619.  U 

131.  Charging  the  larceny  of  "  six  hun-    // 
dred  and  ten  pounds  of  silver-bearing  ore," 
sufficiently  shows  that  the  proijerty  alleged 

to  have  been  stolen  savored  of  the  realty, 
and  was  therefore  not  the  subject  of  larceny. 
State  V.  Berryman,  8  Nev.  262 ;  s.  c.l  Green's 
Crim.  Reps.  335. 

132.  The  defendant  was  indicted  for  steal- 
ing copper  pipes  which  were  a  part  of  a 
steam  engine  attached  to  a  manufactuiing 
establishment.  i?i??fZ,  that  if  the  pipes  were 
severed  at  one  time,  so  that  they  became 
personal  property,  and  were  afterward  taken 
and  carried  away  by  the  defendant,  with  a 
felonious  intent,  it  was  larceny ;  otherwise, 
only  a  trespass.  State  v.  Hall,  5  Harring. 
492. 

133.  Where  a  woman  secretly  and  with 
an  intent  to  deprive  a  gas  company  of  their 
gas,  and  to  appropriate  it  to  her  own  use, 
severed  a  portion  of  that  which  was  in  a 
service  pipe  of  the  company,  by  taking  it 
into  her  house  and  there  consuming  it,  it 
was  held  that  she  was  guilty  of  larceny. 
Com.  V.  Shaw,  4  Allen,  308. 

134.  Turpentine  which  has  run  from  the 
trees  into  boxes  is  the  subject  of  larceny. 
State  V.  Moore,  11  Ired.  70;  and  the  same  is 
true  of  ice  in  an  ice  house.  Ward  v.  People, 
3  Hill,  395.  A  key  in  the  lock  of  the  door 
of  a  house  may  be  the  subject  of  larceny. 
Hoskins  v.  Tarrence,  5  Blackf.  417.  In 
South  Carolina,  under  the  statute  of  1826, 
com  growing  in  a  field  is  the  subject  «f  lar- 
ceny.    State  V.  Stephenson,  2  Bail.  334. 

4.  Warrant. 

135.  For  arrest.  In  New  York,  a  war- 
rant issued  by  a  justice  for  the  arrest  of  a 
person  charged  with  larceny  is  not  void  by 
reason  of  the  omission  of  an  allegation  as  to 
the  value  of  the  projDerty,  the  only  efl'ect  of 
such  an  omission  being  that  the  offense 
charged  will  be  petit  instead  of  grand  lar- 
ceny.    Payne  v.  Barnes,  5  Barb.  456. 

136.  Commitment.  A  mittimus  which 
does  not  state  the  time,  place  and  subject 
of  an  alleged  larceny  is  void.  State  v. 
Brady  Ga.  Decis.  (pt.  2),  40. 


LAKCENY. 


385 


Place  of  Indictment. 


5.  Place  of  indictment. 

137.  Where  property  is  stolen  abroad. 
A  foreigner  who  steals  goods  abroad,  and 
takes  them  to  the  State  of  New  York,  may 
be  indicted,  convicted  and  punished  in  that 
State  the  same  as  if  the  larceny  had  origin- 
ally been  committed  there.  People  v.  Burke, 
11  Wend.  139. 

138.  Where  property  was  stolen  in  New 
Brunswick  and  taken  into  Maine,  it  was 
held  that  the  thief  might  be  indicted  and 
convicted  in  that  State.  State  v.  Under- 
wood, 49  Maine,  181.  But  stealing  goods 
in  a  British  province  and  carrying  them 
into  Massachusetts  is  not  larceny  in  that 
State.     Com.  v.  Uprichard,  3  Gray,  434. 

139.  In  Ohio,  the  rule  that  a  person  hav- 
ing in  his  possession  in  that  State  property 
which  had  been  stolen  by  him  in  another 
State  of  the  Union  may  be  convicted  of  lar- 
ceny in  Ohio,  does  not  extend  to  cases 
where  the  property  was  stolen  in  a  foreign 
and  independent  sovereignty.  Stanley  v. 
State,  24  Ohio,  N.  S.  166. 

140.  Where  property  is  stolen  in  another 
State.  A  person  who  steals  goods  in  an- 
other State  and  takes  them  to  Massachusetts 
may  be  indicted  in  the  latter.  Com.  v.  Cul- 
lins,  1  Mass.  116 ;  Com.  v.  Holder,  9  Gray,  7. 
It  is  the  same  in  Connecticut,  Ohio,  Ala- 
bama, Missouri,  New  York  and  Oregon. 
State  V.  Ellis,  3  Conn.  185 ;  Hamilton  v. 
State,  11  Ohio,  435;  State  v.  Seay,  3  Stew. 
123;  Hemmakerv.  State,  12  Mo.  453;  Peo- 
ple v.  Burke,  11  Wend.  129 ;  State  v.  John- 
son, 2  Oregon,  115. 

141.  Whether  a  person  committing  theft 
in  another  State  or  country  and  carrying 
the  stolen  property  into  Michigan  would  be 
guilty  of  larceny  in  Michigan  at  common 
law,  query,  the  court  being  equally  divided 
on  the  question.  Moriisey  v.  People,  11 
Mich,  327.  The  statute  of  Michigan  mak- 
ing it  larceny  is  constitutional.  People  v. 
Williams,  24  lb.  156,  Campbell,  C.  J.,  dis- 
senting. 

142.  When  property  is  stolen  in  the  juris- 
diction of  a  sister  State  and  taken  to  Iowa, 
the  offense  is  commenced  and  consummated 
in  the  State  where  the  property  is  stolen. 
It  is  punishable  by  the  laws  of  Iowa  upon 

25 


the  principle  that  the  continued  possession 
of  the  property  stolen  is  itself  larceny,  every 
act  of  the  thief  in  the  removal  of  the  prop- 
erty and  keeping  it  from  the  possession  of 
the  owner  being  in  contemplation  of  law  an 
offense.     State  v.  Bennett,  14  Iowa,  479. 

143.  The  stealing  of  goods  in  another 
State  and  taking  them  to  Mississippi  is  lar- 
ceny in  the  latter  State,  and  the  thief  may 
be  indicted  in  any  county  to  which  he  has 
carried  the  goods.  Watson  v.  State,  36 
Miss.  593. 

144.  If  a  person  steals  goods  in  another 
State  and  carries  them  into  Nevada,  where 
he  makes  a  removal  or  asportation  of  them , 
intending  to  steal  them,  he  is  guilty  of 
larceny  in  the  latter  State.  State  v.  New- 
man, 9  Nev.  48. 

145.  Where  a  larceny  is  committed  in 
another  State  and  the  stolen  goods  taken  to 
Indiana,  it  is  not  an  offense  punishable 
there,  but  only  to  enable  the  authorities  to 
return  the  thief  to  the  proper  vicinage  for 
trial.     Beal  v.  State,  15  Ind.  378. 

146.  Where  property  is  stolen  in  another 
State  and  taken  by  the  thief  to  Louisiana, 
where  he  sells  it,  he  does  not  thereby  com- 
mit larceny  in  the  latter  State.  State  v. 
Reonnals,  14  La.  An.  278.  Stealing  prop- 
erty in  another  State  and  carrying  it  to 
New  Jersey  is  not  larceny  in  the  latter. 
State  V.  Blanch,  2  Vroom  (81  N.  J.)  82.  It 
is  the  same  in  Nebraska.  People  v.  Lough- 
ridge,  1  Neb.  11. 

147.  Where  goods  stolen  in  one  county 
are  carried  into  another  county.  By  the 
common  law,  the  legal  possession  of  stolen 
property  continues  in  the  owner,  and  the 
taker  is  guilty  of  larceny  at  all  times  while 
he  retains  possession  of  the  stolen  goods. 
Upon  this  principle,  a  person  stealing  goods 
in  one  county  and  carrying  them  into  an- 
other county  is  deemed  guilty  of  larceny  in 
the  latter,  and  the  rule  is  the  same  notwith- 
standing the  goods  have  been  altered  in 
their  character  before  being  carried  from 
one  county  into  another.  State  v.  Somer- 
ville,  21  Maine,  14.  The  doctrine  has  been 
held  not  confined  to  cases  of  stealing  prop- 
erty which  is  the  subject  of  larceny  at  com- 
mon law,  but  to  extend  to  bank  notes,  the 


380 


LARCENY. 


Place  of  Indictment. 


Indictment. 


stealing  of  which  is  made  larceny  by  statute. 
Com.  V.  Eand,  7  Mete.  475. 

148.  Where  the  original  taking  is  feloni- 
ous, every  act  of  possession  continued  under 
it  by  the  thief  is  a  felonious  taking  wherever 
the  thief  may  be,  and  he  may  be  indicted,  con- 
victed and  punished  in  any  place  where  he 
carries  the  stolen  property.  Stinson  v.  Peo- 
ple. 43  111.  397:  Aaron  v.  State,  39  Ala.  684; 
Heniy  v.  State,  7  Cold.  Tenn.  331.  But  if 
the  thief  be  tried  in  one  county,  such  trial 
will  be  a  bar  to  a  trial  in  every  other  county, 
lb. 

149.  A  person  who  aids  and  abets  in  a 
larceny  in  one  county,  and  afterward  is  con- 
cerned in  the  possession  and  disposal  of  the 
stolen  property  in  another  county,  though 
the  goods  were  removed  to  this  latter  county 
without  his  agency  or  consent,  may  be  con- 
victed of  larceny  in  the  latter  county.  Com. 
V.  Dewitt,  10  Mass.  154. 

150.  In  New  York,  it  has  been  held  that 
where  property  stolen  in  one  county  is  taken 
into  another  county,  and  through  different 
towns  of  the  latter  county  into  a  city  there- 
in, a  local  court  of  the  city  has  jurisdiction 
to  try  the  offense.  People  v.  Smith,  4 
Parker,  255. 

151.  In  South  Carolina,  the  defendant, 
who  owned  a  boat  in  the  Santee  river, 
agreed  to  carry  cotton  from  O.  district  to  C. 
Before  arriving  at  C,  and  while  passing 
down  the  river,  he  told  one  of  the  hands  on 
board  that  he  intended  to  convert  the  cotton 
to  his  own  use.  Subsequently,  at  E.,  in  C. 
district,  he  burned  a  portion  of  the  cotton, 
and  destroyed  the  marks  upon  the  other 
bales.  He  then  shipped  the  cotton  to  C, 
sold  it,  and  pocketed  the  proceeds.  Upon 
the  trial  of  an  indictment  in  O.  district,  the 
court  charged  the  jury:  That  in  order  to 
find  the  defendant  guilty  of  grand  larceny, 
there  must  have  been  a  taking  and  carrying 
away  of  the  cotton  with  a  felonious  intent, 
in  the  district  of  O. ;  that  if  the  defendant, 
when  he  received  the  cotton,  meant  to 
deliver  it  to  the  consignee  in  C,  his  after- 
ward converting  it  to  his  own  use  did  not 
constitute  larceny;  but  that  if  when  the 
cotton  was  delivered  to  him,  he  received  it 
intending  to  steal  it,  it  was  larceny  from  the 


beginning,  as  laid  in  O.  district.     Held  cor- 
rect.    State  v.  Thurston,  2  McMull.  383. 

152.  Offenses  against  United  States. 
Although  larceny  is  committed  in  a  place 
not  under  the  sole  and  exclusive  jurisdiction 
of  the  United  States,  yet  it  may  be  made 
the  subject  of  punishment  under  the  3d 
section  of  the  act  of  Congress  of  1825,  ch. 
270.     U.  S.  V.  Davis,  5  Mason,  356. 

153.  Where  a  clerk  or  servant,  who  is 
authorized  to  take  from  the  post  ofiice  all 
letters  arriving  by  mail  to  the  address  of  his 
employer,  after  receiving  them,  embezzles  or 
destroys  them,  the  offense  is  to  be  looked  into 
by  the  authorities  of  the  State,  and  not  of  the 
United  States.     U.  S.  v.  Driscoll,  1  Low,  303. 

6.  Indictment. 

154.  Thief  cannot  be  punished  with- 
out process  of  law.  One  whose  goods  have 
been  stolen  cannot  lawfully  punish  the  thief 
himself,  without  process  of  law,  by  mali- 
ciously threatening  to  accuse  him  of  the 
offense,  or  to  do  him  an  injury,  with  intent 
to  extort  property  from  him.  State  v.  Bruce, 
24  Maine,  71. 

155.  ho  liable.  A  person  who  is  deaf 
and  dumb  may  be  convicted  of  larceny. 
Com.  V.  Hill,  14  Mass.  207;  but  not  &  feme 
covert  for  a  larceny  committed  by  her 
jointly  with  her  husband.  Com.  v.  Trim- 
mer, 1  Mass.  476. 

156.  Acquittal,  when  not  a  bar.  An 
acquittal  of  the  larceny  of  certain  property 
is  not  a  bar  to  an  indictment  for  the  larceny 
of  certain  other  pi-operty,  notwithstanding 
that  the  last  mentioned  property  is  such  that 
the  language  of  the  first  indictment  might 
describe  it.  Com.  v.  Sutherland,  109  Mass. 
342;  s.  c.  1  Green's  Crim.  Reps.  189. 

157.  Statement  of  venue.  An  indict- 
ment, after  the  words  "  State  of  Texas, 
county  of  Fayette,"  and  the  usual  com- 
mencement, alleged  that  "  James  Cain,  late 
of  Travis  county,  aforesaid,  with  force  and 
arms,  in  the  county  aforesaid,  on,  &c.,  did 
then  and  there  feloniously  steal,  take,  and 
carry  away,"  &c.  i7i??(Z  bad  for  repugnancy 
and  uncertainty  in  stating  the  venue.  Cain 
V.  State,  18  Texas,  391. 

158.  Joinder  of  defendants.  Where  sev- 


LARCENY. 


387 


Indictment. 


■eral  persons  unite  in  an  attempt  to  steal 
from  the  person,  they  may  be  jointly  in- 
dicted ;  and  under  an  indictment  alleging 
that  they  all  thrust  their  hands  into  the 
pocket,  they  may  all  be  convicted,  though 
the  proof  shows  that  only  one  of  them  did 
so.     Com.  V.  Fortune,  105  Mass.  593. 

159.  Where  several  combine  to  commit 
larceny,  it  is  immaterial  whether  they  were 
previously  acquainted,  if  they  were  then 
confederating  for  the  felonious  purpose,  or 
whether  they  designed  to  procure  the  prop- 
erty in  order  to  share  it,  or  for  the  benefit  of 
one  of  them.     Stinson  v.  People,  43  111.  397. 

160.  In  Massachusetts,  one  who  steals 
goods,  and  the  receiver  of  them,  may  be 
jointly  indicted.  Com.  v.  Adams,  7  Gray, 
43;  Com.  v.  O'Connell,  13  Allen,  451.  But 
in  California,  it  has  been  held  that  an  in- 
dictment which  charges  one  person  with  the 
larceny  of  certain  goods,  and  another  person 
with  feloniously  receiving,  having,  and  aid- 
ing in  concealing  the  same,  knowing  them 
to  be  stolen,  is  bad  in  charging  two  distinct 
oflFenses  against  different  parties.  People  v. 
Hawkins,  34  Cal.  181. 

161.  Where  several  are  jointly  indicted 
for  grand  larceny,  they  have  no  right  to  re- 
quire that  another  whose  name  is  included 
in  the  indictment  shall  be  tried  with  them. 
Armsby  v.  People,  3  K  Y.  Supm.  N.  S.  157. 

182.  Averment  of  guilty  knowledge  and 
intent.  An  indictment  for  stealing  bank 
bills  and  promissory  notes  must  charge  that 
the  defendant  knew  that  the  papers  stolen 
were  bank  bills  and  notes.  Rich  v.  State, 
8  Ohio,  111;  Gatewood  v.  State,  4  lb.  386. 

163.  The  indictment  must  allege  that  the 
property  was  taken  with  intent  to  deprive 
the  owner  of  it,  and  to  appropriate  it  to  the 
use  of  the  defendant.  State  v.  Sherlock,  36 
Texas,  106  ;  Ridgeway  v.  State,  41  lb.  831; 
and  also  that  it  was  taken  without  the  con- 
sent of  the  owner.  Johnson  v.  State,  39  lb. 
393.  But  the  latter  averment  is  unnecessary 
where  the  person  from  whom  the  property 
was  stolen  had  posses  ion  of  it  with  no  other 
authority  than  to  keep  it.  Burns  v.  State, 
35  lb.  734. 

164.  An  indictment  charged  that  one  P. 
had   possession  of  a  watch,  the  property  of 


the  defendant,  by  virtue  of  his  lien  for  re- 
pairs, and  that  the  defendant  fraudulently 
took  it  without  the  consent  of  P.,  to  deprive 
him  of  the  value  of  said  repairs,  by  depriv- 
ing him  of  the  said  watch,  and  in  order  to 
appropriate  it  (the  value  of  the  repairs)  to 
the  defendant's  use.  Held  sufficient  to  charge 
a  theft  by  the  owner  of  his  own  property. 
State  V.  Stephens,  33  Texas,  155. 

165.  In  Alabama,  an  indictment  under  the 
statute  (Rev.  Code,  §  3695),  which  alleges  that 
the  defendant  broke  into  and  entered  a  build- 
ing, and  feloniously  took  and  carried  away 
personal  property  of  the  value  of  more  than 
one  hundred  dollars,  without  an  averment 
that  the  breaking  and  entering  were  with 
intent  to  steal  or  to  commit  a  felony,  charges 
grand  larceny,  and  not  felony.  Bell  v.  State, 
48  Ala.  684;  s.  c.  3  Green's  Grim.  Reps.  633. 
But  see  Fisher  v.  State,  46  Ala,  717. 

166.  General  rule  as  to  description  of 
property.  Goods  charged  to  have  been 
stolen,  must  be  described  with  certainty  to  a 
common  intent,  that  is,  with  such  certainty 
as  will  enable  the  jury  to  say  that  the  goods 
proved  to  have  been  stolen  are  the  same  as 
those  charged  in  the  indictment,  and  that 
the  court  can  see  that  they  are  the  subject- 
matter  of  the  offense  alleged.  People  v. 
Jackson,  8  Barb.  637. 

167.  The  indictment  must  show  on  its 
face  that  the  offense  alleged,  was  commit- 
ted. If  the  language  employed  be  capable 
of  two  interpretations,  only  one  of  which 
imports  a  charge  of  larceny,  the  indictment 
is  bad.  Where  the  defendant  was  charged 
with  stealing  gold-bearing  quartz  rock,  and 
it  did  not  appear  from  the  indictment  that 
the  rock  had  been  severed  from  the  ledge, 
and  thus  become  personal  property,  before 
the  alleged  taking  by  the  defendant,  it  was 
held  ground  for  arrest  of  judgment.  Peo- 
ple v.  Wiliams,  35  Cal.  671.  But  judgment 
will  not  be  arrested  where  the  objection  is 
not  to  the  whole  of  the  indictment,  but  only 
to  the  allegations  concerning  a  part  of  the 
property  which  is  alleged  in  it  to  have  been 
stolen.  Com.  v.  Eastman,  8  Gray,  76.  See 
Com.  v.  Hathaway,  14  lb.  393. 

168.  An  indictment  for  larceny  must  de- 
scribe the  articles  stolen  by  the  namss  they 


388 


LAECENY, 


Indictment. 


usually  bear,  and  specify  the  number  and 
value  of  each  species  or  particular  kind. 
State  V.  Longbottoms,  11  Hamph.  39;  State 
V.  Clark,  8  Ired.  226. 

169.  An  indictment  for  stealing  one  bridle, 
of  the  value  of,  &c.,  was  held  good.  State 
V.  Dowell,  3  Gill  &  Johns.  310.  And  the 
same  was  held  as  to  an  indictment  which 
charged  the  stealing  of  a  book,  of  the  value 
of  three  dollars,  without  giving  the  title  of 
the  book.     State  v.  Logan,  1  Mo.  532. 

170.  An  indictment  which  described  the 
stolen  property  as  "  one  head  of  neat  cattle, 
of  the  value  of  $12,"  was  held  sufficient. 
State  V.  Murphy,  39  Texas,  46.  But  an  in- 
dictment which  charged  the  stealing  of"  one 
certain  trunk  or  chest,  containing  various 
articles  of  clothing,  jewelry,"  &c.,  was  held 
bad  for  uncertainty.    Potter  v.  State,  lb.  388. 

171.  An  indictment  for  larceny,  which  in 
one  count  described  the  thing  stolen  as  "  a 
certain  writ  of  Jieri  facias  belonging  to  the 
Superior  Court"  in  another  count,  as  "a 
certain  process  of  and  belonging  to  the  Su- 
perior Court,"  and  in  a  third  count,  as  "  a 
certain  record  of  and  belonging  to  the  Su- 
perior Court,"  was  held  bad  for  uncertainty. 
State  V.  McLeod,  5  Jones,  318. 

172.  Where  an  indictment  under  a  statute 
which  makes  a  distinction  between  the 
terms  "  horse  "  and  "  gelding,"  charges  the 
defendant  with  stealing  a  horse,  proof  that 
the  defendant  stole  a  gelding  will  not  be 
sufficient.  Turley  v.  State,  3  Humph.  323; 
State  V.  Plunket,  2  Stewart,  12. 

173.  An  indictment  for  larceny,  described 
the  property  stolen  as  "  a  black  or  brown 
mare  or  filly,  branded  with  a  small  mule  shoe 
on  the  left  shoulder."  Held  that  describing 
the  animal  in  the  alternative  was  not  a  fatal 
objection,  especially  as  the  property  was 
identified  by  other  terms  of  description. 
People  V.  Smith,  15  Cal.  408. 

174.  In  South  Carolina,  the  word  pig  not 
being  in  the  statute  against  hog  stealing,  it 
was  held  that  an  indictment  for  stealing  a 
pig  contrary  to  that  act,  could  not  be  sup- 
ported.    State  V.  McLf.in,  2  Brev.  44?. 

176.  An  indictment  charging  that  the  de- 
fendant stole  a  parcel  of  oats  is  sufficient. 
State  V.  Brown,  1  Dev.  137. 


176.  Where  an  indictment  charged  the 
stealing  from  C.  of  three  swarms  of  bees 
and  forty  pounds  of  honey,  it  was  held  that 
it  must  be  intended  after  verdict,  that  the 
bees  were  reclaimed  and  the  honey  the  prop- 
erty of  C.  Harvey  v.  Com.  23  Graft.  941  • 
s.  c.  2  Green's  Crim.  Reps.  654.  A  person 
who  has  planted  oysters  has  an  absolute 
property  in  them,  and  an  indictment  for 
stealing  them  need  not  aver  that  they  were 
reclaimed.     State  v.  Taylor,  2  Dutch.  117. 

177.  When  the  thing  stolen  is  in  its  raw  or 
unmanufactured  condition,  it  may  be  de- 
scribed in  the  indictment  by  its  name,  and 
as  so  much  in  quantity,  weight,  or  measure. 
But  if  it  be  worked  up  into  a  specific  arti- 
cle, and  remain  so  when  stolen,  it  must  be 
described  by  the  name  by  which  it  is  gener- 
ally known.  The  cast  iron  top  of  an  iron 
box  which  was  stolen  separate  from  the  box, 
may  be  described  as  "  one  pound  of  iron," 
although  it  may  weigh  more  or  less  than  a 
pound.     State  v.  Horan,  Phil.  TST.  C.  571. 

178.  Description  of  promissory  notes. 
Under  a  statute  making  promissory  notes 
the  subject  of  larceny,  they  may  be  described 
in  the  same  manner  as  other  things  which 
have  an  intrinsic  value;  and  it  is  not  neces- 
sary to  add  the  words  "  for  the  payment  of 
money."  An  indictment  is  also  good  which 
alleges  the  larceny  of  a  piece  of  paper,  stat- 
ing its  value  without  further  description- 
Corn.  V.  Brettun,  100  Mass.  206.  See  Com. 
V.  Campbell,  103  lb.  436. 

179.  But  where  an  indictment  alleged  that 
the  defendant  feloniously  stole,  took  and 
carried  away  sundry  promissory  notes  for 
the  payment  of  money,  of  the  value  of  $80, 
of  the  goods  and  chattels  of  the  said  M.,  it 
was  held  bad  for  uncertainty.  Stewart  v. 
Com.  4  Serg.  &  Rawle,  194. 

180.  A  promissory  note  alleged  to  have 
been  stolen,  was  proved  on  the  trial  to  have 
been  payable  with  semi-annual  interest,  and 
all  taxes  that  should  be  assessed  on  the 
amount  of  money  represented  by  it.  An  in- 
formation for  the  theft  in  describing  the 
note,  omitted  those  particulars.  Reld  that 
the  variance  was  not  material.  State  v. 
Fenn,  41  Conn.  590. 

181.  Averment  of  the  stealing  of  men- 


LARCENY. 


389 


Indictment. 


ey.  In  Michigan,  where  an  information 
alleged  that  the  defendant  "  did  feloniously 
steal,  take  and  carry  away,  of  the  property, 
goods  and  chattels  of  J.  C.  from  the  posses- 
sion of  J,  C,  one  hundred  and  thirty-five 
dollars,"  without  other  description  of  the 
property  stolen,  or  any  allegation  of  its 
value,  it  was  held  fatally  defective.  Merwin 
V.  People,  26  Mich.  298;  s.  c.  1  Green's 
Crim.  Reps.  349. 

182.  But  in  the  same  State,  an  indictment 
under  the  statute  (Com.  L.  §  7930),  which 
charged  that  the  defendant  did  "  feloniously 
steal,  take  and  carry  away,  of  the  personal 
goods  and  chattels  of  A.  B.  fifty  dollars  in 
money,  of  the  value  of  fifty  dollars,  contrary 
to  the  statute,"  was  held  to  sufficiently  de- 
scribe the  property  stolen.  Brown  v.  Peo- 
ple, 29  Mich.  232. 

183.  Description  of  bank  bills.  An  in- 
dictment under  a  statute  which  prescribes 
the  punishment  for  stealing  "any  bank 
note,"  is  good  which  charges  the  stealing  of 
*'a  bank  bill."  Eastman  v.  Com.  4  Gray, 
416  ;  Low  V.  People,  2  Parker,  37. 

184.  In  Michigan,  an  indictment  under 
the  statute  (Sess.  1840,  p.  43,  §  1),  which 
charged  the  stealing  of  "  bank  notes "  or 
"  bank  bills,"  following  the  language  of  the 
statute,  was  held  good.  People  v.  Kent,  1 
Doug.  42. 

185.  An  indictment  for  stealing  bank  bills 
need  not  particularly  describe  them ;  but 
their  number  and  value  should  be  stated. 
Hamblett  v.  State,  18  New  Hamp.  884;  and 
it  ought  to  be  alleged  that  the  bills  con- 
tained a  promise  to  pay  money,  or  some 
agreement  to  that  effect.  State  v.  Emery, 
Brayt.  131. 

186.  An  indictment  for  the  larceny  of  a 
bank  note,  which  described  the  note  as  a 
twenty  dollar  bank  note  on  the  State  Bank 
of  North  Carolina,  of  the  value  of  twenty 
dollars,  was  held  sufficient.  State  v.  Rout, 
3  Hawks,  618.  And  the  same  was  held  of 
an  indictment  which  alleged  that  the  de- 
fendant stole  of  the  proper  goods  and  chat- 
tels of  A.  B.  "  a  ten  dollar  bill  of  the  cur- 
rency of  the  country,  commonly  called  paper 
money,  of  the  value  of  ten  dollars."  State 
V.  Evans,  15  Rich.  31. 


187.  An  indictment  was  held  good  which 
described  the  stolen  property  as  "  a  bank 
note  of  the  State  Bank  of  Ohio  for  the  pay- 
ment of  ten  dollars."  Crawford  v.  State,  2 
Carter,  132.  And  see  Engleman  v.  State, 
lb.  91.  The  same  was  held  of  an  indict- 
ment which  charged  the  stealing  of  "  three 
promissory  notes  called  bank  notes  on  the 
Bank  of  the  United  States."  McLaughlin 
V.  Com.  4  Rawle,  464.  But  an  indictment 
which  alleged  the  stealing  of  "one  bank 
note  of  the  Bank  of  Baltimore,"  was  held 
bad.     Com.  v.  McDowell,  1  Browne,  359. 

188.  An  indictment  charging  the  larceny 
of  sundry  bank  bills,  of  a  specified  denom- 
ination and  value,  of  the  Central  Railroad 
and  Banking  Company  of  Georgia,  signed 
by  the  president  of  that  company  and 
countersigned  by  the  cashier,  the  same  being 
the  property  of  that  bank,  which  were  in- 
trusted to  the  defendant  as  such  cashier,  is 
a  sufficient  description  of  the  articles  stolen. 
Bullock  V.  State,  10  Ga.  46. 

189.  An  indictment  for  larceny  which  de- 
scribes the  peojaerty  stolen  as  "  a  quantity  of 
bank  bills  current  within  this  common- 
wealth, amounting  together  to  one  hundred 
and  fifty  dollars,  and  of  the  value  of  one " 
hundred  and  fifty  dollars,"  is  sufficient. 
Com.  V.  O'Connell,  12  Allen,  451.  And  see 
Com.  V.  Sawtelle,  11  Cush.  142. 

190.  Where  an  indictment  alleged  that 
the  prisoner  feloniously  and  violently  stole, 
took,  and  carried  away  from  the  person  of 
J.  D.,  and  against  his  will,  current  bank 
bills  of  the  value  of  fifteen  dollars,  and 
silver  coin  of  the  value  of  three  dollars,  it 
was  held  sufficient,  although  it  did  not  show 
the  number  and  denomination  of  the  bank 
bills,  or  the  amount  secured  thereby  and  re- 
maining unsatisfied  thereon,  or  the  number, 
size  and  description  of  the  pieces  of  silver 
coin.     People  v.  Loop,  3  Parker,  559. 

191.  An  information  for  larceny  was  held 
sufficient  which  charged  the  property  stolen 
as  "  thirteen  bills  against  the  Hartford  Bank, 
each  for  the  payment  and  of  the  value  of 
ten  dollars,  issued  by  such  bank,  being  an 
incorporated  bank  in  this  State."  Salis- 
bury V.  State,  0  Conn.  101. 

192.  An  indictment  for  larceny  suBBciently 


390 


LAECENY. 


Indictment. 


describes  the  property  stolen  in  alleging 
that  it  consisted  of  "  one  ten  dollar  treasury 
note  of  the  United  States,  usually  called  a 
greenback,  and  one  ten  dollar  national  bank 
bill  usually  called  a  greenback."  Sallie  v. 
State,  89  Ala.  691. 

193.  An  indictment  charged  the  defend- 
ant with  stealing  "two  five  dollar  United 
States  treasury  notes,  issued  by  the  treasury 
department  of  the  United  States  govern- 
ment, for  the  payment  of  five  dollars  each, 
and  of  the  value  of  five  dollars  each."  Held 
sufficient.     State  v.  Thomason,  71  N.  C.  146. 

194.  An  indictment  for.  larceny  which  al- 
leged the  stealing  of  "  divers  bank  notes, 
amounting  in  the  whole  to  the  sum  of  five 
hundred  dollars,  and  of  the  value  of  five 
hundred  dollars, "  held  bad  for  uncertainty. 
State  V.  Hinckley,  4  Minn.  345.  But  an  in- 
dictment was  held  sufficient  which  charged 
that  the  defendant  "did  steal,  take  and 
carry  away  divers  and  sundry  genuine  and 
current  treasury  notes  of  different  denomi- 
nations, issued  by  the  treasury  department 
of  the  United  States,  and  divers  and  sundry 
genuine  and  current  bank  notes  of  diflerent 
denominations  issued  by  different  and  sundry 
national  banks,  organized  under  the  laws  of 
the  United  States,  all  of  which  treasury 
notes  and  bank  notes  amounted  to  the  sum 
of,  and  were  of  the  value  of  $250,  and  were 
the  property  of  one  J.  S. ;  a  more  particular 
description  of  which  treasury  notes  and 
bank  notes,  or  of  any  or  either  of  them,  is 
to  the  grand  jurors  unknown.  State  v. 
Taunt,  16  lb.  109. 

195.  Description  of  bank  bills  as  prom- 
issory notes.  An  indictment  properly  de- 
scribes a  bank  bill  alleged  to  have  been 
stolen,  as  a  promissory  note.  Com.  v. 
Thomas,  10  Gray,  483;  Com.  v.  Paulus,  11 
lb.  305. 

196.  An  indictment  for  larceny  was  held 
sufficient  which  alleged  that  the  property 
stolen  was  "  one  promissory  note  issued  Ijy 
the  treasury  department  of  the  government 
of  the  United  States  for  the  payment  of  one 
dollar.     State  v.  Fulford,  Phil.  N.  C.  563. 

197.  An  indictment  for  the  larceny  of 
United  States  treasury  notes  described  them 
as  "  promissory  notes  of  the  United  States 


given  for  the  payment  of  money,"  stating 
their  denomination  and  value;  and  bank 
notes  were  described  as  "national  bank 
notes,  commonly  called  national  currency 
notes,  then  and  there  being  obligatory  prom- 
issory notes  of  the  national  currency  issue, 
given  for  the  payment  of  money."  Held. 
sufficient.  Hummel  v.  State,  17  0hio,KS.G28. 

198.  An  indictment  was  held  sufficient 
which  charged  the  defendant  with  stealing- 
ten  promissory  notes,  called  bank  notes,  is- 
sued by  the  Chickopee  Bank,  for  the  pay- 
ment of  the  divers  sums  of  money,  amount- 
ing, in  the  whole,  to  the  sum  of  $50,  and  of 
the  value  of  $50 ;  ten  promissory  notes, 
called  bank  notes,  issued  by  the  Agawam 
Bank,  &c.,  of  the  goods,  chattels  and  prop- 
erty of  one  B.  M.  People  v.  Jackson,  8 
Barb.  637.  And  see  People  v.  Holbrook,  18 
Johns.  90. 

199.  In  South  Carolina,  the  stealing  of  a 
bank  bill  was  held  an  offense  within  the 
statute  (of  1736-7),  making  it  felony  to  steal 
any  warrant,  bill,  or  promissory  note  for  the 
payment,  or  for  securing  the  payment,  of 
any  money,  being  the  property  of  any  other 
person  or  persons;  and  that  it  was  not  a 
good  objection  to  the  indictment  that  it  de- 
scribed the  bill  as  a  promissory  note,  al- 
though the  words  promissory  note  and  bank 
bill  are  not  convertible  terms.  State  v. 
Wilson.  3  Brev.  196. 

200.  Bank  issuing  bills  alleged  to  have 
been  stolen  need  not  be  named.  An  in- 
dictment for  the  larceny  of  a  bank  note  need 
not  state  that  the  bill  is  genuine,  or  the 
name  of  the  bank  issuing  it.  State  v. 
Stevens,  62  Maine,  284 ;  s.  c.  2  Green's  Crim. 
Reps.  481.  And  charging  in  the  same  count 
that  the  defendant  stole  a  pocket-book  and 
shoe-knife,  at  the  same  time  and  place,  does 
not  render  the  indictment  bad  for  duplicity. 
Ibid. 

201.  In  Virginia,  an  indictment  for  the 
larceny  of  two  bank  notes,  whicli  contained 
no  other  description  of  the  notes  than  that 
they  were  bank  notes  current  within  the 
United  States,  and  that  one  of  them  was  for 
the  sum  of  ten  dollars,  and  the  other  for  five 
dollars,  was  held  good  after  verdict.  Com. 
V.  Mosely,  2  Va.  Cas.  154. 


LARCENY. 


391 


Indictment. 


202.  In  Tennessee  it  was  held  sufficient, 
in  an  indictment  for  larceny,  to  describe 
bank  notes  alleged  to  have  been  stolen,  as 
"ten  five  dollar  bank  bills  of  the  value  of 
five  dollars  each,"  without  naming  the  bank 
that  issued  them;  and  that  the  fact  that 
they  were  current  when  stolen  was  prima 
facie  evidence  that  they  were  worth  their 

nominal  value.     Pyland  v.  State,  4  Sneed, 
357. 

203.  In  South  Carolina,  an  indictment  un- 
der the  statute  for  the  larceny  of  bank  bills, 
need  not  allege  that  they  were  the  bills  of  an 
incorporated  bank,  or  so  describe  them  that 
they  may  be  distinguished  from  other  bills 
of  the  same  bank.  It  is  sufficient  to  de- 
scribe them  as  the  bills  of  a  certain  bank, 
naming  it.     State  v.  Smart,  4  Rich.  35G. 

204.  Insufficient  description  of  bank 
bills.  An  indictment  for  larceny,  which  de- 
scribes the  property  stolen  as  "goods  and 
lawful  money  of  the  United  States,  common- 
ly called  greenbacks,  of  the  value  of  twenty- 
four  dollars  and  twenty-five  cents,"  is  in- 
sufficient.    State  V.  Cason,  20  La.  An.  48. 

205.  An  indictment  for  larceny,  charging 
that  the  defendant  took  and  carried  away 
' '  one  lot  of  treasury  notes,  called  green- 
backs, the  issue  of  the  treasury  of  the  U.  S. 
of  America,  and  one  lot  of  Kentucky  bank 
notes,"  is  bad  for  uncertainty.  Rhodus  v. 
Com.  2  Duvall,  Ky.  159. 

206.  An  indictment  charged  the  defend- 
ant with  stealing  "twelve  five  dollar  and 
one  ten  dollar  notes,  to  wit :  United  States 
promissory  or  bank  notes  of  the  value  of 
seventy  dollars."  Held  that  the  objection 
that  the  description  was  uncertain  and  in 
the  alternative  came  too  late  after  verdict. 
Bell  V.  State,  41  Ga.5S9. 

207.  An  indictment  which  charged  the 
stealing  of  "  one  hundred  and  eighty-two 
dollars  in  United  States  currency,"  was  held 
bad  for  uncertainty.  Martinez  v.  State,  41 
Texas,  164;  Ridgeway  v.  State,  lb.  231. 
And  the  same  was  held  of  an  indictment 
which  charged  the  larceny  of  "$150,  in 
United  States  currency."  Merrill  v.  State, 
45  Miss.  651 ;  contra.,  State  v.  Casting,  23 
La.  An.  600. 

208.  An    indictment    for   the   larceny   of 


"  bills  of  credit  on  the  United  States  Bank," 
which  showed  that  the  amounts  charged 
were  less  than  the  Bank  of  the  United  States 
was  authorized  to  issue  by  its  charter,  was 
held  bad.     Culp  v.  State,  1  Porter,  33. 

209.  Description  of  coin.  Stolen  coin 
should  be  described  as  so  many  pieces  of 
current  gold  or  silver  coin,  specifying  the 
species  of  coin,  unless  the  species  of  coin  be 
unknown  to  the  grand  jury,  in  which  case 
they  may  so  state.  People  v.  Bogart,  36 
Cal.  245.  An  indictment  described  the 
property  stolen  as  "  three  thousand  dollars 
lawful  money  of  the  United  States."  Held 
not  sufficient,  the  species  of  coin  not  being 
stated.  People  v.  Ball,  14  Cal.  101.  An  in- 
dictment which  charged  the  defendant  with 
stealing  "ten  dollars  good  and  lawful 
money  of  the  State  of  Tennessee,"  was  held 
insufficient.  State  v.  Longbottoms,  11 
Humph.  39. 

210.  It  is  not  a  ground  for  arrest  of  judg- 
ment, after  conviction  of  larceny  of  gold  and 
silver  coin  and  bank  bills  of  a  specified 
value,  that  the  indictment  avers  that  the 
grand  jury  have  no  knowledge  or  means  of 
knowledge  of  the  particular  description  of 
the  coin  or  bank  bills  alleged  to  have  been 
stolen.  Com.  v.  Sawtelle,  11  Cush.  142. 
See  Com.  v.  O'Connell,  12  Allen,  451. 

211.  Where  it  was  alleged  that  the  pris- 
oner stole  "  three  dollars  in  divers  pieces  of 
silver  current  in  this  State,  and  of  the  lawful 
value  of  three  dollars,"  it  was  held  insuffi- 
cient, and  that  the  defect  was  not  cured  by 
a  verdict.  Lord  v.  State,  20  New  Hamp.  404. 

212.  An  averment  in  an  indictment  for 
larceny,  that  the  defendant  stole  United 
States  gold  coin,  is  the  same  as  to  allege 
that  he  stole  gold  coin  of  the  United  States ; 
and  it  will  be  presumed  that  the  court  and 
jury  know  that  a  United  States  gold  coin  of 
the  denomination  and  value  of  ten  dollars 
is  an  eagle.     Daily  v.  State,  10  Ind.  536. 

213.  An  indictment  charged  the  defendant 
with  stealing  "  the  sum  of  sixty-five  dollars 
of  the  following  description:  two  twenty 
dollar  gold  pieces,  and  one  five  dollar  gold 
piece,  anrl  two  ten  dollar  United  States  cur- 
rency bills,  and  one  money  purse."  Held 
that  as  the  indictment  failed  to  state  that 


592 


LAKCENY. 


Indictment. 


tlicy  \verc'  of  tlio  current  coin  of  the  United 
States  or  of  any  other  country,  it  was  bad 
both  as  to  description  and  value.  Boyle  v. 
State,  ;37  Texas,  359. 

214.  In  Louisiana,  in  an  indictment  for 
the  larceny  of  coin  under  the  statute  (R.  S. 
1856,  p.  176,  §  88)  it  is  not  necessary  to 
specify  the  kind  or  denomination  of  the 
coin.     State  v.  Walker,  23  La.  An.  425. 

215.  In  Massachusetts,  a  complaint  for 
larceny  was  held  sufficient  ■which  described 
the  property  stolen  as  "  cojiper  coin  of  the 
value  of  two  dollars  and  seventy-five  cents," 
without  alleging  that  it  was  money  current 
in  the  State.  Com.  v.  Gallagher,  16  Gray, 
240. 

216.  Description  of  building.  "Where  an 
indictment  for  larceny  in  a  building  does 
not  properly  describe  the  building,  the  con- 
viction will,  notwithstanding,  be  good  for 
simple  larceny.  Com.  v.  Hathaway,  14 
Gray,  392. 

217.  In  Maine,  where  an  indictment  for 
compound  larceny  under  the  statute  (ch.  156, 
§  2),  which  punishes  the  breaking  and  en- 
tering into  and  stealing  within  any  building 
in  which  goods,  merchandise,  or  any  valua- 
ble thing  is  kept  for  use,  sale,  or  deposit, 
omitted  to  charge  that  it  was  a  building  of 
that  description,  it  was  held  that  the  indict- 
ment might  be  maintained  for  simple  larce- 
ny.    State  V.  Savage,  32  Maine,  583. 

218.  Ownership  of  property  must  be 
averred.  At  common  law,  the  ownership 
of  property  stolen  must  be  correctly  averred 
if  known  ;  and  the  proof  must  correspond 
with  the  averment.  If  not  known,  it  must 
be  averred  to  be  the  property  of  some  per- 
son or  persons  to  the  grand  jurors  unknown. 
Winder  v.  State,  25  lud.  234 ;  Com.  v.  Man- 
ley,  12  Pick.  173;  Com.  v.  Morse,  14  Mass. 
217:  Reed  v.  Com.  7  Bush,  Ky.  641. 

219.  An  indictment  for  altering  the  brand 
of  a  horse  with  intent  to  steal  it,  which 
charges  the  property  as  that  of  an  estate^  is 
bad.  It  should  allege  that  the  animal  be- 
longs to  a  particular  individual,  or  that  the 
owner  is  unknown.  People  v.  Hall,  10  Cal. 
425. 

220.  A  complaint  which  charges  the  lar- 
ceny of  "  one  sheep  of  the  value  of  five  dol- 


lars, the  property  of  another  person  who  is 
unknown  to  your  complainant,"  is  sufficient. 
State  V.  Polland,  53  Maine,  134. 

221.  Charging  the  larceny  of  bank  bills 
"  the  goods  and  chattels  of  A.,"  is  sufficient 
without  alleging  that  they  were  the  property 
of  A. ;  the  term  "  chattel "  denoting  property 
and  ownership.  People  v.  Holbrook,  18 
Johns.  90  ;  Com.  v.  Moseley,  2  Va.  Cas.  154; 
People  V.  Kent,  1  Doug.  43. 

222.  An  indictment  for  the  larceny  of  coin, 
bills,  bonds,  and  treasury  notes,  which  de- 
scribes them  as  "  of  the  goods  and  chattels" 
of  A.,  sufficiently  alleges  ownership.  State 
V.  Bartlett,  55  Maine,  200. 

223.  An  indictment  is  sufficient  which  in 
one  count  charges  that  the  defendant  "  did 
steal  a  mule,  the  pers.onal  property  of  J.  L.," 
and  in  another  count  that  he  "  did  steal  a 
horse,  mare,  gelding,  colt,  filly,  or  mule,  the 
personal  property  of  J.L."  Gabriel  v.  State, 
40  Ala.  357.  v 

224.  Owner  of  goods  stolen  must  bev..^ 
named.  It  is  necessary  to  set  forth  in  an 
indictment  for  larceny,  the  entire  christian 
as  well  as  the  surname  of  the  owner  of  the 
goods  alleged  to  have  been  stolen,  if  known, 
linger  v.  State,  42  Miss.  642 ;  State  v.  Go- 
det,  7  Ired.  210.  ^^_^ 

225.  In  an  indictment  for  larcTOTTihe 
name  of  the  owner  of  the  goods  stolen  is 
matter  of  substance,  and  the  indictment  in 
this  respect  cannot  be  amended.  State  v. 
Lyon,  47  New  Hamp.  416. 

226.  Where  the  property  stolen  was  al- 
leged to  belong  to  Richard  G.,  and  it  was 
afterward  described  as  the  property  of  Rob- 
ert G.,  it  was  held  a  mere  clerical  error,  and 
not  ground  for  objection.  Greeson  v.  State, 
5  How.  Miss.  33. 

227.  In  Texas,  it  has  been  held  that  the 
initials  of  the  christian  name  of  the  owner 
of  property  stolen,  in  an  indictment  for  lar- 
ceny, are  sufficient.  State  v.  Black,  31 
Texas,  560.  And  where  the  indictment 
charged  that  an  animal  stolen  was  the  pro- 
perty of  T.  C.  Lucky,  and  the  proof  showed 
it  to  be  the  property  of  C.  C.  Lucky,  it  was 
held  that  the  variance  was  immaterial. 
Brown  v.  State,  32  lb.  124. 

228.  Ownership  of  mail  matter.     An  in- 


LAECENY. 


393 


Indictment. 


dictment  for  stealing  a  letter  must  allege  it 
to  be  the  property  of  some  person  other  than 
the  prisoner.  U.  S.  v.  Foye,  1  Curtis  C.  C. 
364. 

229.  An  indictment  for  stealing  bank 
notes  from  the  mail,  may  descrilie  them  as 
the  property  of  the  person  forwarding  them. 
U.  S.  V.  Burroughs,  3  McLean,  405. 

230.  Articles  furnished  by  parent  to 
child.  Necessaiy  articles  furnished  by  a 
parent  to  a  child,  may  be  described  in  the 
indictment  as  belonging  either  to  the  parent 
or  child.     State  v.  Williams,  2  Strobh.  229. 

231.  An  indictment  for  larceny  charged 
that  the  property  stolen  belonged  to  A.  B. 
It  was  objected  that  it  should  have  been  laid 
as  the  jjroijerty  of  her  father,  she  being  under 
age  and  living  with  him.  Held  that  the 
ownership  was  well  laid  in  the  daughter,  the 
articles  being  in  her  possession,  and  used 
exclusively  by  her.  State  v.  Koch,  4  Bar- 
ring. 570. 

232.  An  indictment  for  stealing  a  saddle 
furnished  by  a  father  to  liis  minor  son,  may 
describe  the  saddle  as  the  projierty  either  of 
the  father  or  son.  State  v.  Williams,  2 
Strobh.  229. 

J3.  Property  of  married  woman. 
Money  held  by  a  married  woman,  for  the 
support  of  herself  and  children,  is  in  con- 
templation of  law  the  projierty  of  her  hus- 
band, and  must  be  so  averred  in  pleading, 
when  an  averment  of  property  is  necessary. 
Com.  V.  Davis,  9  Cush.  283. 
—  234.  An  indictment  for  stealing  the  sep- 
arate property  of  the  wife,  from  the  posses- 
sion of  the  husband,  may  describe  it  as  be- 
longing to  the  husband.  Davis  v.  State,  17 
Ala.  415. 

235.  In  Massachusetts,  the  statute  (of 
1855,  ch.  304)  enabling  married  women  to 
have  money  and  property  in  their  own  right 
and  to  their  owm  use,  and  to  trade  on  their 
own  account,  does  not  change  the  rule  of 
the  common  law,  that  money  in  the  posses- 
sion of  a  married  woman  is  deemed,  in  the 
absence  of  proof,  the  property  of  the  hus- 
band, and  must  be  so  alleged  in  an  indict- 
ment for  larceny.  Com.  v.  Williams,  7  Gray, 
337. 

236.  In    Louisiana,  in  an  information  for 


larceny  committed  against  the  property  of 
the  community,  the  goods  stolen  should  be 
alleged  to  belong  to  the  husband,  and  proof 
that  they  belong  to  the  community  will  not 
sustain  a  charge  that  they  belong  to  the 
wife.  State  v.  Gaffery,  12  La.  An.  265. 
The  rule  is  the  same  in  Texas.  Merriweather 
V.  State,  33  Texas,  789. 

237.  Joint  ownership.  At  common  law, 
if  the  stolen  goods  are  the  property  of 
partners  or  joint  owners,  the  names  of  all 
the  partners  or  joint  owners  must  be  stated; 
but  if  they  belong  to  a  corporation,  an  indict- 
ment will  be  good  which  contains  an  allega- 
tion to  that  effect.  People  v.  Bogart,  36 
Cal.  245. 

238.  Where  the  goods  of  partners  are 
stolen,  one  of  whom  has  only  a  contingent 
interest  in  the  goods,  they  must  be  laid  in 
the  indictment  as  the  property  of  the  partner 
who  has  the  legal  interest  in  them.  People 
V.  Romaine,  1  Wheeler's  Grim.  Cas.  369. 

239.  An  indictment  for  larceny  vfhich  in 
one  count  alleges  the  goods  stolen  to  be  the 
property  of  certain  persons,  and  in  other 
counts  states  the  owners  to  be  different 
persons,  does  not  charge  different  offenses, 
but  only  the  same  offense  in  different  forms. 
People  V.  Connor,  17  Cal.  354. 

240.  Where  property  stolen  belongs  to  a 
body  of  i^ersous,  it  ought  not  to  be  laid  in 
the  indictment  as  the  property  of  the  body, 
unless  such  body  is  incorporated,  but  should 
be  described  as  belonging  to  the  individuals 
composing  the  company.  Where  the  in- 
dictment did  not  describe  the  property  as 
belonging  to  any  natural  person  or  persons, 
nor  to  any  corporate  body,  it  was  held  on 
motion  in  arrest  of  judgment,  that  the  error 
was  fatal.  Wallace  v.  People,  63  111.  451  ; 
s.  c.  2  Green's  Crim.  Reps.  562. 

241.  Special  ownership.  When  there  is 
a  general  and  a  special  owner  of  the  thing 
stolen,  the  indictment  may  lay  the  owner- 
ship, in  either  the  one  or  the  oLher,  although 
the  goods  were  never  in  the  real  owner's 
possession,  but  only  in  that  of  the  bailee. 
State  V.  Gorhara,  55  New  Hamp.  152;  State 
v.  Mullen,  30  Iowa,  203;  Com.  v.  O'Hara,10 
Gray,  469;  Hill  v.  State,  1  Head,  454. 

242.  Goods  bought  for  the  use  of  the  poor, 


394 


LARCENY. 


Indictment. 


by  order  of  the  county  superintendent,  and 
kept  by  liim  for  tliat  object,  may  bs  stated 
in  the  indictment  to  be  his  property  or  the 
property  of  the  county.  People  v.  Bennett, 
37  N.  Y.  117. 

243.  An  indictment  for  stealing  money 
from  a  guardian,  may  allege  that  it  is  the 
property  of  the  guardian.  Thomassou  v. 
State,  22  Ga.  499. 

244.  Where  a  person  receives  leather  to 
make  into  shoes,  to  be  delivered  to  his 
employer  when  done,  an  indictment  for 
stealing  them,  -while  yet  in  the  hands  of  the 
manufacturer,  may  allege  .  the  property  of 
the  shoes  to  be  in  him.  State  v.  Ayer,  3 
Foster,  301. 

245.  Goods  stolen  from  a  woman  who 
takes  in  the  linen  of  other  people  to  wash, 
may  be  charged  in  the  indictment  to  be  the 
property  of  such  woman.  State  v.  Ayer, 
supra  ;  U.  S.  v.  Burroughs,  3  McLean,  405. 

246.  Where  goods  which  have  been  levied 
on  by  a  constable  are  stolen,  they  may  be 
described  in  the  indictment  as  the  property 
of  the  constable.  Palmer  v.  People,  10 
Wend.  160. 

247.  An  indictment  for  stealing  a  pistol 
hired  from  the  State,  may  describe  it  as  the 
property  of  the  hirer.  Jones  v.  State,  13 
Ala.  153. 

248.  The  property  in  a  box  belonging  to  a 
society  deposited  in  a  tavern,  the  landlord 
being  entitled  to  the  key  of  the  box,  may  be 
laid  to  be  in  the  landlord.  State  v.  Ayer,  3 
Foster,  301. 

249.  Where  the  goods  of  A.  are  stolen  by 
B.,  and  afterward  they  are  stolen  from  B.  by 
C,  an  indictment  against  the  latter  may 
charge  them  to  be  the  property  of  either  A. 
or  B.     Ward  v.  People,  3  Hill,  395. 

250.  K  a  coach  be  standing  in  the  yard  of 
a  coachmaker  to  be  repaired,  and  a  plate  of 
glass  and  hammercloth  be  stolen  from  it,  the 
property  may  be  laid  in  the  coachmaker. 
U.  S.  V.  Burroughs,  3  McLean,  405. 

251.  Where  goods  are  stolen  from  the  boot 
of  a  stage,  they  may  be  laid  in  the  driver, 
though  he  be  not  the  proprietor  of  the 
coach.     lb. 

252.  An  indictment  for  stealing  horses 
may  allege  the  propeity  of  the  horses  to  be 


in  one  who  had  the  lawful  possession  of 
them,  though  not  the  real  owner.  State  v. 
Addiugton,  1  Bail.  310.  And  see  People  v. 
Smith,  1  Parker,  329. 

253.  Where  a  horse  got  away  from  the 
owner,  and  was  taken  in  the  field  of  a  third 
person  and  placed  in  his  stable,  from  whence 
he  was  stolen,  it  was  held  that  the  indict- 
ment for  the  larceny  might  describe  the 
horse  as  belonging  either  to  the  owner  or 
such  third  person.  Owen  v.  State,  G  Humph. 
330. 

254.  Averment  of  possession.  An  in- 
dictment for  larceny  at  common  law  need 
not  allege  that  the  property  was  stolen  from 
the  possession  of  any  person.  Thompson  v. 
Com.  2  Va.  Cas.  135. 

255.  The  first  count  of  an  indictment 
charged  the  defendant  with  stealing  a  slave 
of  the  goods  and  chattels  of  A.  B.  from  the 
possession  of  A.  B.  The  second  count  was 
like  the  first,  excepting  that  it  did  not 
allege  that  the  slave  was  taken  from  the 
possession  of  any  one,  and  neither  count 
charged  that  the  offense  was  committed 
against  the  form  of  the  statute.  It  appeared 
that  the  slave  was  at  the  time  a  runaway. 
Held  that  the  defendant  must  be  discharged, 
the  slave  not  being  in  the  actual  possession 
of  A.  B.,  and  the  indictment  not  charging 
an  olfense  at  common  law.  Com.  v.  Hays, 
1  Va.  Cas.  122. 

256.  Where  the  bailee  of  a  sherifi"  took 
from  him  personal  chattels  which  had  been 
attached,  and  gave  an  accountable  receipt 
with  a  promise  to  deliver  the  same  on  de- 
mand, it  was  held  that  the  bailee  had  no 
such  special  property  in  the  chattels  as 
would  sustain  an  indictment  charging  lar- 
ceny from  such  bailee.  Com.  v.  Morse,  14 
Mass.  217. 

257.  An  indictment  for  larceny  from  a 
house  must  state  the  name  of  the  owner  or 
occupant  of  the  house.  Lankin  v.  State,  42 
Texas,  415. 

258.  Averment  of  value.  Where  the 
nature  of  the  punishment  for  larceny  de- 
pends upon  the  value  of  the  things  stolen, 
the  allegation  of  value  is  material,  and  if  the 
indictment  omits  such  an  averment  it  can- 
not be   amended.     State    v.    Goodrich,    46 


LARCENY. 


395 


Indictment. 


New  Hamp.  186;  Sheppard  v.  State,  42  Ala. 
531;  Com.  v.  Smith,  1  Mass.  245;  Morgan 
V.  State,  13  Fla.  671.  The  failure  to  allege 
in  the  indictment  the  value  of  the  property 
charged  to  have  been  stolen  is  ground  for 
arrest  of  judgment.  Davis  v.  State,  40  Ga. 
229. 

259.  Although  when  the  goods  of  several 
persons  are  stolen  at  the  same  time  the  in- 
dictment may  include  the  whole,  yet  the 
value  of  each  article  and  the  name  of  each 
owner  must  be  separately  and  specially  al- 
leged. State  V.  Merrill,  44  New  Hamp.  624; 
Hope  V.  Com.  9  Mete.  134  ;  contra,  Clifton 
V.  State,  5  Blackf.  224 ;  State  v.  Murphy,  8 
lb.  498. 

260.  Where  an  indictment  for  stealing 
towels  and  handkerchiefs  did  not  allege 
that  each  of  the  towels  or  each  of  the 
handkerchiefs  was  of  some  value,  but  only 
that  six  of  the  towels  and  twelve  handker- 
chiefs were  of  some  value,  it  was  held  that 
there  must  be  a  new  trial,  it  being  consis- 
tent with  the  allegation  that  the  only  towels 
and  handkerchiefs  which  were  deemed  of 
any  value  were  those  not  produced  or  proved 
to  have  been  stolen.  Com.  v.  Lavery,  101 
Mass.  207. 

261.  In  an  indictment  for  larceny,  the  fol- 
lowing allegation :  The  defendant  "  feloni- 
ously took  and  carried  away  a  certain  writ- 
ing commonly  called  a  cotton  receipt,  issued 
by,"  &c.,  "dated  Dec.  4th,  1869,  numbered 
988,  and  issued  to,"  &c.,  "for  the  receipt  of 
one  bale  of  cotton,  marked,"  &c.,  "and 
weighing  524  pounds,  of  the  value  of  more 
than  $100,  the  property  of,"  &c.,  is  bad  for 
uncertainty,  it  not  appearing  whether  the 
allegation  of  value  applies  to  the  bale  of 
cotton  or  the  receipt.  Caesar  Williams  v. 
State,  44  Ala.  396. 

262.  An  indictment  for  stealing  a  letter 
from  the  post  office,  containing  an  article  of 
value,  must  describe  the  article  and  state  its 
value.     U.  S.  v.  Burroughs,  3  McLean,  405. 

263.  An  indictment  for  the  larceny  of 
promissory  notes  must  allege  the  value  of 
the  notes.  Describing  them  as  being  of 
certain  amounts  is  not  sufficient.  Wilson  v. 
State,  1  Porter,  118. 

264.  An   indictment    for    the   larceny   of 


bank  bills  which  alleges  their  aggregate 
amount  and  value,  need  not  state  their 
number  or  denomination.  Com.  v.  Stebbins, 
8  Gray,  492.  Where,  therefore,  an  indict- 
ment charged  the  stealing  of  sundry  bank 
bills  of  some  banks  respectively,  to  the 
jurors  unknown,  of  the  amount  and  value 
of  thirty-eight  dollars,  it  was  held  sufficient 
without  setting  forth  the  number  of  bank 
bills  stolen,  or  the  denomination  of  each  par- 
ticular bill.     Com.  V.  Grimes,  10  lb.  470. 

265.  In  Alabama,  an  indictment  for  steal- 
ing any  horse,  mare,  gelding,  colt,  tilly,  or 
mule,  is  sufficient,  without  alleging  the  value 
of  the  animal  taken ;  the  Code  making  such 
theft  grand  larceny  irrespective  of  the  value. 
Maynard  v.  State,  46  Ala.  85. 

256.  Where  the  punishment  for  larceny 
from  the  person  does  not  dej^end  upon  the 
amount  stolen,  the  indictment  need  not 
allege  the  value  of  the  property,  or  describe 
it  with  particularity.  Com.  v.  McDonald,  5 
Cush.  305. 

267.  Under  the  act  of  New  York  of  1862 
(ch.  374,  §  2),  providing  that  "  whenever 
any  larceny  shall  be  committed  by  stealing, 
taking,  and  carrying  away  from  the  person 
of  another,  the  offender  may  be  punished  as 
for  grand  larceny,  although  the  value  of  the 
property  taken  shall  be  less  than  twenty-five 
dollars,"  an  indictment  is  good  as  a  charge 
for  grand  larceny,  although  it  does  not  aver 
that  the  property  was  stolen  in  the  night 
time,  nor  that  it  was  of  a  value  exceeding 
twenty-five  dollars.  People  v.  Fallon,  6 
Parker,  256 ;  affi'd  1  N.  Y.  Ct.  of  App.  Decis. 
83. 

268.  Averment  of  place  of  oflFense.  In 
Mississippi,  when  goods  are  stolen  in  one 
county  and  carried  into  another  county,  an 
indictment  in  the  latter  county  will  be 
quashed  for  want  of  jurisdiction,  unless  it 
charge  that  the  larceny  was  committed  in  that 
county,  the  possession  of  the  stolen  good<j 
l)y  the  thief  being  a  larceny  in  every  county 
into  which  he  carries  them.  Johnson  v. 
State,  47  Miss.  671;  s.  c.  1  Green's  Crim. 
Reps.  341.  In  Nevada,  it  has  been  held  that 
the  indictment  in  such  case  must  charge 
that  the  offense  was  committed  in  the  latter 
county,  or  state   that    the   bringing  of  the 


396 


LAECENY. 


Indictment. 


property  iuto  that  county  was  felonious. 
State  V.  Brown,  8  Nev.  308 ;  s.  c.  1  Green's 
Crim.  Reps.  343. 

269.  An  indictment  for  bringing  stolen 
property  from  another  State  must  allege  that 
the  possession  of  the  property  in  the  State  to 
which  it  was  taken  was  felonious.  State  v. 
Levy,  3  Stew.  123. 

270.  A.,  while  traveling  on  the  cars  fr(jm 
Detroit  to  Chicago,  became  acquainted  with 
B.,  C.  and  D.  Wliile  the  train  was  in  the 
State  of  Indiana,  B,  made  a  bet  with  A. ; 
whereupon  A.  deposited  the  amount  of  his 
het  in  money  with  C,  and  -B.  deposited  an 
express  package,  which  afterward  proved  to 
be  nothing  but  waste  paper,  though  marked 
on  the  back  $380.  A.  demanded  his  money 
from  C,  which  he  refused  to  return.  B.,  C. 
and  D.,  being  tried  and  convicted  of  larceny 
in  Chicago,  the  judgment  was  affii-med. 
Stinson  v.  People,  43  111.  397. 

271.  Charging  attempt  to  commit  of- 
fense. An  indictment  for  an  attempt  to 
commit  larceny  must  state  facts  showing  the 
manner  in  which  the  attempt  was  made. 
State  V.  Brannan,  3  Nev.  238. 

272.  An  indictment  for  an  attempt  to 
commit  larceny  is  sufficient  which  charges 
that  the  accused  took  the  impression  of  a 
key,  and  prepared  a  false  key  from  that  im- 
pression, to  unlock  the  door  of  A.'s  store,  | 
with  the  intention,  through  the  agency  of 
B.,  to  break  and  enter  the  store  and  to  steal. 
Griffin  v.  State,  26  Ga.  493. 

273.  An  indictment  for  attempting  to 
commit  larceny  from  the  person,  which 
alleges  that  the  defendant  "  did  attempt  to 
steal,  take,  and  carry  away  from  the  person 
of  F.,  the  money,  goods,  and  chattels  of  the 
said  F.,  then  and  there  being  in  the  posses- 
sion and  upon  the  person  of  the  said  F.," 
&c.,  and  did,  "  with  intent  then  and  there  to 
commit  the  crime  of  larceny  from  the  person 
of  the  said  F.,  thrust,  insert,  and  place  his 
hand  into  the  pocket  of  said  F.,"  sufficiently 
charges  that  the  pocket  into  which  the 
defendant  thrust  his  hand  was  on  the  person 
of  F.     Com.  V.  Sherman,  105  Mass.  169. 

274.  Charging  second  offense.  An  in- 
dictment which  cliarges  the  prisoner  with  a 
second  offense  of  petit  larceuy  must  state 


facts  to  show  that  he  had,  prior  to  the  last 
offense,  been  convicted  of  the  jDrevious 
offense;  and  if  the  conviction  is  alleged  to 
have  taken  place  before  a  court  of  limited 
jurisdiction,  the  indictment  must  show  that 
the  court  had  jurisdiction  as  well  of  the 
subject-matter  as  of  the  person  of  the  pris- 
oner.    People  V.  Powers,  2  Seld.  50. 

275.  In  New  York,  an  indictment  for 
petit  larceny  charged  as  a  second  offense  is 
good  which  avers  generally  that  the  Court 
of  Special  Sessions,  before  which  the  de- 
fendant was  convicted,  had  full  and  com- 
petent power  and  authority  in  the  premises 
to  try  and  convict  the  defendant,  without 
setting  forth  the  facts  showing  jurisdiction, 
the  omission  to  state  such  facts  being  only 
a  formal  defect,  which  is  cured  by  the  stat- 
ute of  jeofails.  People  v.  Golden,  3  Parker, 
330. 

276.  An  indictment  for  petit  larceny  as  a 
second  offense  is  sufficient,  although  it  only 
charges  that  the  defendant  was  convicted  of 
the  first  offense,  without  alleging  a  judgment 
or  sentence,  or  naming  the  person  or  prop- 
erty which  the  first  offense  concerned.  But 
not  if  the  indictment  omits  to  charge  that 
the  defendant  had  been  jjardoned  or  othei'- 
wise  discharged  from  the  first  conviction 
before  the  commission  of  the  second  oflfeuse. 
Stevens  v.  People,  1  Hill,  261.  The  statute 
of  New  York  declaring  a  second  offense  of 
petit  larceny  to  be  punishable  in  the  State 
prison  does  not  apply  to  a  case  in  which  the 
first  conviction  took  place  in  another  State. 
People  V.  Caesar,  1  Parker,  645. 

277.  In  Virginia,  an  indictment  for  a 
second  offense  of  larceny,  which  charged  a 
former  conviction  and  punishment  for  a  like 
offense,  but  did  not  state  that  the  court  in 
which  the  first  offense  was  tried  had  juris- 
diction of  the  same,  or  that  the  former  con- 
viction remained  in  force,  or  that  such 
conviction  ajipeared  of  record,  or  that  the 
prisoner  was  the  pei'sou  who  was  formerly 
convicted,  was  held  sufficient  after  verdict. 
Stroup's  Case,  1  Rob.  754. 

278.  Where  an  indictment  for  petit  lar- 
ceny described  it  as  a  second  offense,  and 
alleged  a  previous  conviction  of  forgery,  it 
was  held  that  the  defendant  misjht  be  con- 


LARCENY. 


397 


Indictment. 


victed   of    the    larceny   as   a  first    offense. 
Palmer  v.  People,  5  Hill,  427. 

279.  Form  of  an  indictment  charging 
petit  larceny  as  a  second  offense.  People  v. 
Caesar,  1  Parker,  645. 

280.  Charging  ofiense  in  different  ways. 
Where  an  indictment  containing  several 
counts  charges  the  same  larceny  in  different 
ways,  the  prosecutor  will  not  be  compelled 
to  elect  on  which  count  he  will  proceed ;  but 
it  is  otherwise  where  the  evidence  tends  to 
show  that  distinct  larcenies  are  embraced  in 
the  indictment.  Engleman  v.  State,  2 
Carter,  91. 

281.  An  indictment  for  larceny  charging 
the  defendant  with  "  stealing,  taking,  and 
leading  or  driving  away  "  animals  stolen,  is 
not  bad  as  charging  the  offense  in  the  dis- 
junctive.    People  V.  Smith,  15  Cal.  408. 

282.  A  grand  juror's  complaint  charged 
that  A.,  at  &c.,  on  the  21st  day  of  November, 
1857,  with  force  and  arms,  one  buffalo  robe 
of  the  value  of  eight  dollars,  of  the  goods 
and  chattels  of  B.,  of,  &c.,  feloniously  did 
steal,  &c.,  and  that  said  A.,  at,  &c.,  on  the 
21st  day  of  November,  1857,  did  theu'and 
there,  feloniously  steal,  &c.,  one  other  buf- 
falo robe  of  the  value  of  eight  dollars  of  the 
goods  and  chattels  of  B.,  against  the  peace 
and  contrary  to  the  statute.  Held  not  a 
ground  for  airest  of  judgment  on  account 
of  duplicity.  State  v.  Holmes,  28  Conn. 
230.  The  prosecution  may  elect  to  proceed 
for  part  of  several  articles  charged  in  the 
indictment  to  have  been  stolen.  State  v. 
Donnegan,  34  Mo.  67. 

283.  Averment  of  the  stealing  of  arti- 
cles belonging  to  different  persons.  The 
spoils  of  a  single  larcenous  act  may  all  be 
included  in  one  count,  and  the  indictment  is 
not  thereby  bad  for  duplicity.  State  v. 
Stevens,  62  Maine,  284 ;  s.  c.  2  Green's  Crim. 
Reps.  481 ;  and  this  may  be  done,  notwith- 
standing the  articles  stolen  are  the  property 
of  different  persons.  State  v.  Henncssy,  23 
Ohio,  N.  S.  339 ;  s.  c.  2  Green's  Crim.  Reps. 
541;  Lorton  v.  State,  7  Mo.  55;  State  v. 
Morphin,  37  lb.  373;  State  v.  Nelson,  29 
Maine,  329;  Bell  v.  State,  42  Ind.  335;  or 
there  may  be  as  many  different  indictments 
against  the  thief  as  there  are  owners  of  tlie 


property.  State  v.  Thurston,  2  McMulL 
382;  Com.  v.  Sullivan,  104  Mass.  552;  State 
V,  Lambert,  9  Nev.  321. 

284.  Counts  for  horse  stealing,  and  for 
stealing  other  property,  may  be  joined  in 
the  same  indictment.  Barton  v.  State,  18 
Ohio,  221.  An  indictment  which  charges 
the  stealing  of  a  horse  of  the  value  of  one 
hundred  dollars,  a  sleigh  of  the  value  of 
fifty  dollars,  and  a  harness  of  the  value  of 
thirty  dollars,  is  not  bad  for  duplicity. 
State  V.  Snyder,  50  New  Hamp.  150. 

285.  The  following  indictment  contain- 
ing a  single  count,  was  held  not  bad  for 
duplicity:  That  on  the  9th  of  Septem- 
ber, 1866,  the  defendant  feloniously  did 
steal  one  horse  of  the  value  of  three  hun- 
dred dollars,  one  buggy  wagon  of  the  value 
of  one  hundred  and  flity  dollars,  and  one 
harness  of  the  value  of  fifty  dollars,  the 
proper  goods  and  chattels  of  a  person 
named.     State  v.  Cameron,  40  Vt.  555. 

286.  Charging  distinct  offenses.  Dis- 
tinct larcenies  may  be  presented  in  different 
counts  of  one  indictment ;  and  whether  the 
prosecution  shall  elect  between  them  is  in 
the  discretion  of  the  court  and  not  a  subject 
of  exception.    Com.  v.SuUivan,  104  Mass.552. 

287.  An  indictment  may  charge  the  de- 
fendant with  larceny,  and  with  receiving  the 
same  goods  knowing  them  to  have  been 
stolen.  State  v.  Stimpson,  45  Maine,  608 ; 
Hampton  v.  State,  8  Humph.  69 ;  Keefer  v. 
State,  4  Ind.  246;  State  v.  Crosby,  4  La. 
An.  434 ;  State  v.  McLane,  lb.  435. 

288.  In  Massachusetts,  distinct  larcenies, 
and  also  distinct  offenses  of  receiving  stolen 
goods  may  be  joined  in  the  same  indictment 
in  different  counts;  and  the  ordering  of 
separate  trials  is  in  the  discretion  of  the 
court.     Com.  v.  Hills,  10  Cush.  530. 

289.  An  indictment  which  alleges  that 
the  defendant  broke  and  entered  a  shop 
with  intent  to  commit  a  larceny,  and  did 
then  and  there  commit  a  larceny,  is  not  bad 
for  duplicity.  Com.  v.  Tuck,  20  Pick.  356  ; 
and  the  same  if  true  of  au  indictment 
which  charges  the  breaking  and  entering  a 
dwelling-house  in  the  night,  and  stealing 
therein.  Com.  v.  Hope,  22  Pick.  1 ;  State 
V.  Squires,  11  New  Hamp.  38. 


398 


LAKCENY. 


Indictment. 


Evidence. 


Proof  of  Taking. 


290.  An  indictment  charged  the  defend 
ants  with  "burglary  committed  as  follows," 
and  then  stated  facts  constituting  the  crime 
of  larceny.  Held  good  as  an  indictment  for 
the  latter  offense.  State  v.  Coon,  18  Minn. 
518. 

291.  An  indictment  charging  that  the  de- 
fendant did  embezzle,  steal,  take,  and  carry 
away,  certain  goods,  is  not  bad  for  duplicity. 
The  word  embezzle  may  be  rejected  as  sur- 
plusage.    Com.  V.  Simpson,  9  Mete.  138. 

292.  Material  and  immaterial  aver- 
ments. An  indictment  which  alleges  that 
the  defendant  "  feloniously  did  steal,  take, 
and  carry  "  the  property,  omitting  the  word 
"away  ''  is  insufficient,  either  as  against  the 
thief  or  the  receiver.  Com.  v.  Adams,  7 
Gray,  43. 

293.  An  indictment  for  the  larceny  of 
bank  notes  must  charge  that  the  offense 
was  committed  feloniously,  and  state  to 
whom  the  notes  belonged,  or  allege  that  he 
is  unknown.  Barker  v.  Com.  2  Va.  Cas. 
123. 

294.  The  word  ''  steal "  is  not  necessary 
in  an  indictment  for  larceny.  Damewood 
V.  State,  1  How.  Miss.  262;  Engleman  v. 
State,  2  Carter,  91 ;  and  the  employment  of 
the  term  "stal  "  for  steal,  in  the  indictment, 
is  not  cause  to  arrest  the  judgment.  Wills 
T.  State,  4  Blackf.  457. 

295.  It  is  not  ground  of  demurrer  to  an 
indictment  for  larceny,  that  the  property 
stolen  is  alleged  to  be  of  the  value  of  a  spec- 
ified number  of  dollars,  omitting  the  words 
"lawful  money  of  the  United  States." 
People  V.  Winkler,  9  Cal.  234. 

296.  An  indictment  for  stealing  a  cow  is 
sufficient  which  charges  that  the  defendant 
"  did  steal,  take  and  carry  away  "  the  cow, 
omitting  the  words  "  lead  or  drive  aw'ay." 
People  V.  Strong,  46  Cal.  302. 

297.  Conclusion.  As  the  stealing  of  a 
promissory  note  is  not  an  offense  at  common 
law,  an  indictment  for  the  larceny  of  it 
must  conclude  "contrary  to  the  form  of  the 
statute."     People  v.  Cook,  2  Parker,  12. 

7.  Evidence.       ^^ 

(a)  Proof  of  taking. 

298.  Materiality.     On  the  trial  of  an  in- 


dictment for  larceny,  a  taking  as  well  as 
carrying  away  must  be  shown.  Pennsyl- 
vania V.  Campbell,  Addis.  232. 

299.  On  a  trial  for  steahng  two  hogs,  the 
property  of  W.,  it  was  proved  that  the  two 
hogs  of  W.  were  missing,  and  that  fifty 
pounds  of  pork  were  found  in  the  possession 
of  the  defendant,  which  it  was  claimed  from 
certain  marks  was  the  meat  of  the  lost 
hogs.  Evidence  was  offered  by  the  defend- 
ant to  the  effect  that  he  bought  a  quantity 
of  pork  shortly  previous  to  the  loss  of  W.'s 
hogs.  The  judge  charged  the  jury  that  if 
they  were  reasonably  satisfied  that  the  meat 
found  in  the  possession  of  the  defendant 
was  the  property  of  W.,  it  was  their  duty  to 
find  the  prisoner  guilty.  Held  that  as  it  was 
necessary  to  show  that  a  larceny  had  been 
committed  before  attaching  importance  to 
the  identification  of  the  property,  the  in- 
struction was  erroneous.  State  v.  McGowan, 
1  Rich.  N.  S.  14. 

300.  Taking  from  maiL  To  justify  a 
conviction  on  a  trial  for  stealing  letters  and 
packages  from  the  mail,  the  jury  must  be 
satisfied  not  only  that  the  mail  has  been  vio- 
lated, but  that  the  letters  and  packages  in 
question  had  been  in  and  were  taken  from 
the  mail.  The  most  satisfactory  evidence 
that  a  letter  or  package  was  put  into  the 
mail  for  transmission,  is  that  of  the  person 
who  deposited  it  in  the  post  office;  and  the 
best  evidence  of  its  loss,  is  that  of  the  person 
to  whom  it  was  addressed.  U.  S.  v.  Crow, 
1  Bond,  51. 

301.  Proof  of  substance  of  charge  suffi- 
cient. An  indictment  which  charges  the 
stealing  and  carrying  away  of  a  horse,  will 
be  maintained  by  proof  that  the  defendant 
rode,  drove  or  led  the  horse  away.  Baldwin 
V.  People,  1  Scam.  304. 

302.  In  Alabama,  it  was  held  on  the  trial 
of  an  indictment  for  larceny,  competent  for 
the  prosecution  to  prove  that  the  goods  were 
stolen  by  the  defendant  in  another  State 
and  brought  by  him  into  that  State.  Mur- 
ray V.  State,  18  Ala.  727. 

303.  But  proof  of  embezzlement  will  not 
support  an  indictment  for  larceny,  notwith- 
standing the  statute  declares  that  a  person 
who  embezzles  money  or  goods,    shall  be 


LAKCENY. 


399 


Evidence. 


Proof  of  Taking.       Evidence  as  to  Property  Taken. 


held  to  have  committed  larceny.  Com.  v. 
Simpson,  9  Mete.  138;  Com.  v.  King,  9 
Cush.  284;  Fulton  v.  State,  8  Eng.  168. 
Proof,  however,  of  burglarj',  on  the  trial  of 
an  indictment  for  larceny,  does  not  entitle 
the  defendant  to  an  acquittal.  Wyatt  v. 
State,  1  Blackf.  257. 

304.  An  indictment  for  larceny  will  not 
be  supported  by  proof  that  the  defendant 
received  or  jiurchased  the  goods,  knowing 
them  to  be  stolen,  although  by  statute  the 
punishment  for  the  offense  proved  is  the 
same  with  that  charged.  Ross  v.  State,  1 
Blackf.  390.       . 

305.  Uncorroborated  testimony  of  pros- 
ecutor. It  is  doubtful  whether  on  the  trial 
of  an  indictment  for  larceny,  the  defendant 
ought  ever  to  be  convicted  on  the  uncorrob- 
orated testimony  of  a  prosecutor  who  claims 
the  property  in  question,  to  which  the  de- 
fendant also  claims  title,  where  the  transac- 
tion was  not  attended  with  any  of  the  usual 
concomitants  of  larceny  or  concealment. 
State  V.  Kane,  1  McCord,  482. 

306.  Prosecution  compelled  to  elect. 
When  the  evidence  tends  to  prove  distinct 
larcenies,  the  prosecution  may  be  compelled 
to  elect  upon  which  of  them  they  will  rely. 
Engleman  v.  State,  2  Carter,  91. 

307.  Question  for  jury.  The  question 
whether  the  severance  from  the  freehold, 
and  asportation  of  property  alleged  to  have 
been  stolen,  were  so  separated  by  time  as 
not  to  constitute  one  transaction,  is  to  be 
deteiTQined  by  the  jury.  State  v.  Berryman, 
8  Nev.  263 ;  s.  c.  1  Green's  Crim.  Reps.  335. 

(5)  Evidence  as  to  property  taken, 

308.  Proof  of  stealing  more  than 
charged.  An  indictment  charged  the  de- 
fendant "vvith  stealing  two  horses,  and  it  was 
proved  that  he  also  stole  saddles  and  bridles. 
Held  that  the  variance  was  immaterial. 
Jackson  v.  State,  14  Ind.  327. 

309.  Proof  as  to  one  of  several  articles 
charged  to  have  been  stolen.  Under  an 
indictment  for  larceny,  or  for  receiving 
stolen  goods,  charging  the  stealing  or  re- 
ceiving of  several  articles,  the  defendant 
may  be  found  guilty,  although  the  offense  is 


proved  only  in  respect  to  a  single  article. 
People  V,  Wiley,  3  Hill,  194. 

310.  In  Virginia,  where  the  indictment 
was  for  stealing  one  gelding,  of  a  dark  bay 
color,  and  also  two  horses,  worth  $75  each, 
and  it  appeared  from  the  record  of  the  ex- 
amining court  that  the  defendant  had  been 
examined  for  stealing  a  dark  bay  horse,  and 
also  two  horses,  halter-chain  and  collar, 
worth  $150,  it  was  held  that  the  variance 
was  not  material.  Halkem  v.  Com.  2  Va, 
Cas.  4. 

311.  But  in  Alabama,  where  an  indict- 
ment charged  the  stealing  of  a  bank  note 
and  other  articles,  and  there  was  a  variance 
between  the  indictment  and  the  proof  as  to 
the  bank  note,  and  the  defendant  would  not 
consent  to  an  amendment  of  the  indictment 
so  as  to  correctly  describe  the  bank  note,  the 
court  refused  to  permit  a  nolle  prosequi  to  be 
entered.     State  v.  Kreps,  8  Ala.  591. 

312.  Slight  variance  not  regarded.  An 
indictment  charging  the  larceny  of  treasury 
notes,  was  held  sustained  by  proof  that  the 
property  stolen  was  greenbacks,  Hickey  v. 
State,  23  Ind.  31. 

313.  Proof  that  a  trunk,  containing  money, 
was  taken  and  carried  away  from  a  house, 
will  support  a  charge  of  taking  and  carrying 
away  money.     Berry  v.  State,  10  Ga.  511. 

314.  Evidence  that  the  defendant  stole  a 
mare,  or  gelding,  will  suppoi't  an  indictment 
for  stealing  a  horse.  Bald  win  v.  People,  1 
Scam.  304;  State  v.  Donnegan,  34  Mo.  67. 
Proof  of  stealing  a  lamb  w  ill  support  an  in- 
dictment for  stealing  sheep.  State  v.  Trott, 
2  Harr.  561 ;  and  an  indictment  for  stealing 
a  hog  will  be  supported  by  proof  that  the 
defendant  stole  a  shout.  State  v.  Godet,  7 
Ired.  310. 

315.  An  indictment  for  stealing  a  "  bull- 
tongue,"  was  held  to  be  supported  by  proof 
that  the  defendant  stole  a  particular  kind  of 
plowshare,  usually  known  in  the  ueighbor- 
borhood  in  which  lie  resided  by  that  name. 
State  V.  Clark,  8  Ired.  226. 

316.  Where  an  indictment  for  larceny  de- 
scribed the  property  stolen  as  a  silver  tea- 
pot and  a  silver  coffee-pot,  and  it  was 
proved  that  the  articles  stolen  were  plated 
ware,  consisting  of  only  about  one-twenty- 


400 


LAKCENY 


Evidence. 


Evidence  as  to  Property  Taken.     Proof  of  Place  of  Offense. 


fifth  part  silver,  it  was  held  that  the  va- 
riance was  not  material.  Goodall  v.  State, 
23  Ohio,  N.  S.  20-3;  s.  c.  1  Green's  Crim. 
Reps.  671. 

317.  Coin  alleged  to  be  stolen  is  not  capa- 
ble of  the  same  description  and  identifica- 
tion as  other  property,  and  therefore  the 
same  exactness  in  proof  is  not  required.  The 
jury  must  determine  -whether  the  coin 
proved  to  have  been  stolen  is  the  same  kind 
of  coin  as  that  charged  in  the  indictment ; 
and  when  several  kinds  are  stated  in  the  in- 
dictment, the  proof  should  show  that  one  or 
more  of  such  kinds  were  among  the  kinds  of 
coin  stolen.     People  v.  Linn,  23  Cal.  150. 

318.  Under  an  indictment  charging  that 
the  defendant  stole  gold  and  silver  coin  of 
the  value  of  two  thousand  dollars,  and  bank 
notes  of  the  value  of  five  thousand  dollars, 
the  denomination  and  nature  of  the  coin 
need  not  be  proved,  nor  the  date  of  the 
bank  notes,  the  bank  that  issued  them,  or 
the  person  to  whom  they  were  payable. 
Berry  V.  State,  10  Ga.  511. 

319.  When  description  is  essential  it 
must  be  proved  as  laid.  Where  an  ani- 
mal stolen  is  described  by  color  and  sex,  the 
description  must  be  supported  by  the  proof. 
Rowell  V.  Small,  30  Maine,  39.  Under  an 
indictment  for  stealing  a  steer,  there  cannot 
be  a  conviction  upon  proof  of  stealing  a 
bull.  State  v.  Royster,  65  K  C.  539.  But 
under  an  indictment  describing  the  animal 
as  a  bay,  it  was  held  suflScient  to  prove  that 
it  was  a  bay  or  red  sorrel.  Turner  v.  State, 
3  Heisk.  453 ;  s.  c.  1  Green's  Crim.  Reps. 
353. 

320.  An  indictment  for  larceny,  which  al- 
leges the  stealing  of  an  animal,  is  not  sup- 
ported by  proof  that  the  animal  was  dead 
when  stolen.     Com.  v.  Beaman,  8  Gray,  497. 

321.  An  indictment  for  stealing  l)ank  bills 
will  not  be  supported  by  proof  that  the  de- 
fendant stole  the  orders  of  a  railroad  com- 
pany on  its  treasurer.  Grummond  v.  State, 
10  Ohio,  510. 

322.  Where  the  indictment  charges  the 
stealing  of  a  plow,  and  it  is  proved  that 
the  defendant  stole  a  plowshare,  the  va- 
riance will  be  fatal.  State  v.  Cockfield,  15 
Rich.  316. 


323.  The  defendant  was  charged  with 
stealing  a  shovel-plow,  and  it  Avas  proved 
that  he  stole  the  rim  of  a  shovel-plow. 
Held  that  it  should  have  been  left  to  the 
jury  to  determine  whether  the  thing  stolen 
was,  according  to  common  understanding,  a 
shovel-plow,  as  laid  in  the  indictment. 
State  V.  Sansom,  3  Brev.  5, 

324.  The  defendant  was  convicted  of 
stealing  a  white  woolen  sheet,  ujDon  i^roof 
that  he  stole  a  blanket  made  of  cotton  and 
woolen — the  warp  being  cotton  and  the  fill- 
ing woolen.  Held,  that  the  conviction  could 
not  be  sustained.  Alkenback  v.  People,  1 
Denio,  80. 

325.  An  indictment  for  stealing  ''  one  pair 
of  boots  "  is  not  supported  by  proof  that  the 
defendant  stole  two  boots  unmatched,  being 
the  right  boot  of  two  pairs.  State  v.  Harris, 
3  Barring.  559. 

326.  To  support  an  indictment  for  stealing 
two  barrels  of  turpentine,  it  must  be  proved 
that  the  turpentine  was  in  barrels  when  it 
was  stolen.     State  v.  Moore,  11  Ired.  70. 

(c)  Proof  of  jjlace  of  offense. 

327.  Exact  proof  not  required.  Simple 
larceny  being  an  offense  not  local  in  its  na- 
ture, the  place  of  its  commission  is  not  ma- 
terial, if  in  the  county  alleged.  Where  the 
indictment  charged  a  larceny  in  a  building 
in  the  city  of  B.,  in  the  county  of  S.,  and  the 
jjroof  was  of  larceny  in  a  building  in  the 
city  of  C,  in  the  same  county,  it  was  held 
that  the  defendant  might  be  convicted  of 
simple  larceny,  but  not  of  larceny  in  a  build- 
ing.    Com.  V.  Lavery,  101  Mass.  307. 

328.  An  indictment  for  larceny  charged 
that  the  oflfense  was  committed  in  a  vessel  in 
the  First  Ward  of  the  city  of  New  York. 
It  was  proved  that  the  vessel  was  lying  in 
the  river  at  a  wharf  in  the  TMrd  Waixl. 
Held,  that  the  variance  w'as  not  material. 
People  V.  Honeyman,  3  Denio,  121. 

329.  Where  the  indictment  was  for  larceny 
in  "  a  certain  building  called  and  being  a 
shop,"  and  the  building  was  proved  to  be  a 
store,  it  was  held  that  the  variance  was  not 
material.  Com.  v.  Riggs,  14  Gray,  376.  And 
see  Com.  v.  Annis,  15  Gray,  197. 

330.  Where  an  indictment  for  larceny  al- 


LAECENY. 


401 


Evidence. 


Proof  of  Place  of  Offense.     Proof  of  Ownership  of  Property. 


leged  that  the  defendant  had  been  convicted 
of  similar  thefts  on  three  former  occasions, 
"  at  the  Municipal  Court,  begun  and  holden 
at  Portland,"  and  it  was  proved  that  these 
convictions  were  before  "the  Municipal 
Court  for  the  City  of  Portland,"  it  was  held 
there  was  no  variance.  State  v.  Eegan,  63 
Maine,  127. 

331.  But  an  indictment  for  larceny  from  a 
house  is  not  sustained  by  proof  of  stealing 
from  a  tent.  Callahan  v.  State,  41  Texas, 
43 ;  nor  by  proof  that  the  stolen  goods  were 
taken  while  hanging  outside  a  store  door. 
Martinez  v.  State,  lb.  126. 

332.  In  an  indictment  for  stealing  letters, 
the  description  of  the  termini  between 
which  letters  are  sent  by  the  post  is  ma- 
terial, and  must  be  proved  as  laid.  U.  S.  v. 
Foye,  1  Curtis  C.  C.  364. 

{d)  Proof  of  owner  ship  of  property. 

333.  How  made.  It  is  not  necessary  that 
the  person  whose  goods  are  charged  to  have 
been  stolen  should  swear  that  they  belonged 
to  him.  That  fact  may  be  proved  by  others. 
Lawrence  v.  State,  4  Yerg.  145. 

334.  A  written  receipt  for  the  purchase- 
money  of  stolen  goods,  in  the  possession  of 
the  alleged  owner,  is  competent  evidence  to 
show  title  or  ownership.  If  it  appear  from 
the  receipt  that  the  money  was  paid  by 
another  person,  as  agent  of  the  alleged 
owner,  parol  evidence  is  admissible  to  prove 
that  the  contract  was  made  by  the  agent  for 
his  principal.     Oakley  v.  State,  40  Ala.  372. 

335.  Where  stolen  bank  notes  have  been 
found  in  a  place  designated  by  the  prisoner, 
and  handed  to  the  jjerson  from  whom  they 
are  alleged  to  have  been  stolen,  the  prosecu- 
tion cannot  prove  that  the  latter  "  received 
them  as  his  own  ;"  nor  does  the  death  of  the 
alleged  owner  before  the  trial  render  such 
evidence  proper.     Sayres  v.  State,  30  Ala.  15. 

338.  The  testimony  of  a  consignee  that 
goods  were  sent  through  a  carrier  to  him  is 
sufficient  evidence  that  the  goods,  while  in 
the  hands  of  the  carrier,  are  in  the  construc- 
tive possession  of  the  consignee,  and  may  be 
submitted  to  the  jury  in  support  of  an  in- 
dictment charging  larceny  of  the  property 
26 


of  the   consignee.     Com.   v.    Sullivan,  104 
Mass.   552. 

337.  Proof  of  special  ownership  suffi- 
cient. The  goods  alleged  to  have  been  stolen 
may  be  proved  to  be  the  absolute  or  special 
property  of  him  who  is  charged  to  be  the 
owner.     State  v.  Furlong,  19  Maine,  225. 

338.  Where  it  was  proved  that  the  stolen 
property  was  taken  from  the  possession  of 
the  alleged  owner,  but  the  evidence  was  con- 
flicting as  to  the  character  of  his  possession, 
and  the  defendant  requested  the  court  to  in- 
struct the  jury,  "that  if  they  were  in  any 
doubt  whether  the  property  belonged  to  him 
or  to  the  government,  they  must  give  the  de 
fendant  the  benefit  of  the  doubt,  and  acquit 
him,"  which  charge  the  court  refused  to 
give  without  the  qualification,  "  that  if  he 
had  possession  of  the  property  as  agent  or  \ 
bailee,  they  should  convict  the  defendant,'^ 

it  was  held  that  there  was  no  error.     Miller 
V.  State,  40  Ala.  54. 

339.  An  indictment  for  stealing  a  watch 
alleged  that  it  was  the  property  of  A.  It 
was  proved  that  B.  was  the  general  owner 
of  the  watch,  but  that  he  had  exchanged  it 
with  A.  for  a  few  weeks,  and  that  it  was 
stolen  while  in  A.'s  possession.  Held^  that 
as  A.  had  a  special  property  in  the  watch, 
there  was  no  variance.  Yates  v.  State,  10 
Yerg.  549. 

340.  Proof  that  the  alleged  owner  of  the 
goods  stolen  bought  them  at  a  sheriflf's  sale 
subject  to  a  mortgage  after  condition 
broken,  and  that  he  had  the  rightful  pos- 
session, will  support  an  allegation  of  owner- 
ship.    Robinson  v.  State,  1  Kelly,  563. 

341.  Occupancy  of  a  house  is  sufficient 
evidence  of  ownership  to  sustain  the  allega- 
tion in  an  indictment  for  larceny,  that  the 
prisoner  entered  such  person's  dwelling- 
house.     Markham  v.  State,  25  Ga.  52. 

342.  An  indictment  for  the  larceny  of  a 
box  of  tobacco  charged  that  it  was  taken 
from  the  agent  of  the  steamship  company. 
It  was  proved  that  it  was  taken  from  the 
steamer,  and  had  never  been  in  the  posses- 
sion of  the  agent.  Held  that  the  variance 
was  fatal.     Radford  v.  State,  35  Texas,  15. 

343.  Property  held  in  trust.  Proof  that 
the  person  alleged  to  be  the  owner  held  the 


402 


LAECENY. 


Evidence. 


Proof  of  Ownership  of  Property. 


/ 


property  for  the  purpose  of  conveyance,  or 
in  trust  for  the  benefit  of  another,  will  sup- 
port an  allegation  of  ownership  in  an 
inilictment  for  larceny.  State  v.  Somerville, 
31  Maine,  14. 

344.  Where  an  indictment  described  the 
property  stolen  as  the  goods  and  chattels 
of  A.,  and  it  was  proved  that  they  were 
owned  by  B.,  and  that  A.  had  the  custody  of 
them  for  B.,  with  authority  to  sell  them 
and  account  to  B.  for  the  proceeds,  it  was 
held  no  variance.  People  v.  Smith,  1 
Parker,  829. 

345.  The  allegation  of  ownership,  in  a 
complaint  for  an  alleged  larceny  of  goods, 
is  sustained,  when  it  is  shown  that  the  com- 
plainant at  the  time  the  offense  was  com- 
mitted, held  jjossession  of  the  goods  under 
a  loan  from,  or  contract  with  the  owner. 
State  V.  Pettis,  63  Maine,  124,  Appleton,  C. 
J.,  and  Barrows,  J.,  dissenting. 

346.  Property  of  married  woman.  On  a 
trial  for  larceny,  the  ownership  of  the  prop- 
erty stolen  must  be  proved  as  laid.  Jones  v. 
Com.  17  Gratt.  563.  And  if  the  alleged 
owner  was  a  married  woman  at  the  time  of 
the  commission  of  the  offense,  it  is  error, 
and  the  prisoner  must  be  acquitted.  Hughes 
V.  Com.  lb.  565. 

347.  Under  an  indictment  for  larceny  in 
stealing  the  shawl  of  C,  it  was  proved  that 
the  shawl  was  the  property  of  the  wife  of  C, 
and  was  given  to  her  by  her  mother  after 
marriage.  Held  that  the  variance  was  fatal. 
Stevens  v.  State,  44  Ind.  469 ;  s.  c.  2  Green's 
Crim.  Reps.  717. 

348.  An  indictment  charged  the  stealing 
of  a  title  bond,  the  property  of  A.  It  was 
proved  that  the  bond  was  executed  to  A. 
and  B.,  who  were  husband  and  wife ;  that 
B.  had  died  leaving  one  child,  and  that  the 
bond  was  taken  from  the  possession  of  A. 
Held  that  the  variance  was  immaterial.  Dig- 
nowitty  v.  State,  17  Texas,  521. 

349.  An  information  for  stealing  a  cow 
alleged  that  it  was  the  property  of  A.  It 
was  proved  that  the  cow,  which  was  running 
at  large  when  stolen,  was  owned  by  A.'s 
mother-in-law,  who  was  old  and  nearly  blind, 
and  that  A.  had  the  entire  management  and 
control  of  her  joroperty.     Held  that  the  vari- 


ance was  ground  for  a  new  trial.     State  v. 
Washington,  15  Rich.  39. 

350.  Property  of  corporation.  On  the 
trial  of  an  indictment  for  stealing  the  prop- 
erty of  a  corporation  it  is  sufficient  to  prove 
that  the  company  known  by  the  name  given 
in  the  indictment  is  a  corporation  de  facto, 
doing  business  as  such.  People  v.  Barric, 
49  Cal.  342;  Smith  v.  State,  28  Ind.  821. 

351.  Joint  ownership.  An  indictment 
for  larceny,  alleging  that  the  goods  stolen 
were  the  property  of  A.,  is  not  sustained  by 
proof  that  they  are  the  property  of  A.  and 
B.,  who  are  partners,  and  were  stolen  while 
in  A.'s  possession.  Com.  v.  Trimmer,  1 
Mass.  476;  Hogg  v.  State,  3  Blackf  226; 
State  V.  McCoy,  14  New  Ham  p.  364 ;  State 
V.  Owens,  10  Rich.  169;  State  v.  London,  3 
Rich.  N.  S.  230 ;  State  v.  Burgess,  74  N.  C. 
272  ;  and  the  same  is  true  where  the  indict- 
ment charges  that  the  property  stolen  be- 
longed to  two,  and  the  proof  is,  that  it  be- 
longed only  to  one.  Brown  v.  State,  85 
Texas,  691. 

352.  In  Massachusetts,  under  the  statute 
(Genl.  Stats,  ch.  172,  §  12),  if  the  indictment 
charge  the  stealing  of  the  property  of  A., 
and  the  proof  is,  that  A.  and  B.  own  the 
property  as  tenants  in  common,  the  variance 
is  not  material.  Com.  v.  Arrance,  5  Allen, 
517. 

353.  When  stolen  goods  are  alleged  to  have 
belonged  to  three  executors,  a  conviction 
cannot  be  had  on  proof  that  the  ownership 
was  in  two  of  them  only.  Parmer  v.  State, 
41  Ala.  416. 

354.  Name  of  owner.  An  indictment  for 
larceny  charged  the  ownership  of  the  prop- 
erty to  be  in  A.  B.,  and  it  was  proved  that 
it  was  in  A.  B.,  Junior.  Held  that  the  vari- 
ance was  immaterial.  State  v.  Grant,  23 
Maine,  171. 

355.  Where  an  indictment  alleged  that 
the  property  stolen  belonged  to  Elizabeth 
Moore,  and  it  was  proved  to  be  the  property 
of  Betsey  Moore,  it  was  held  that  the  jury 
must  decide  whether  the  person  so  de- 
scribed was  known  by  both  names.  State  v. 
Godet,  7  Ired.  210. 

356.  The  defendant  was  charged  in  the 
indictment  with  stealing  the  goods  of  J.  H. 


LARCENY. 


403 


Evidence. 


Proof  of  Ownership  of  Property.     Proof  of  Value  of  Property. 


Dargin.  It  was  proved  that  his  name  was 
John  H.  Dargin,  but  that  he  was  frequently 
called  J.  H.  Dargin,  and  signed  his  name  J. 
H.  Dargin.  Held  sufficient.  Thompson  v. 
State,  48  Ala.  165. 

357.  But  where  an  indictment  charged 
the  stealing  of  Stephen  Daniel's  hog,  and  it 
was  proved  that  the  defendant  stole  Philip 
Daniel's  hog,  it  was  held  that  the  variance 
was  fatal.  Hensley  v.  Com.  1  Bush,  Ky. 
11. 

(e)  Proof  of  value  of  property. 

358.  Genuineness  of  bank  note  must  be 
shown.  On  a  trial  for  stealing  a  bank  note, 
it  must  be  proved  that  the  note  was  genuine. 
State  V.  Dobson,  3  Harring.  503;  State  v. 
Smart,  4  Rich.  356. 

359.  Genuineness  of  bank  bills,  how 
proved.  Under  an  indictment  for  stealing 
bank  bills,  proof  that  similar  bills  were  re- 
ceived and  passed  away  in  the  ordinary 
course  of  business,  as  a  part  of  the  currency 
of  the  country,  would  be  presumptive  evi- 
dence of  the  existence  of  the  bank,  and  of  the 
genuineness  of  the  bills.  Johnson  v.  Peo- 
ple, 4  Denio,  364;  Fallon  v.  People,  3  N.  Y. 
Ct.  of  Appeals  Decis.  83;  s.  c.  2  Keyes, 
145. 

360.  On  the  trial  of  an  indictment  for  the 
larceny  of  foreign  bank  bills,  their  genuine- 
ness and  value  may  be  proved  by  the  person 
from  whom  they  were  stolen,  to  the  effect 
that  he  received  and  passed  them  in  the 
course  of  trade  at  their  nominal  value,  and 
by  the  testimony  of  others,  that  such  bills 
circulated  as  money  in  the  community. 
Corbett  v.  State,  31  Ala.  329. 

361.  On  a  trial  for  the  larceny  of  bank 
bills,  the  testimony  of  a  person  that  he  re- 
ceived the  bills  in  another  State,  and  that 
they  were  the  bills  of  banks  there,  is  admis- 
sible to  show  that  they  were  of  value,  and 
current  in  the  State  where  the  trial  is  had. 
Com.  V.  Stebbins,  8  Gray,  493. 

362.  Where  on  the  trial  of  an  indictment 
for  grand  larceny,  a  witness  testified  that 
the  bills  stolen  "  were  of  the  currency  or- 
dinarily known  as  greenbacks,"  and  that 
they  were  of  the  denomination  of  one  hun- 
dred dollar   bills   of    that  currencv,  it  was 


held  that  there  was  sufficient  evidence  of 
the  genuineness  and  value  of  the  bills  to 
sustain  the  judgment.  Remsen  v.  People, 
57  Barb.  334. 

363.  Evidence  that  the  defendant  stole  a 
bank  note,  and  passed  it  as  genuine,  is  suffi- 
cient proof  that  it  was  of  value.  Cummings 
V.  Com.  2  Va.  Cas.  135.  And  on  a  trial  for 
stealing  bank  bills  from  M.,  it  was  held 
proper  to  refuse  to  charge  that  the  fact  that 
they  had  been  paid  to  him  for  services  and 
received  by  him  in  payment,  was  no  evi- 
dence that  they  were  genuine  and  of  a  cer- 
tain value.  The  presumption  in  such  case 
is  that  the  bills  are  genuine  and  of  the 
value  they  purport,  and  the  onus  of  showing 
the  contrary  is  on  the  prisoner.  People  v. 
Fallon,  6  Parker,  356 ;  affi'd  2  K  Y.  Ct.  of 
App.  Decis.  83. 

364.  Proof  of  genuineness  of  bank  bills 
presumed.  Although  evidence  that  bank 
bills  of  certain  denominations  were  taken, 
without  proof  that  they  were  genuine  cir- 
culating media,  will  not  sustain  a  conviction 
for  larceny,  yet  where  the  bill  of  exceptions 
does  not  contain  all  the  evidence,  it  will  be 
presumed  that  proof  of  the  genuineness  was 
given  on  the  trial.  The  defendant  was  in- 
dicted for  robbery  and  stealing  from  the 
person,  a  wallet  of  the  value  of  one  dollar, 
twenty-four  promissory  notes  (commonly 
called  bank  bills),  of  national  currency  is- 
sued by  divers  banking  associations,  to  the 
jurors  unknown,  of  the  value  in  the  aggre- 
gate of  fifty-one  dollars.  All  the  proof  there 
was  of  the  kind  or  amount  of  money  was 
that  it  consisted  of  three  ten  dollar  bills, 
four  five  dollar  bills,  and  a  one  dollar  bill. 
There  was  no  proof  as  to  the  person  or  cor- 
poration by  whom  they  were  issued,  or 
whether  they  were  genuine.  Held  that  un- 
less this  defect  was  cured  by  the  omission  of 
the  prisoner's  counsel  to  raise  the  objection 
that  there  was  not  sufficient  proof  of  the 
value  of  the  property  to  render  the  crime 
grand  larceny,  it  was  fatal  to  the  verdict. 
Higgins  V.  People,  7  Lans.  110. 

365.  Proof  of  contents  of  bank  bills. 
On  the  trial  of  an  indictment  for  the  larceny 
of  bank  bills,  parol  evidence  of  the  contents 
of   the   bills  stolen    is   admissible,  without 


404 


LAKCENY. 


Evidence. 


Proof  of  Value  of  Property.         Presumptive  Evidence. 


accounting  for  their  non-production.     Peo- 
ple V.  Ilolbrook,  18  Johns.  90. 

366.  Value  of  goods  stolen,  how  proved. 
On  a  trial  for  larceny,  tlie  stolen  goods  may 
be  exhibited  to  the  owner  before  he  is  re- 
quired to  testify  in  relation  to  them ;  and 
when  examined  as  a  witness,  he  may  refresh 
his  recollection  as  to  the  value  of  the  articles 
from  a  schedule  made  by  his  clerk  in  his 
presence  and  under  his  direction  and  inspec- 
tion.    State  V.  Lull,  37  Maine,  246. 

367.  Where  the  punishment  of  the  ofTense 
charged  (larceny  from  the  person),  did  not 
depend  on  the  value  of  the  articles  taken, 
it  was  held  that  proof  of  value  was  unnec- 
essary, and  that  the  jury  might  ascertain 
Avhether  or  not  the  articles  were  of  any 
value  by  inspecting  them.  Com.  v.  Burke, 
12  Allen,  182. 

368.  Where  articles  of  different  kinds  are 
alleged  to  have  been  stolen,  and  only  the 
collective  value  of  the  whole  is  averred, 
there  can  be  no  conviction  upon  jiroof  of 
stealing  either  description  of  property  alone. 
This  rule  is  also  applicable  to  indictments 
for  robbery.     Com.  v.  Cahill,  12  Allen,  540. 

369.  Value  inferred.  On  a  trial  for  steal- 
ing a  horse,  the  fact  that  the  horse  was  of 
some  value,  is  sutKciently  established  by 
proof  of  facts  from  which  the  jury  may  infer 
it;  as  where  the  prisoner  said  he  borrowed 
the  horse,  and  again  that  he  stole  it,  it 
might  be  inferred  that  the  animal  was  of 
some  value,  as  no  one  would  borrow  or  steal 
a  worthless  horse ;  so  evidence  that  a  wit- 
ness went  one  hundred  miles  to  hunt  the 
horse  after  he  was  stolen,  would  tend  to 
prove  that  he  was  of  some  value,  as  one 
would  hardly  go  so  far  for  a  worthless 
horse  ;  so  proof  that  the  horse  possessed  the 
power  of  locomotion,  and  traveled  a  hun- 
dred miles  and  back  again,  would  go  to 
establish  the  fact  that  he  was  of  some  value. 
Houston  V.  State,  8  Eng.  66. 

(/)  Presumptive  evidence. 

370.  Handwriting.  On  the  trial  of  an 
indictment  for  larceny  committed  by  falsely 
personating  the  owner  of  the  property,  evi- 
dence that  the  signature  to  the  receipt  for 
the  articles  was  in  the  handwriting  of  the 


defendant  is  admissible  to  identify  him  as 
the  person  who  had  falsely  personated  the 
owner  and  obtained  the  articles;  and  it  is 
no  objection  to  its  admissibility  for  this 
purpose  that  it  also  proved  him  guilty  of 
another  offense.  Com.  v.  Lawless,  103  Mass. 
425. 

371.  Foot-prints.  An  ofl5cer  may  lawfully 
take  off  the  boots  or  shoes  of  a  person  ar- 
rested on  a  charge  of  larceny,  and  compare 
them  with  foot-prints,  and  testify  on  the  trial 
as  to  the  result  of  the  comparison  thus 
made.     State  v.  Graham,  74  K  C.  646. 

372.  Possession  by  defendant  of  other 
property.  On  a  trial  for  larceny,  it  may  be 
proved  that  goods  not  described  in  the  in- 
dictment were  taken  at  the  same  time  and 
found  in  the  defendant's  possession;  and 
the  jury  may  take  to  their  room,  with  the 
goods  alleged  to  have  been  stolen,  the  goods 
that  were  taken  at  the  same  time.  Com.  v. 
Riggs,  14  Gray,  376. 

373.  Where  on  a  trial  for  grand  larceny, 
two  of  the  notes  which  the  defendant  stole 
which  were  of  an  amount  sutficient  to  consti- 
tute the  offense,  were  described  in  the  indict- 
ment with  particularity,  it  was  held  that 
evidence  as  to  other  bills  and  coin  not  suffi- 
ciently descriijed  was  admissible  among  the 
circumstances  attending  the  offense,  though 
a  conviction  could  only  be  had  as  to  the 
property  of  which  there  was  a  sufficient  de- 
scription. Haskins  v.  People,  16  N.  Y.  344. 
See  Quinlan  v.  People,  6  Parker,  9. 

374.  On  the  trial  of  an  indictment  for  lar- 
ceny, evidence  having  been  introduced  tend- 
ing to  show  that  the  trunk  in  which  the 
stolen  goods  were  found  belonged  to  the 
defendant,  it  was  held  that  envelopes  di- 
rected to  him,  and  a  pardon  found  in  the 
trunk,  were  admissible  as  tending  to  prove 
the  defendant's  connection  with  the  goods. 
State  V.  Lull,  37  Maine,  246. 

375.  Embarrassed  circumstances  of  the 
defendant.  The  fact  that  the  defendant  was 
in  embarrassed  circumstances  at  the  time  of 
the  theft,  is  proper  to  be  submitted  to  the 
jury  as  a  circumstance,  taken  in  connection 
with  the  other  evidence,  affording  a  pre- 
sumption of  his  guilt.  Bullock  v.  State,  1© 
Ga.  46. 


LAECENY 


405 


Evidence. 


Presumptive  Evidence. 


376.  On  a  trial  for  stealing  a  horse  and 
buggy,  a  witness  for  the  defendant  testified 
that  the  team  which  the  defendant  had  was 
bought  by  J.  C.  Held  corupetent  for  the 
prosecution  to  show  that  J.  C.  was  on  the 
jail  limits  for  debt,  had  failed  in  business 
and  had  no  visible  means  of  support.  State 
V.  Cameron,  40  Vt.  555. 

377.  Acts  of  defendant.  On  the  trial  of 
an  indictment  for  larceny  in  a  hotel,  the 
prosecution  may  prove  the  presence  of  the 
prisoner  in  the  hotel  on  the  night  of  the 
larceny,  and  his  acts  and  conduct  there,  and 
the  circumstances  attending  Ms  arrest,  as  a 
part  of  the  res  gestce,  though  these  acts  only 
show  an  attempt  to  commit  a  felony  on  an- 
other person  in  another  jjart  of  the  hotel. 
Burr  V.  Com.  4  Graft.  534. 

378.  On  a  trial  for  stealing  a  bullock,  it 
is  competent  for  the  jury  to  consider  the 
fact  that  the  ears  and  brand  were  cut  off  and 
hid,  in  connection  with  other  facts  proved, 
in  order  to  determine  whether  the  defendant 
intended  to  steal  the  animal,  the  carcass  of 
which  was  found  in  his  possession.  People 
V.  Murphy,  47  Cal.  103. 

379.  Where  on  the  trial  of  an  indictment 
for  larceny,  the  evidence  tended  to  prove 
that  the  defendant,  at  the  time  the  offense 
was  committed,  was  acting  in  concert  with 
a  confederate,  that  he  was  in  the  entry  of 
his  own  house  at  an  unusual  hour  of  the 
morning,  with  a  light  in  his  hand ;  and  that 
he  met  the  thief  as  he  came  down  stairs,  and 
received  from  him  a  pocket-book  containing 
money  which  had  been  stolen  from  a  lodger 
in  the  house,  it  was  held  that  he  might  be 
convicted  as  a  principal.  Com.  v.  Lucas,  2 
Allen,  170. 

380.  On  a  trial  for  larceny,  the  evidence 
tended  to  show  a  conspiracy  between  the 
prisoner  and  his  accomplice,  to  steal  the 
prosecutor's  watch,  and  afterwards  to  meet 
and  divide  the  profits.  Held  competent  for 
the  prosecution  to  prove  that  the  accomplice 
having  stolen  the  watch,  afterwards  paid 
double  toll  at  a  bridge  on  the  direct  road  to 
the  place  at  which  he  and  the  prisoner  were 
to  meet.     Scott  v.  State,  30  Ala.  503. 

381.  On  a  trial  for  the  larceny  of  a  hog, 
the  only  witness  in  the  case  testified  that  he 


heard  the  report  of  a  gun  in  the  woods,  and 
immediately  afterward  heard  a  hog  squeal ; 
that  he  saw  the  defendant  chase  the  hog 
about  one  hundred  yards,  and  that  he  was 
in  the  act  of  striking  it  with  his  gun  when 
the  witness  asked  him  what  he  was  doing ; 
and  that  he  replied,  he  had  shot  at  a  squir- 
rel and  hit  the  hog,  and  wanted  to  see 
where  the  hog  was  shot.  Held  that  this  did 
not  prove  larceny.  Wolf  v.  State,  41  Ala. 
412. 

382.  Defendant  pointing  out  stolen 
property.  When  a  person  charged  with 
larceny,  shortly  after  its  commission,  points 
out  the  place  where  the  stolen  property  is 
concealed,  he  must  be  deemed  the  thief,  un- 
less he  can  reconcile  his  knowledge  with 
his  innocence.  Hudson  v.  State,  9  Yerg. 
408. 

383.  On  a  trial  for  horse  stealing,  the  pros- 
ecution was  allowed  to  prove  that  immedi- 
ately after  the  arrest  of  the  prisoner,  one  C. 
conducted  the  witness  to  the  horses.  Held 
that  such  proof  was  proper  without  showing 
a  conspiracy  between  the  prisoner  and  C.  to 
steal  the  horses.  Held  also  that  it  was 
proper  to  show  what  was  said  by  C.  in  re- 
lation to  the  taking  of  the  horses,  in  the 
presence  and  hearing  of  the  defendant,  al- 
though the  latter  remained  silent.  State  v. 
Bowers,  17  Iowa,  46. 

384.  Taking  by  defendant  of  other 
goods.  The  admission  of  evidence  on  a 
trial  for  grand  larceny,  that  the  accused 
took  a  wagon  on  the  same  night  from  an- 
other person,  is  not  error,  the  taking  of  a 
wagon  under  such  circumstances  being  cor- 
roborative of  the  main  charge.  Phillips  v. 
People,  57  Barb.  353 ;  affd  42  N.  Y.  200. 

385.  On  the  trial  of  an  indictment  for 
stealing  R.'s  sheep,  the  testimony  of  W., 
that  his  sheep  and  those  of  R.  which  herded 
together,  were  driven  oft'  together  by  the 
same  parties,  and  sold  together  by  the  par- 
ties driving  them  off,  is  admissible  as  tend- 
ing to  prove  the  larceny  of  R.'s  sheep.  Peo- 
ple V.  Robles,  34  Cal.  591. 

386.  On  the  trial  of  an  indictment  for 
larceny  in  retaining  jewelry  which  the  pris- 
oner had  obtained  from  K.  &  Co.,  for  the 
purpose  of  showing  it  to  a  customer,  with 


406 


LAKCENY. 


Evidence. 


Presumptive  Evidence. 


the  understanding  that  he  should  return  the 
articles  unsold,  and  the  money  lor  such  as 
■were  sold,  the  prosecution  were  allowed  to 
prove  that  the  prisoner  on  the  same  day  and 
the  day  following  that  on  which  he  pro- 
cured the  jewelry  from  K.  &  Co.,  in  the 
same  way  jirocured  other  jewelry  from  other 
persons,  Avhich  he  appropriated  to  his  own 
use.  Held  that  the  evidence  was  proper  to 
show  felonious  intent.  Weyman  v.  People, 
6  N.  Y.  Supm.  N.  S.  696, 

387.  Commission  of  distinct  larceny. 
It  is  error  on  a  trial  for  larceny  to  permit  the 
prosecution  to  prove  that  just  before  the 
larceny  charged,  the  defendant  committed 
another  larceny.  Barton  v.  State,  18  Ohio, 
221. 

388.  On  the  trial  of  an  indictment  for  the 
larceny  of  a  watch,  it  is  competent  to  prove 
that  the  prisoner  at  another  time  stole  a 
cloak.     Walker's  Case,  1  Leigh,  574. 

389.  Association  with  horse  thieves,  or  a 
subsequent  conspiracy  to  steal  horses,  cannot 
be  proved  on  a  trial  for  horse  stealing. 
Cheny  v.  State,  7  Ohio,  222. 

390.  Flight  of  defendant.  On  the  trial 
of  an  indictment  for  larceny,  the  court 
charged  the  jury,  that  if  they  believed  that 
the  defendant  fled  because  he  was  accused 
of  the  crime,  it  was  a  suspicious  circum- 
stance, which  it  was  for  him  to  explain,  but 
that  they  must  find  that  it  was  a  flight; 
that  the  burden  of  proof  was  on  the  prose- 
cution ;  and  that  even  if  the  defendant  could 
not  explain  his  flight,  they  need  not  neces- 
sarily find  him  guilty.  Com.  v.  Annis,  15 
Gray,  197. 

391.  Return  of  defendant.  Where  on  the 
trial  of  an  indictment  for  stealing  letters  and 
packages  from  the  mail,  it  appeared  that 
the  defendant,  when  it  was  made  known  to 
him  that  he  was  suspected,  although  in  a 
distant  State,  immediately  returned  to  his 
former  residence  and  demanded  a  full  in- 
vestigation of  the  charge,  it  was  held  that 
this  circumstance  together  with  proof  of  his 
good  character  was  entitled  to  the  con- 
sideration of  the  jury,  unless  the  evidence 
of  guilt  was  clear  beyond  a  reasonable  doubt. 
U.  S.  V.  Crow,  1  Bond,  51. 

392.  Possession    of     stolen     property. 


According  to  the  weight  of  authority,  the 
fact  that  stolen  property  is  found  soon  after 
the  offense,  in  the  possession  of  the  accused, 
{?,  prima  facie  evidence  of  his  guilt.  People 
V.  Preston,  1  Wheeler's  Crim.  Cas.  41 ;  State 
v.  Merrick,  19  Maine,  398;  State  v.  Wolfi", 
15  Mo.  168 ;  State  v.  Bruin,  34  lb.  537 ;  State 
V.  Gray,  37  lb.  463 ;  State  v.  Williams,  54 
lb.  170 ;  State  v.  Smith,  2  Ired.  402  ;  State  v.. 
Williams,  9  lb.  140;  State  v.  Brewster,  7 
Vt.  122;  Hughes  v.  State,  8  Humph.  75; 
Pennsylvania  v.  Myers,  Addis.  320 ;  State  v. 
Weston,  9  Conn.  527;  Fuller  v.  State,  48 
Ala.  273;  Unger  v.  State,  43  Miss.  642; 
State  V.  Millain,  3  Nev.  409 ;  State  v.  Cassady, 
12  Kansas,  550;  Atzroth  v.  State,  10  Fla. 
207;  Wise  v.  State,  24  Ga.  31;  State  v.. 
Turner,  65  N.  C.  592. 

393.  Where  the  thief  is  found  in  posses- 
sion of  goods  in  a  certain  State,  the  pre- 
sumption is  that  the  larceny  was  committed 
in  that  State.  Simpson  v.  State,  4  Humph. 
456. 

394.  Possession  of  stolen  property  must 
have  been  recent.  To  justify  the  pre- 
sumption that  the  possessor  of  stolen  goods 
is  the  thief,  they  must  have  been  found  in 
his  possession  so  recently  after  the  theft 
that  it  is  reasonable  to  suppose  he  stole  them. 
State  V.  Graves,  72  K  0.  482.  What  is  a 
recent  possession  is  a  question  for  the  jury. 
Price  V.  Com.  21  Gratt.  846. 

395.  Where  on  a  trial  for  larceny,  it  ap- 
peared that  the  property  was  stolen  the  first 
of  November,  and  found  in  the  possession 
of  the  defendant  in  December,  it  was  held 
incumbent  on  him,  in  order  to  exonerate 
himself  from  the  imputation  of  guilt,  to 
account  for  his  possession.  Mondragon  v. 
State,  33  Texas,  480. 

396.  The  presumption  of  guilt  from  the 
possession  of  stolen  property  is  not  rebutted 
by  the  lapse  of  two  months  between  the 
theft  and  the  finding.  State  v.  Bennett,  3 
Brev.  514;  s.  c.  2  Const.  R.  692.  In  Ten- 
nessee, it  was  held  that  the  possession  of  a 
stolen  horse  two  months  after  the  theft 
did  not,  even  if  unexplained,  raise  a  con- 
clusive presumption  of  the  possessor's  guilt. 
Curtis  V.  State,  6  Cold.  9. 

397.  On   the   trial  of  an  indictment  for 


LARCENY. 


407 


Evidence. 


Presumptive  Evidence. 


stealing  a  package  of  bank  bills  in  December, 
it  was  held  thaf  proof  that  two  of  the  bills 
(which  were  identified),  each  of  the  de- 
nomination of  one  hundred  dollars,  were 
in  the  defendant's  possession,  one  of  them 
in  March,  and  the  other  in  April  following, 
might  be  submitted  to  the  jury,  as  evidence 
that  he  stole  the  whole  package ;  and  that 
even  if  none  of  the  stolen  bills  had  been 
identified,  yet  testimony  to  prove  that  the 
defendant,  after  the  larceny,  was  in  posses- 
sion of  two  one  hundred  dollar  bills,  similar 
to  those  that  were  stolen,  and  also  a  large 
amount  of  other  bank  bills,  and  that  he  was 
destitute  of  money  before  the  larceny,  was 
admissible  in  connection  with  other  ac- 
companying circumstances  indictative  of 
guilt.      Com.  V.  Montgomery,  11  Mete.  534. 

398.  Possession  of  stolen  property,  how 
regarded  in  the  different  States.  In  New 
York,  the  exclusive  possession  of  the  whole, 
or  of  some  part  of  the  stolen  property  by 
the  prisoner,  recently  after  the  theft,  is  suf- 
ficient, when  standing  alone,  to  cast  upon 
him  the  burden  of  explaining  now  he  came 
by  it,  or  of  giving  some  explanation,  and  if 
he  fail  to  do  so,  to  warrant  the  jury  in 
convicting  him  of  the  larceny ;  or  of  burg- 
lary, where  that  is  the  offense  proved. 
Knickerbocker  V.  People,  43  K  Y.  177. 

399.  Where  a  larceny  was  committed 
during  the  night,  and  the  property  was 
found  in  the  possession  of  the  defendant  at 
half  past  three  o'clock  in  the  morning,  it 
was  held  not  erroneous  for  the  court  to 
refuse  to  charge  the  jury,  that  the  mere 
possession  of  the  stolen  property  was  not 
prima  facie  evidence  of  the  commission  of 
the  larceny  by  the  defendant.  Dillon  v. 
People,  4  N.  Y.  Supm.  N.  S.  203 ;  8  lb.  670. 

400.  In  North  Carolina,  the  presumption 
of  guilt  arising  from  the  possession  of  stolen 
property  only  applies  when  the  evidence 
tends  to  show  that  the  property  came  into 
the  possession  of  the  accused  by  his  own  act 
or  concurrence.  Where,  therefore,  the  de- 
fendant and  his  two  sons  were  indicted  for 
stealing  tobacco  in  the  night,  and  it  was 
proved  that  the  stolen  tobacco  was  found 
the  next  day  in  the  defendant's  outhouse, 
which  was  occupied  by  one  of  his  negroes, 


and  in  which  the  defendant  kept  his  own 
tobacco,  and  that  he  claimed  to  own  the 
tobacco  so  found,  though  proved  to  be  the 
stolen  tobacco,  it  was  held  erroneous  for  the 
court  to  instruct  the  jury  that  "the  posses- 
sion of  the  stolen  tobacco  raised  a  strong 
presumption  of  the  defendant's  guilt."  State 
V.  Smith,  3  Ired.  403. 

401.  In  Indiana,  it  has  been  held  that  if, 
on  the  trial  of  an  indictment  for  larceny,  the 
jury  find,  from  the  evidence,  that  the  prop- 
erty described  in  the  indictment,  or  some 
portion  of  it,  was  stolen,  and  that  it  was 
soon  thereafter  found  in  the  possession  of 
the  defendant,  who  failed  to  account  for  its 
possession,  or  who  gave  a  false  account  of 
his  possession,  it  is  their  duty  to  find  him 
guilty,  unless  such  possession  is  explained 
by  the  attending  circumstances,  or  from  his 
character  or  habits  of  life  they  have  a 
reasonable  doubt  of  his  guilt.  Smathers  v. 
State,  46  Ind.  447.  See  Tuberville  v.  State, 
43  lb.  490 ;  Jones  v.  State,  49  lb.  549. 

402.  On  a  trial  for  stealing  a  horse,  the 
court  charged  the  jury  as  follows:  "  If  the 
projoerty  stolen,  or  a  portion  of  it,  was  found 
in  the  possession  of  the  defendant  a  short 
time  after  the  larceny,  it  would  be  your  duty 
to  find  the  defendant  guilty,  unless  he  satis- 
fies you,  from  the  evidence,  that  he  came  by 
the  horse  honestly."  Held  that  the  court 
should  have  told  the  jury  that  they  might 
instead  of  that  they  should  find  the  defend- 
ant guilty;  that  the  defendant  was  not 
bound  to  satisfy  the  jury  that  he  came  hon- 
estly by  the  property  alleged  to  have  been 
stolen,  but  only  to  raise  a  reasonable  doubt 
whether  he  had  not  so  come  by  it.  Hall  v. 
State,  8  Ind.  439.  See  Engleman  v.  State,  2 
lb.  91. 

403.  In  Illinois,  possession  of  property 
soon  after  it  is  stolen  is  not  of  itself  prima 
facie  evidence  that  it  was  stolen  by  the  de- 
fendant. Everything  connected  with  the 
possession  must  be  considered,  such  as  its 
proximity  to  the  larceny;  whether  it  was 
concealed ;  whether  the  party  admitted  or 
denied  the  possession  ;  whether  other  persons 
had  access  to  the  place  where  it  was  found; 
the  demeanor  of  the  accused,  and  his  good 
character.     Conkwright  v.    People,  35  111. 


408 


LAKCENY. 


Evidence. 


Presumptive  Evidence. 


204.  If  the  j)ossession  is  recent  after  the 
theft,  and  there  are  no  attendant  circum- 
stances, or  other  evidence  to  rebut  the  pre- 
sumption, or  to  create  a  reasonable  doubt  of 
guilt,  the  mere  fact  of  such  possession  will 
warrant  a  conviction.  Comfort  v.  People, 
54  111.  404. 

404.  In  Michigan,  on  a  trial  for  larceny, 
the  jury  were  told  that  they  might  consider 
as  evidence  of  guilt  the  recent  possession  of 
the  stolen  property  by  the  defendant,  coupled 
with  the  fact  that  he  was  in  a  situation  to 
steal  it ;  that  the  circumstances  did  not  ex- 
plain how  he  came  in  -possession  by  any 
honest  course,  and  that  he  was  in  a  position 
to  account  for  his  possession,  if  it  was  an 
honest  one.  Held  proper.  People  v.  Wilson, 
30  Mich.  486. 

405.  In  Wisconsin,  on  the  trial  of  an  in- 
dictment for  larceny,  the  court  charged  the 
jury,  that  if  within  a  short  time  after  the 
theft  the  stolen  property  was  found  in  the 
possession  of  the  prisoner,  the  burden  was 
on  him  to  show  how  he  came  by  it,  other- 
wise, he  might  be  presumed  to  have  ob- 
tained it  feloniously;  that  such  presump- 
tion might  be  rebutted  by  the  circumstances 
proved ;  that  it  was  a  presumption  of  fact, 
and  if  the  evidence  led  to  a  reasonable 
doubt  whether  it  was  well  founded,  that 
doubt  would  avail  in  favor  of  the  accused. 
Held  correct.  Crilley  v.  State,  30  Wis. 
231. 

406.  Iir  Alabama,  it  was  held  that  a  charge 
to  the  jury  on  the  trial  of  an  indictment  for 
stealing  a  horse,  that  the  recent  possession 
by  the  accused,  of  the  property  taken,  un- 
explained, was'  evidence  of  guilt,  was  not 
erroneous.  Maynard  v.  State,  46  Ala.  85. 
But^such  possession  is  not  conclusive  evi- 
dence of  guilt..   Fisher  v.  State,  lb.  717. 

407.  In  Tennessee,  where,  on  a  trial  for 
larceny,  nothing  more  is  proved  than  that 
the  goods  were  stolen,  and  that  they  were 
shortly  thereafter  found  in  the  possession  of 
the  defendant,  the  burden  of  proof  is  cast 
upon  him,  and,  if  unexplained  by  positive 
evidence,  by  the  circumstances,  or  by  the 
character  and  habits  of  life  of  the  defend- 
ant, the  presumption  of  his  guilt  becomes 
conclusive.     Hughes  v.  State,  8  Humph.  75 ; 


State    V.    Brewster,    7    Vt.  118;    State   v. 
Weston,  9  Conn.  527. 

408.  In  California,  a  person  cannot  be  con- 
victed of  larceny  upon  mere  proof  of  pos- 
session of  the  stolen  property.  People  v. 
Chambers,  18  Cal.  382.  It  is  therefore  error 
in  the  court  to  instruct  the  jury  that  such 
possession  casts  the  burden  of  proof  upon 
the  defendant.  People  v.  Ah  Ki,  20  lb.  177. 
And  the  rule  is  not  changed  by  the  absence 
of  proof  of  good  character.  People  v.  Gass- 
away,  28  Cal.  51.  But  proof  of  possession, 
together  with  proof  of  other  circumstances 
indicative  of  guilt,  would  make  a  prima 
facie  case  against  the  defendant,  and  there- 
upon the  burden  of  proof  would  be  shifted 
to  the  defendant.  People  v.  Antonio,  27 
Cal.  404 ;  People  v.  Kelly,  28  lb.  423 ;  Peo- 
ple V.  Gill,  45  lb.  285. 

409.  Although  the  possession  of  money  of 
the  same  kind  as  that  which  was  recently 
stolen  is  usually  of  slight,  if  any  weight,  as 
evidence  to  prove  the  guilt  of  the  person  in 
whose  possession  it  is  found,  yet  it  is  of 
greater  signiiicance  when  that  kind  of 
money  is  rarely  seen  in  circulation  at  that 
place.     People  v.  Getty,  49  Cal.  581. 

410.  Where  money  is  stolen,  proof  that  a 
part  of  it  on  the  following  day  was  found  on 
the  person  of  the  accused,  is  sufficient  cor- 
roborating evidence  to  sustain  a  conviction 
on  the  testimony  of  an  accomplice.  People 
V.  Melvane,  39  Cal.  614. 

411.  The  facts  that  on  the  morning  after 
the  larceny  of  a  horse,  the  animal  was  found 
in  the  defendant's  possession  under  circum- 
stances which  were  suspicious,  and  that  he 
immediately  removed  the  horse  to  another 
place,  and  gave  an  assumed  name,  sufficient- 
ly corroborate  the  testimony  of  an  accom- 
plice to  sustain  a  conviction.  People  v. 
Cleaveland,  49  Cal.  577. 

412.  In  Nevada,  it  has  been  held  that 
when  property  recently  stolen  is  found  in  the 
possession  of  a  person  accused  of  the  theft, 
the  accused  is  bound  to  explain  the  posses- 
sion in  order  to  remove  its  effect  as  a  circum- 
stance indicative  of  guilt.  In  such  case,  the 
prosecution  may  show  that  the  accused  has 
made  different   statements    concerning  the 


LARCENY. 


409 


Evidence. 


Presumptive  Evidence. 


manner  in   which   the   possession   was   ac- 
quired.    State  V.  I.  En,  10  Nev.  277. 

413.  In  New  Hampshire,  the  law  does  not 
presume  guilt  from  the  exclusive  possession 
of  property  recently  stolen.  State  v.  Hodge, 
50  New  Hamp.  510.  In  Iowa,  it  has  been 
held  that  the  mere  possession  of  stolen  prop- 
erty shortly  after  a  burglary,  is  not  prima 

facie  evidence  of  guilt.     State  v.  Reid,  20 
Iowa,  413. 

414.  Fact  of  possession  of  stolen  prop- 
erty to  go  to  jury.  The  recent  possession 
of  stolen  property  is  a  circumstance  to  be 
submitted  to  the  jury,  in  connection  with 
other  evidence  of  guilt.  The  court  cannot 
properly  say,  in  any  case,  that  evidence  of 
good  character,  or  the  fact  that  the  posses- 
sion was  undisguised  and  open,  is  a  satis- 
factory explanation.  State  v.  Hogard,  12 
Minn.  293 ;  Yates  v.  State,  37  Texas,  202 ; 
State  V.  "Williams,  2  Jones,  194;  State  v. 
Shaw,  4  lb.  440. 

415.  An  instruction  to  the  juiy,  in  sub- 
stance, that  from  proof  that  property  had 
been  stolen,  and  recently  thereafter  found  in 
the  possession  of  the  accused,  which  posses- 
sion was  unexplained  by  him,  it  was  a  pre- 
sumption of  law  that  such  property  had 
been  feloniously  stolen  by  him,  is  erroneous. 
But  where  the  jury  were  afterward  directed 
to  consider  the  question  as  one  of  fact,  not 
only  upon  this  but  other  proof  in  the  case,  it 
was  held  that  the  error  was  obviated.  Stover 
v.  People,  56  N.  Y.  315. 

416.  Charging  the  jury  that  "  the  posses- 
sion of  stolen  property  is  not  alone  sufficient 
to  convict,"  and  "  it  is  merely  a  guilty  cir- 
cumstance which,  taken  in  connection  with 
other  testimony,  is  to  determine  the  question 
of  guilt,"  is  not  erroneous  on  account  of  the 
expression  "  guilty  circumstance."  People 
V.  Rodundo,  44  Cal.  538;  s.  c.  2  Green's 
Crim.  Reps.  411. 

417.  Possession  of  stolen  property  may 
be  explained.  Although  the  possession  of 
articles  recently  stolen  raises  a  presumption 
that  the  person  in  whose  possession  the  same 
are  found  is  the  thief,  yet  this  presumption 
may  be  repelled  by  evidence  tending  to 
show  how  the  accused  came  by  them.  Way 
V.  State,  35  Ind.  409. 


418.  Where  goods  are  found  in  the  pos- 
session of  a  person  charged  with  larceny,  he 
may  rebut  the  presumption  of  guilt  without 
explaining  how  he  came  by  them.  Clack- 
ner  v.  State,  33  Ind.  412. 

419.  Although  the  possession  of  goods  re- 
cently stolen  is  presumptive  evidence  that 
such  possessor  is  the  thief,  and  in  the  ab- 
sence of  satisfactory  explanation  will  war- 
rant his  conviction,  yet  if  he  give  a  reason- 
able account  of  how  he  came  by  them,  it  is 
incumbent  on  the  prosecution  to  show  that 
the  account  is  false.  Jones  v.  State,  30 
Miss.  653 ;  Belote  v.  State,  36  lb.  96. 

420.  When  the  explanation  given  by  a 
party  in  whose  possession  stolen  property  is 
found,  is  unreasonable  or  improbable,  the 
onus  of  proving  its  truth  lies  on  him.  But 
if  it  is  natural  and  probable,  it  devolves 
upon  the  prosecution  to  show  its  falsity. 
Garcia  v.  State,  26  Texas,  209. 

421.  On  a  trial  for  larceny,  it  was  held  not 
erroneous  for  the  com-t  to  refuse  to  charge 
that  where  a  man,  in  whose  possession  stolen 
property  is  found,  gives  a  reasonable  account 
of  how  he  came  by  it,  the  prosecutor  is  re- 
quired to  show  the  account  to  be  false,  it 
being  necessary  to  appear,  in  order  to  render 
such  an  instruction  proper,  that  the  account 
was  given  to  those  finding  him  in  possession. 
Dillon  V.  People,  4  N.  Y.  Supm.  N.  S.  203  ; 
8  lb.  670. 

422.  A  person  found  in  possession  of  cat- 
tle, and  accused  of  removing  them  from 
their  accustomed  range,  may  prove  that  he 
bought  them  of  one  who  represented  that  he 
was  the  agent  of  the  owner  of  cattle  of  the 
same  road  brand  which  had  strayed  from 
the  herd  while  passing  through  the  county. 
Smith  V.  State,  41  Texas,  168. 

423.  Possession  of  stolen  property  ob- 
tained from  carrier.  Possession  of  stolen 
goods,  which  had  its  inception  by  a  delivery 
of  them  to  tiie  defendant  by  a  carrier,  who 
had  transported  them  some  distance,  is  not 
such  a  possession  as  "  creates  a  strong  pre- 
sumption "  that  the  defendant  committed 
the  larceny,  although  it  might,  in  connection 
with  other  evidence,  tend  to  show  his  com- 
plicity in  the  crime.  Heed  v.  State,  25  Wis. 
421. 


410 


LARCENY. 


Evidence. 


Presumptive  Evidence.     Admissions,  Declarations  and  Confessions. 


424.  Presumption  of  discliarge  from 
former  conviction.  An  indictment,  iu  ad- 
dition to  the  charge  of  grand  larceny,  for 
which  the  prisoner  was  tried,  contained  an 
averment  that  the  prisoner  had  been  tried 
and  convicted  previously  of  grand  larceny, 
and  sentenced  to  the  State  prison,  from 
which  he  had  been  duly  discharged  and  re- 
mitted of  such  judgment.  The  record 
showed  a  conviction  on  the  6th  of  February, 
1871,  and  sentence  to  imprisonment  for  one 
year.  The  present  indictment  was  found  in 
June,  1872.  It  was  held  that  the  fact  that 
the  term  for  which  the  prisoner  was  sen- 
tenced had  expired,  was  sufficient  evidence 
to  go  to  the  jury  that  he  was  discharged  of 
that  conviction.  Johnson  v.  People,  65 
Barb.  342. 

425.  Effect  of  circumstantial  evidence. 
When  on  a  trial  for  grand  larceny,  the  evi- 
dence is  mainly  circumstantial,  a  charge 
asked  for,  that  "innocence  should  be  pre- 
sumed until  the  case  proved,  in  all  its  mate- 
rial circumstances,  is  beyond  any  reasonable 
doubt,  and  that  the  evidence  ought  to  be 
strong  and  cogent  to  find  the  defendant 
guilty,"  should  be  given.  Moorer  v.  State, 
44  Ala.  15. 

426.  The  following  instruction  was  held 
unobjectionable:  That  the  evidence  being 
wholly  circumstantial,  if  the  jury  could  not 
reconcile  all  the  facts  proved  upon  any  other 
theory  than  the  guilt  of  the  prisoner,  they 
must  find  him  guilty;  but  if  they  could 
reconcile  them  with  his  innocence,  they 
must  acquit  him.  Com.  v.  Annis,  15  Gray, 
197. 

(g)  Admissiom,  declarations  and  confessions. 

427.  Not  to  be  excluded  because  owner 
of  property  not  a  v^itness.  On  the  trial  of 
an  indictment  for  stealing  from  the  person 
of  another,  the  admissions  of  the  accused 
are  not  to  be  excluded  on  the  ground  that 
the  person  from  whom  the  property  is 
alleged  to  have  been  stolen,  is  not  examined 
as  a  witness.  Com.  v.  Kenney,  12  Mete. 
235. 

428.  When  not  sufficient.  On  the  trial  of 
an  indictment  for  larceny,  the  corpus  delicti 
must  be  proved  otherwise  than  by  the  con- 


fessions of  the  accused.      Jenkins  v.  State, 
41  Miss.  582. 

429.  Silence  of  defendant.  On  a  trial 
for  larceny,  it  is  comi^etent  to  prove  that  the 
prisoner  when  arrested  was  charged  with 
the  theft,  and  made  no  reply.  State  v. 
Pratt,  20  Iowa,  267. 

430.  Offer  to  pay  for  property.  The  fact 
that  a  person  charged  with  larceny  ofl'ered 
to  pay  the  owner  of  the  property  fifty  dol- 
lars, is  not  admissible  in  evidence  against 
him  as  a  confession,  the  offer  being  made 
under  the  hope  of  settlement.  Train  v.  State, 
40  Ga.  529. 

431.  Confession.  On  the  trial  of  an  in- 
dictment for  stealing  money,  the  statement 
of  the  prisoner,  not  voluntarily  made,  that 
he  would  point  out  the  place  where  the 
money  was  buried,  in  connection  with  the 
fact  that  he  did  so,  and  that  the  money  was 
found  there,  is  admissible  in  evidence;  but 
not  the  further  statement,  "  I  buried  it  in" the 
ground  there."  People  v.  Hoy  Yen,  34  Cal. 
176. 

432.  On  the  trial  of  a  freedman  for  the 
larceny  of  a  mule  alleged  to  be  the  property 
of  J.  L.  Terrell,  the  prisoner's  confession 
that  he  had  taken  "^Mass.  Lee's  mule, "  is  not 
competent  evidence  without  proof  of  the 
identity  of  J.  L.  Terrell  as  '■'■Mass.  Lee.'''' 
And  the  admission  of  such  confession  is 
error,  although  the  bill  of  exceptions  states 
that  the  defendant  was  on  trial  for  the  lar- 
ceny of  a  mule,  "  the  property  of  Lee  Ter- 
rell," and  no  objection  was  made  to  the 
evidence  on  the  gi-ound  of  variance.  Gabriel 
V.  State,  40  Ala.  357. 

433.  The  owner  of  stolen  goods,  on  the 
defendant's  expressing  sorrow  for  the  ofi"ense, 
promised  not  to  prosecute  him,  but  the  offi- 
cer whom  they  shortly  after  met,  told  them 
the  matter  could  not  be  settled,  and  imme- 
diately arrested  the  defendant.  Held  that 
the  defendant's  confessions  made  subse- 
quently, were  admissible  in  evidence  against 
him,  notwithstanding  the  previous  promise 
of  the  owner.     Ward  v.  People,  3  Hill,  395. 

434.  Declarations  of  owner  of  stolen 
property.  On  a  trial  for  grand  larceny 
against  two  jointly  indicted,  it  having  been 
proved  that  money,  corresponding  somewhat 


LARCENY. 


411 


Evidence. 


Admissions,  Declarations  and  Confessions. 


with  that  which  had  been  taken  from  the 
complainant,  was  found  on  one  of  the 
prisoners,  the  following  evidence  was  held 
admissible  on  the  question  of  identity :  That 
after  the  prisoners  were  arrested,  the  com- 
plainant stated  that  one  of  them  was  the 
man  who  had  taken  his  money,  and  that  the 
other  was  the  one  who,  at  the  time  of  the 
larceny,  introduced  a  game  of  dice,  to  which 
they  made  no  re[)ly ;  and  that  the  complain- 
ant then  said  that  another  person  had  rep- 
resented himself  as  city  attorney,  which  both 
prisoners  immediately  denied,  Armsby  v. 
People,  2  N.  Y.  Supm.  N.  S.  157. 

435.  On  a  trial  for  stealing  a  pair  of  boots, 
the  question  was  whether  or  not  the  defend- 
ant took  them  without  the  consent  of  the 
owner.  The  defendant  proved  by  two  or 
three  witnesses,  that  he  bought  the  boots  of 
A.,  and  the  only  evidence  to  the  contrary 
was  the  testimony  of  C.  and  others,  that  a 
dispute  arose  between  the  defendant  and  A. 
in  regard  to  the  boots,  about  the  time  they 
were  taken  from  the  store,  in  which  the 
defendant  claimed  to  have  bought  them  of 
A.,  and  which  A.  denied.  Held,  that  the 
testimony  as  to  what  A.  said  was  hearsay 
and  inadmissible.  Davis  v.  State,  37  Texas, 
227. 

436.  For  the  purpose  of  joroving  a  bar- 
gain and  sale,  the  declarations  of  the  parties 
thereto  at  the  time  are  a  part  of  the  res  gestoe, 
and  competent  evidence  for  the  defendant 
to  rebut  the  presumption  of  guilt  arising 
from  the  possession  of  stolen  goods.  Leg- 
gett  V.  State,  15  Ohio,  283. 

437.  The  declarations  ef  the  alleged  owner 
of  stolen  bank  notes,  made  on  the  morning 
after  the  night  of  the  prisoner's  arrest,  that 
"  he  and  the  prisoner  were  drunk  together 
on  that  night,  that  he  let  the  prisoner  have 
the  bank  notes  in  order  to  invest  them  in 
the  grocery  business,  and  that  they  were  not 
stolen,"  are  not  competent  evidence  for  the 
prisoner,  although  the  alleged  owner  has 
since  died.     Sayres  v.  State,  30  Ala.  15. 

438.  Declarations  of  defendant  in  his 
own  behalf.  Wliere  it  is  jjroved,  on  a  trial 
for  larceny,  that  the  defendant  was  accused 
of  the  offense  when  he  was  arrested,  it  is 
competent  for  him  to  show  what  he  said  in 


reply  to  the  charge.     State  v.  Patterson,  63 
N.  C.  520. 

439.  Where,  on  a  trial  for  larceny,  it 
appears  that  the  defendant  took  lawful 
possession  of  the  property,  his  declaration  as 
to  his  intention,  made  at  the  time,  is  ad- 
missible as  part  of  the  res  gestce.  Maddox  v. 
State,  41  Texas,  205. 

440.  On  the  trial  of  an  indictment  for 
stealing  a  cow,  the  defendant  offered  to 
prove  that  on  the  night  the  cow  was  killed, 
before  the  family  and  others  at  his  house 
went  to  bed,  he  declared  openly  in  their 
presence  that  "  he  intended  to  kill  the  cow 
that  night,  and  take  her  to  the  neighboring 
town  to  market;  that  he  had  received  a 
message  from  the  owner  of  the  cow  which 
authorized  him  to  kill  and  j^ay  for  her. 
Held  admissible,  as  part  of  the  res  gestae  and 
to  show  the  intention  of  the  defendant  iu 
killing  the  cow.  Cornelius-  v.  State,  7  Eng. 
782. 

441.  In  the  same  case,  the  defendant 
proved  by  M.,  a  resident  of  the  neighboring 
town,  that  the  day  before  the  cow  was  killed, 
he  had  engaged  to  deliver  M.  beef  the 
following  morning ;  and  he  then  oflfered  to 
prove  by  M.  that  he  told  him  he  had  no 
beef  of  his  own,  but  that  there  was  one  at 
his  house,  belonging  to  another  man,  which 
he  would  kill  and  pay  for,  and  that  he  had 
permission  from  the  owner  to  do  so.  Held 
admissible,  as  part  of  the  res  gestce^  to  show 
the  intention  of  the  defendant  in  killing  the 
cow.     lb. 

442.  On  a  trial  for  larceny,  the  declarations 
of  the  accused  as  to  the  manner  in  which  he 
came  into  possession  of  the  property  are  not 
competent  evidence  in  his  favor.  Taylor  v. 
State,  42  Ala.  529 ;  Maynard  v.  State,  46  lb. 
85.  It  was  accordingly  held  that  a  person 
charged  with  larceny  could  not  be  permitted 
to  i^rove  that  after  the  goods  came  into  his 
possession,  he  stated  that  he  found  them. 
State  V.  Pettis,  63  Maine,  134,  Appleton,  C. 
J.,  and  Burrows,  J.,  dissenting. 

443.  On  a  trial  for  stealing  a  horse,  the 
defendant  offered  to  show  that  just  previous 
to  taking  the  animal,  he  had  made  arrange- 
ments with  a  man  to  bring  the  horse  back, 
after  he  had  driven  to  a  certain  place.    Held 


412 


LARCENY. 


Evidence. 


Admissions  and  Confessions.     Guilty  Knowledge  and  Intent. 


admissible  to  explain  the  defendant's  conduct 
and  intention.  State  v.  Shermer,  55  Mo.  83 ; 
s.  c.  3  Green's  Crim.  Heps.  613. 

444.  Whether,  on  a  trial  for  larceny,  the 
declaration  of  the  defendant  before  he  was 
suspected  of  the  theft,  and  before  any  search 
was  made,  accounting  for  his  possession  of 
the  property,  is  admissible  in  his  favor — 
query.     Tipper  v.  Com.  1  Mete.  Ky.  6. 

445.  Admission  of  district  attorney. 
On  the  trial  ©f  an  indictment  for  stealing 
sheep,  one  R.,  a  witness  for  the  prosecution, 
testified  that  the  defendant  and  another 
person  drove  them  to  the  party  in  possession. 
Afterward  the  district  attorney  admitted 
that  R.  was  indicted  for  receiving  the  same 
sheep,  knowing  them  to  have  been  stolen, 
the  following  instruction  of  the  court  to  the 
jury  was  held  erroneous  :  "  There  is  no  proof 
in  this  case  that  the  witness  R.  has  been  in- 
dicted or  now  is  indicted  for  any  crime,  and 
you  will  not  consider  the  statement  of  coun- 
sel that  indictments  are  now  pending  against 
him  in  this  court,  as  there  is  no  such  evi- 
dence."    People  v.  Robles,  34  Cal.  591. 

446.  Wife  of  defendant  as  •witness. 
Upon  the  trial  of  two  for  larceny,  the  wife 
of  one  of  the  defendants  cannot  be  a 
witness.  State  v.  McGrew,  13  Rich.  316. 
But  where  one  of  two  persons  jointly  in- 
dicted for  larceny  and  embezzlement,  is 
tried  separately,  the  wife  of  the  other  de- 
fendant may  testify.  Cornelius  v.  Com.  3 
Mete.  Ky.  481.  And  under  a  joint  indict- 
ment against  several,  the  wife  of  one  of  the 
defendants,  who  has  not  been  arrested,  and 
is  not  on  trial,  is  a  competent  witness  for 
the  prosecution.  State  v.  Drawdy,  14  Rich. 
87. 

(A)  Ouilty  'knowledge  and  intent, 

447.  Must  be  proved.  Under  an  indict- 
ment for  the  larceny  of  cattle,  which  had 
been  seized  by  the  sheriff  by  virtue  of  an 
execution  against  the  defendant,  and  com- 
mitted to  the  care  of  a  third  person,  the 
prosecution  must  show  that  the  defendant 
had  knowledge  of  the  execution  and  seizure 
of  the  cattle  by  the  sheriff.  State  v.  Dewitt, 
32  Mo.  571. 

448.  On  the  trial  of   an  indictment    for 


stealing  a  steer,  the  substance  of  the  instruc- 
tion was  that  if  the  defendant  caused  the 
steer  to  be  killed,  with  the  intent  to  deprive 
the  owner  of  it,  he  might  be  convicted, 
notwithstanding  he  had  not  actually  carried 
the  animal  away.  Held  erroneous,  as  the 
instruction  authorized  the  jury  to  convict, 
even  though  the  steer  had  been  killed  as  an 
act  of  malicious  mischief,  and  without  any 
felonious  intent,  and  without  removing  it. 
People  V.  Murphy,  47  Cal.  103. 

449.  On  the  trial  of  an  indictment  for 
stealing  a  horse,  it  was  proved  that  the 
defendant  hired  a  horse,  promising  to  return 
it  by  evening,  but  never  came  back.  Held, 
that  to  sustain  a  conviction,  the  jury  must 
find  that  the  prisoner  intended  to  steal  the 
horse  at  the  time  of  hiring  it.  People  v. 
Jersey,  18  Cal.  337 ;  People  v.  Smith,  23  lb. 
280. 

450.  On  the  trial  of  an  indictment  for 
entering  a  dwelling-house  in  the  day  time, 
and  stealing  therefrom,  the  following  in- 
struction was  held  erroneous:  That  "  if  it 
was  proved  that  the  defendant  was  with  the 
one  who  stole,  as  charged  in  the  indictment, 
and  saw  him  steal  without  interference  on 
the  defendant's  part  to  prevent  it,  upon  the 
defendant  would  then  devolve  the  labor  of 
proving  himself  innocent."  People  v.  Ah 
Ping,  27  Cal.  489. 

451.  Possession  of  other  stolen  property. 
Evidence  that  other  stolen  property  besides 
that  described  in  the  indictment  was  found 
in  the  defendant's  possession,  is  admissible 
to  show  guilty  knowledge;  but  not  that 
other  stolen  property  was  found  in  the  pos- 
session of  a  person  with  whom  the  defend- 
ant lived  as  a  hired  man.  State  v.  Wolff,  15 
Mo.  168. 

452.  Mental  condition  of  defendant.  On 
the  trial  of  an  indictment  for  larceny,  it  ap- 
peared that  the  defendant  was  addicted  to 
the  habitual  and  excessive  use  of  opium, 
and  that  at  the  time  of  the  supposed  offense, 
he  had  been  deprived  of  it.  Held  competent 
for  him  to  show  what  effect  such  depriva- 
tion would  have  upon  his  mental  condition, 
as  tending  to  prove  whether  or  not  he  was 
in  a  condition  to  commit  larceny,  Rogers 
V.  State,  33  Ind.  543. 


LAECENY. 


413 


Evidence.      Guilty  Knowledge  and  Intent.      Former  Conviction.     Charge  of  Court. 


453.  Minority  of  defendant.  On  a  trial 
for  larceny,  tbe  defense  cannot  be  permitted 
to  prove  that  the  defendant  is  a  minor,  for 
the  purpose  of  showing  that  in  committing 
the  offense,  he  was  acting  under  the  control 
of  his  mother.  People  v.  Richmond,  29  Cal. 
414. 

454.  Mistake.  On  the  trial  of  an  indict- 
ment for  stealing  a  steer,  it  is  competent  for 
the  defendant  to  prove,  in  order  to  show  the 
absence  of  guilty  intent,  that  immediately 
after  the  fact  was  ascertained  that  the  steer 
was  the  property  of  K.,  he  went  to  him  and 
said,  if  it  was  K.'s,  he  had  made  a  mistake, 
and  that  he  paid  K.  the  amount  for  which 
the  steer  had  been  sold ;  it  being  for  the  jury 
to  determine  from  all  the  facts  in  the  case, 
■whether  the  mistake  was  real  or  feigned. 
Hall  V.  State,  34  Ga.  208. 

455.  Right  of  defendant  to  explain  in- 
tent. On  the  trial  of  an  indictment  for 
larceny,  it  is  competent  for  the  defendant  to 
introduce  any  legal  proof  conducing  to  show 
the  intent  with  which  he  took  the  property, 
or  whose  property  it  was,  or  the  general  or 
special  title  to  it.  People  v.  Stone,  16  Cal. 
369. 

456.  But  under  an  indictment  for  stealing 
a  portion  of  the  cargo  of  a  vessel,  tbe  de- 
fendant cannot  be  permitted  to  prove  a  cus- 
tom for  the  officers  of  vessels  to  appropriate 
a  small  part  of  the  cargo,  or  to  show  that 
instances  had  occurred  where  the  mates  of 
vessels,  under  a  claim  of  right,  had  appro- 
priated parts  of  the  cargoes  in  their  posses- 
sion.    Com.  V.  Doane,  1  Cush.  5. 

457.  To  be  determined  by  jury.  On  the 
trial  of  an  indictment  for  larceny,  the  jury 
are  the  judges  as  to  the  title  of  the  property, 
the  taking  and  carrying  away,  and  the  in- 
tent. The  defendant  being  indicted  for 
stealing  a  steer,  the  court  charged  the  jury 
in  effect,  that  though  the  defendant  killed 
the  steer  believing  it  to  be  his  own,  yet 
when  lie  appropriated  it  to  his  own  use  and 
benefit,  it  was  evidence  of  a  felonious  in- 
tent. Held  error.  People  v.  Carabin,  14 
Cal.  438. 

458.  Where  there  is  any  testimony  tend- 
ing to  show  that  the  defendant  took  the 
property  alleged  to  have  been  stolen,  and 


removed  it  with  the  felonious  intent 
charged,  the  sufficiency  of  the  evidence  is 
wholly  a  question  for  the  jury.  State  v, 
Carr,  13  Vt.  571. 

459.  The  owner  of  a  hog,  having  lost  it, 
it  was  taken  up  as  an  estray  by  A.,  who 
upon  inquiring  for  the  owner,  was  told  by 
the  defendant  that  it  belonged  to  him.  The 
latter  then  took  the  animal  home,  changed 
the  mark  on  it,  and  put  it  in  the  pen  with 
his  other  hogs.  Held  proper  for  the  court 
to  charge  the  jury  that  it  was  for  them  to 
determine  whether  the  defendant  took  the 
hog  with  a  felonious  intent,  and  that  if  he 
did,  he  was  guilty  of  larceny.  State  v. 
Fisher,  70  N.  C.  78. 

(t)  Former  conviction. 

460.  To  be  proved.  Upon  a  charge  of 
larceny  after  a  former  conviction  of  the  ac- 
cused for  the  same  offense,  the  former  con- 
viction and  discharge  must  be  alleged  in 
the  indictment,  be  proved  on  the  trial,  and 
passed  upon  by  the  jury.  Such  proof  is  not 
incompetent  on  the  ground  that  it  tends  to 
establish  bad  character  by  proof  of  specific 
acts.     Johnson  v.  People,  55  N.  Y.  512. 

461.  Waiver  of  objection.  Where  under 
an  indictment  for  larceny  after  a  former 
conviction,  the  objection  that  the  discharge 
of  the  accused  from  imprisonment  under  the 
former  conviction  was  not  proved,  was  not 
raised  on  the  trial,  it  was  held  that  it  was 
not  available  on  appeal.     lb. 

8.  Charge  op  court. 

462.  As  to  finding  the  value  of  the 
stolen  property.  AVhere  on  a  trial  for  lar- 
ceny, under  an  indictment  charging  the 
stealing  of  several  sums  from  the  person  of 
another,  in  the  city  of  New  York,  amount- 
ing to  more  than  $25,  the  judge  was  asked 
to  instruct  the  jury  that  their  verdict  ought 
to  indicate  the  amount  stolen,  so  that  if  less 
than  $25,  the  court  would  not  be  compelled 
to  sentence  the  prisoner  to  the  State  prison, 
it  was  held  that  the  j^risoner  was  enti- 
tled to  the  instruction  asked.  Williams 
V.  People,  24  N.  Y.  405. 

463.  Where  on  the  trial  of  an  indictment 
for  stealing  from  the  person  moneys  exceed- 


414 


LAKCENY. 


Charge  of  Court. 


Verdict. 


ing  twenty-five  dollars,  it  was  proved  that 
less  than  that  sum  was  stolen,  and  the  judge 
refused  to  charge  that  the  defendant  could 
be  found  guilty  of  petit  larceny  only,  but 
instructed  the  jury  that  if  they  found  the 
defendant  had  stolen  eighteen  dollars,  they 
might  render  a  verdict  of  guilty  under  the 
indictment,  it  was  held  error.  Rhodihan  v. 
People,  5  Parker,  395. 

464.  Where  the  grade  of  the  offense  does 
not  depend  upon  the  value  of  the  property 
stolen,  it  is  not  error  for  the  court  to  refuse 
to  instruct  the  jury  "they  must  assess  the 
value  of  the  property  according  to  its  value 
in  gold."  Yarborough  v.  State,  41  Ala. 
405. 

9.  Verdict. 

465.  Under  an  indictment  charging  the 
larceny  of  several  articles.  Where  a  per- 
son is  charged  in  one  count  with  stealing 
several  articles,  he  may  be  found  guilty  of 
the  larceny  of  one,  and  acquitted  as  to  the 
rest ;  and  if  the  jury  find  him  guilty  of  steal- 
ing one  of  the  articles,  and  take  no  notice  of 
the  other,  it  is  an  acquittal  as  to  the  other 
articles.  Swinney  v.  State,  8  Smed.  & 
Marsh.  576 ;  People  v.  Wiley,  3  Hill,  194. 
But  see  O'Connell  v.  Com.  7  Mete.  460. 

466.  Although  as  a  general  rule,  where  a 
person  is  charged  with  having  stolen  several 
articles,  and  he  is  proved  to  have  stolen  only 
some  of  them,  and  not  all,  a  general  verdict 
is  good,  because  the  punishment  will  be  the 
same;  yet  where  the  penalty  is  increased  in 
proportion  to  the  number  of  articles  stolen, 
the  verdict  will  be  bad.  State  v.  Bunten, 
3  Nott  &  McCord,  441. 

467.  Under  an  indictment  charging  the 
larceny  of  various  articles,  some  of  which 
are  well  and  others  insufficiently  described, 
if  a  general  verdict  of  guilty  be  found,  the 
insufficiency  of  the  description  as  to  some  of 
the  articles  has  no  other  effect  than  to  strike 
them  out  of  the  indictment,  and  the  verdict 
is  to  be  applied  to  the  property  which  is 
correctly  described.  Com.  v.  Williams,  2 
Cush.  582 ;  Warren  v.  State,  1  Greene,  106. 

468.  When  there  must  be  a  finding  of 
value.  Where  the  statute  fixes  the  punish- 
ment for  larceny  according  to  the  value  of 
the  property  stolen,  the  verdict  should  find 


the  value,  in  order  that  the  court  may  know 
with  certainty  of  what  offense  the  defendant 
has  been  convicted.  Ray  v.  State,  1  Greene, 
316.  The  verdict  may  be  for  the  aggregate 
value  of  the  goods  stolen.  Warren  v.  State, 
sup7'a. 

469.  The  rule  by  which  to  value  a  bank 
note  for  the  purpose  of  determining  the  de- 
gree of  larceny,  is  the  sum  which  on  its  face 
it  promises  to  pay.  State  v.  Cassell,  2  Har. 
&  Gill,  407. 

470.  A  general  verdict  of  guilty  on  a  trial 
for  larceny  must  be  regarded  as  a  finding  of 
the  truth  of  all  of  the  material  averments 
constituting  the  offense  charged,  including 
the  allegation  of  value.  Mason  v.  People,  2 
Col.  373. 

471.  In  Massachusetts,  when  the  alleged 
value  of  property  stolen  does  not  exceed 
one  hundred  dollars,  the  jury  need  not  find 
any  precise  sum  as  the  value,  and  a  general 
verdict  of  guilty  will  necessarily  include  the 
finding  of  value.  Com.  v.  McKenney,  9 
Gray,  114. 

472.  In  Illinois,  where  a  verdict  for  lar- 
ceny does  not  find  the  value  of  the  property 
stolen,  it  is  ground  for  arresting  the  judg- 
ment, and  for  a  new  trial.  Collins  v.  Peo- 
ple, 39  111.  233. 

473.  Finding  value  of  part  of  articles 
stolen.  Notwithstanding  only  the  collect- 
ive value  of  property  alleged  to  have  been 
stolen  is  stated  in  the  indictment,  yet  if  the 
jury  find  the  defendant  guilty  of  stealing  a 
part  only  of  the  property,  and  in  their  ver- 
dict state  the  value  of  the  articles  so  stolen 
by  him,  judgment  maybe  rendered  on  the 
verdict.     Gilmore  v.  McNeil,  46  Maine,  532. 

474.  Under  an  indictment  alleging  the 
larceny  of  bank  bills  of  the  value  of  $367, 
the  jury  found  the  defendant  guilty  of  steal- 
ing bank  bills  of  the  value  of  $317,  only. 
fieZ<Z  not  a  ground  for  arrest  of  judgment; 
it  being  like  the  case  of  an  allegation  of  a 
larceny  of  ten  bank  bills,  and  a  verdict  of 
guilty  as  to  nine  of  the  bills.  Com.  v.  Duffy, 
11  Cush.  145  ;  approving  Com.  v.  Sawtelle, 
lb.  142.  See  Com.  v.  Gallagher,  16  Gray, 
240;  Com.  v.  Hussey,  111  Mass.  432. 

475.  Finding  collective  value.  On  a 
trial   for  larceny,  the  verdict  was  that  the 


LARCENY. 


415 


Verdict. 


Sentence. 


prisoner  was  guilty  of  stealing  all  of  tlie 
articles  to  which  a  collective  value  was  as- 
signed in  the  indictment.  Held  no  ground 
for  arrest  of  judgment;  it  being  only  in 
cases  where  the  verdict  negatives  the  steal- 
ing of  a  part  of  the  articles,  that  an  allega- 
tion of  the  collective  value  will  be  held  in- 
sufficient.    State  V.  Hood,  51  Maine,  363. 

476.  An  indictment  for  larceny  charged 
the  defendant  with  stealing  certain  goods 
and  chattels,  and  then  gave  a  list  of  the 
goods  with  their  value,  amounting  in  the 
aggregate  to  one  hundred  dollars.  The 
jury  found  the  prisoner  guilty  of  grand  lar- 
ceny. Held  that  they  should  have  specified 
the  value,  or  found  the  defendant  guilty 
of  the  offense  charged  in  the  indictment, 
and  that  not  having  done  so,  the  verdict 
was  void  for  uncertainty.  State  v.  Coon,  18 
Minn.  518. 

477.  In  Mississippi,  the  first  count  of  an 
indictment  charged  the  stealing  of  a  horse 
of  the  value  of  seventy  dollars  ;  a  saddle  of 
the  value  of  ten  dollars ;  a  bridle  of  the 
value  of  one  dollar ;  a  blanket  of  the  value 
of  one  dollar;  ten  dollars  in  specie,  and  a 
bank  note  for  ten  dollars.  The  second  count 
charged  the  stealing  of  a  promissory  note 
for  twenty- two  hundred  dollars.  The  jury 
found  a  verdict  of  guilty,  without  assessing 
any  value  to  the  property,  or  any  portion  of 
it.  Held  sufficient  to  warrant  a  sentence  for 
grand  larceny.  Wilbom  v.  State,  8  Smed.  & 
Marsh.  345. 

478.  In  New  Hampsliire,  on  a  trial  for 
larceny  under  the  statute  (R.  S.  ch.  215, 
§  13),  if  the  jury  find  a  verdict  of  guilty, 
they  must  also  find  the  value  of  the  prop- 
erty stolen.  Where  the  indictment  charged 
the  stealing  of  a  breast  pin  of  the  value  of 
ten  dollars,  and  a  watch  of  the  value  of  one 
hundred  dollars,  and  it  was  proved  that  the 
property  was  not  worth  as  much  as  alleged, 
and  there  was  a  verdict  of  guilty  simply,  it 
was  held  that  the  judgment  must  be  re- 
versed. Locke  V.  State,  33  New  Ilamp. 
106. 

479.  In  Ohio,  where  on  the  trial  of  an  in- 
dictment containing  counts  for  horse  stealing 
and  grand  larceny,  the  jury  found  a  general 
verdict  of  guilty,  assessing  the  value  of  the 


whole  property,  without  finding  the  amount 
charged  in  each  count,  the  judgment  was 
reversed.     Barton  v.  State,  18  Ohio,  221. 

480.  Where  another  offense  is  charged. 
"Where  the  indictment  charges  in  one  count 
the  larceny  of  goods,  and  in  another  the 
receiving  them  knowing  that  they  were 
stolen,  there  may  be  a  general  verdict  of 
guilty.  State  v.  Speight,  69  N.  C.  72 ;  State 
V.  Baker,  70  lb.  530;  State  v.  Bailey,  73  lb. 
70. 

481.  Where  on  the  trial  of  an  indictinent 
for  larceny,  it  appears  that  it  was  committed 
in  connection  with  a  burglary,  the  prisoner 
may  be  convicted  of  the  larceny  as  a  separate 
and  distinct  ofiense.  There  is  no  merger  in 
such  a  case  which  is  available  to  the  accused 
by  way  of  defense,  until  there  has  been  a 
trial  and  conviction.  People  v.  Smith,  57 
Barb.  46. 

482.  In  case  of  charge  against  two. 
Under  a  joint  indictment  against  two  for 
stealing  the  same  goods,  one  cannot  be  con- 
victed of  petit  larceny,  and  the  other  of 
grand  larceny.  State  v.  Davis,  3  McCord, 
187. 

10.  Sentence. 

483.  To  be  consistent  with  verdict. 
Where  under  an  indictment  for  stealing 
several  articles,  there  is  a  general  verdict 
of  guilty,  the  court  cannot  impose  the  pun- 
ishment for  stealing  only  one  of  the  articles, 
although  the  larceny  of  only  one  was 
proved  ;  but  the  judgment  must  conform  to 
the  verdict.     State  v.  Kersh,  1  Strobh.  352. 

484.  For  part  of  offense  found.  Where 
an  indictment  for  burglary  alleges  a  break- 
ing and  entering  in  the  night  with  intent  to 
steal, and  an  actual  stealing,  the  prosecution, 
after  a  general  verdict  of  guilty  and  before 
sentence,  may  enter  a  nolle  fjrosequi  as  to  so 
much  of  the  indictment  as  charges  a  break- 
ing and  entering,  and  the  defendant  may  be 
sentenced  for  the  larceny.  Jennings  v.  Com. 
105  Mass.  586. 

485.  Defendant  disfranchised.  In  In- 
diana, the  law  prescribes  as  a  part  of  the 
punishment,  on  a  conviction  of  petit  larceny, 
that  the  defendant  be  disfranchised,  and 
rendered  incapable  of  holding  any  office  of 
trust  or  profit,  for  a  determinate  period  to 


416 


LASCIYIOUSNESS. 


What  Constitutes. 


be   found  by   the   jury.     Doty   v.  State,  6 
Blackf.  529. 

See  Receiving   stolen  property. 


1.  What  constitutes. 

2.  Indictment. 

3.  Evidence. 

1.  What  constitutes. 

1.  "Wanton  behavior.  When  wanton  and 
lascivious  acts  are  practiced  by  an  indi- 
vidual toward  another  of  a  different  sex, 
against  the  will  and  consent  of  such  person, 
no  one  else  being  present,  such  acts  consti- 
tute the  offense  of  "  lascivious  carriage," 
within  the  meaning  of  the  statute  of  Con- 
necticut.    Fowler  v.  State,  5  Day,  81. 

2.  Where  a  man  without  provocation, 
asks  another  person's  wife  to  go  to  bed  with 
him,  his  intention  in  using  the  language,  as 
well  as  the  purpose  for  which  he  used  it, 
makes  it  in  law  both  obscene  and  vulgar. 
Dillard  v.  State,  41  Ga.  278,  Brown,  C.  J.^ 
dissenting. 

3.  Indecent  exposure.  The  indecent  ex- 
posure of  one's  person  on  a  public  highway, 
is  a  misdemeanor  at  common  law.  State  v. 
Eose,  32  Mo.  SCO.  The  offense  of  indecent 
exposure  does  not  depend  on  the  number  of 
persons  to  whom  one  thus  exposed  himself. 
State  V.  Millard,  18  Vt.  574. 

4.  In  Tennessee,  where  a  person  permitted 
his  slaves  to  pass  about  in  public  view  inde- 
cently naked,  it  was  held  that  he  was  liable 
to  indictment  for  lewdness.  Britain  v.  State, 
li  Humph.  203. 

5.  In  Vermont,  under  the  statute  (R.  S. 
ch.  99,  §  8),  where  a  man  exposes  his  person 
indecently  to  a  woman,  and  solicits  her  to 
have  sexual  intercourse  with  him,  and  per- 
sists in  so  doing,  against  her  remonstrance, 
he  is  guilty  of  "  open  and  gross  lewdness 
and  lascivious  behavior,"  and  liable  to  in- 
dictment.    State  V.  Millard,  supra. 

6.  Obscene  language.  The  use  in  public, 
of  grossly  obscene  language,  is  indictable  as 
an  offense   against  public   morals   and   de- 


cency, at   common   law.     State  v.  Appling, 
25  Mo.  315. 

7.  Keeping  house  of  ill-fame.  To  con- 
stitute the  offense  of  keeping  a  bawdy-house, 
a  house  or  room  must  be  kept  for  the  accom- 
modation and  entertainment  of  lewd  people. 
Therefore,  a  female  is  not  amenable  to  that 
offense,  who  lives  alone,  and  habitually  ad- 
mits persons  to  an  illicit  cohabitation  with 
her.     State  v.  Evans,  5  Ired.  603. 

8.  On  the  trial  of  an  indictment  for  keep- 
ing a  house  of  ill-fame,  the  defendant  may 
be  convicted,  although  the  house  is  owned 
by  his  wife  as  her  separate  property,  and  the 
business  is  carried  on  by  her  and  slie  takes 
the  profits,  in  which  he  does  not  participate. 
Com.  V.  Wood,  97  Mass.  225. 

9.  The  statute  of  Connecticut  (R.  S.  tit.  6, 
§  89),  which  provides  that  "  every  justice  of 
the  peace  may,  on  the  complaint  of  any  in- 
forming officer,  require  sureties  of  the  peace 
and  good  behavior  from  any  person  who 
shall  be  guilty  of  frequenting,  keeping  or 
maintaining  houses  reputed  to  be  houses  of 
bawdry  and  ill-fame,"  with  right  of  appeal, 
is  not  unconstitutional,  and  a  person  may  be 
convicted  who  keeps  but  one  such  house. 
State  V.  Main,  31  Conn.  572. 

10.  Renting  house  for  prostitution.  The 
owner  of  a  house  who  rents  it  to  be  used 
and  kept  as  a  house  of  prostitution  is  to  be 
deemed  to  keep  such  house,  and  is  liable  to 
indictment  and  conviction  as  the  keeper  of 
a  bawdy-house.  The  principle  of  this  rule 
applies  to  any  person  who  is  directly  con- 
cerned in  the  keeping  of  such  a  house. 
Lowenstein  v.  People,  54  Barb.  299. 

11.  A  person  who  has  the  control  of  a 
house,  and  knowingly  rents  it  and  permits 
it  to  be  used  as  a  house  of  prostitution,  is 
liable  to  punishment  therefor,  although  he  is 
a  mere  agent.     lb. 

12.  Lascivous  cohabitation.  In  Michi- 
gan, to  constitute  the  offense  of  lewd  and 
lascivious  cohabitation  under  the  statute,  the 
cohabitation  must  be  lewd  and  lascivious  on 
the  part  of  both.  If  either  was  acting  in 
good  faith,  neither  is  guilty.  The  charge 
must  therefore  be  joint,  and  both  must  be 
joined  as  defendants,  unless  one  of  the  par- 
ties is   unknown  or  has   since  died.     But 


LASCIYIOUSNESS. 


417 


What  Constitutes. 


Indictment. 


they  may  be  tried  separately,  and  one  con- 
victed and  sentenced  before  the  otlier  is 
tried.  The  following  indictment  was  there- 
fore held  bad  in  not  charging  a  joint  of- 
fense: That  "T.  D.  did  lewdly  and  lascivi- 
ously associate  and  cohabit  with  one  M.  S., 
he  the  said  T.  D.  being  then  and  there  a 
man,  and  she  the  said  M.  S.  being  then  and 
there  a  woman,  and  they,  the  said  T.  D.  and 
M.  S.,  not  being  then  and  there  married  to 
each  other."  Delany  v.  People,  10  Mich. 
241. 

13.  In  Tennessee,  where  two  persons  of 
the  opposite  sex  cohabit  together,  ostensibly 
as  husband  and  wife,  without  in  fact  being 
married,  they  are  liable  to  indictment,  al- 
though the  fact  of  their  being  unmarried 
may  not  be  generally  known.  State  v. 
Boling,  2  Humph.  414. 

14.  In  Illinois,  to  constitute  the  oflFense  of 
fornication  within  the  meaning  of  the  stat- 
ute, the  parties  must  cohabit  openly  and 
notoriously.  Searls  v.  People,  13  111.  597. 
And  in  South  Carolina,  it  was  held  that  an 
indictment  for  "  living  in  open  lewdness, 
whoredom  and  adultery,"  was  not  suppoited 
by  simply  proving  adultery.  State  v.  Bran- 
son, 2  Bail.  149.  And  see  Com.  v.  Calef,  10 
Mass.  153. 

15.  In  Massachusetts,  a  husl)and  obtained 
a  divorce  from  his  wife  for  desertion.  The 
wife  subsequently  went  to  another  State, 
where  she  was  married  to  another  man, 
with  whom  she  returned  to  Massachusetts 
and  there  lived.  Held  that  she  was  not  in- 
dictable under  the  statute  (R.  S.  ch.  130,  §  4) 
for  lewd  and  lascivious  behavior.  Com.  v. 
Hunt,  4  Cush.  49. 

16.  Simple  incontinence  is  not  punishable 

at  common  law.     Com.  v.  Jones,  2  Gratt. 

555. 

2.  Indictment. 

17.  "When  it  will  lie.  All  acts  and  con- 
duct calculated  to  corrupt  the  public  morals, 
or  to  outrage  the  sense  of  public  decency, 
are  indictable.  Williams  v.  State,  4  Mo. 
480. 

18.  Joinder  of  parties.  Several  persons 
in  the  same  place,  but  occupying  different 
houses,  and  having  no  community  of  in- 
terest, may  be  joined  in  an  indictment  for 

27 


keeping  bawdy-houses.     State  v.  McDowell, 
Dudley,  S.  C.  346. 

19.  But  an  indictment  which  charges  two 
persons  in  a  single  count  with  obscenity  is 
bad  for  duplicity,  the  offense  being  personal. 
State  V.  Roulstone,  3  Sneed,  107. 

20.  Name  of  defendant.  The  defendant 
pleaded  to  an  indictment  for  keeping  a 
house  of  ill-fame,  that  her  name  was  Mary 
Y.  Homer  and  not  Mary  Homer.  Ueld  that 
if  the  letter  Y.  was  to  be  regarded  merely  as 
the  initial  letter  of  the  middle  name  it  was 
doubtful  whether  the  plea  was  sufficient; 
that  the  name  of  which  that  was  the  initial 
letter  should  have  been  set  forth  in  the  plea. 
State  V.  Homer,  40  Maine,  438. 

21.  Charging  lascivious  behavior.  An 
indictment  for  open  and  gross  lewdness  or 
lascivious  behavior  must  set  out  the  acts 
which  are  charged  to  constitute  the  offense, 
and  state  that  they  were  committed  openly 
and  notoriously.  It  is  not  sufficient  to 
allege  generally  that  the  defendant  was 
guilty  "  of  open  gross  lewdness  and  lascivi- 
ous behavior,  by  then  and  there  publicly  co- 
habiting with  one  A.  B.,"  but  the  specific 
act  of  lewdness  must  be  stated.  Dameron 
V.  State,  8  Mo.  494 ;  State  v.  Moore,  1  Swan, 
136. 

22.  In  New  Hampshire,  where  a  com- 
plaint alleged  that  the  defendant  was  guilty 
of  indecent  and  rude  conduct  in  a  public 
street  contrary  to  the  statute,  without  any 
further  description  of  the  acts  complained 
of,  it  was  held  insufficient.  State  v.  Pierce, 
43  New  Hamp.  273.  And  see  State  v. 
Goulding,  44  lb.  284. 

23.  In  Massachusetts,  a  complaint  under 
the  statute  (Gen.  Stats,  ch.  165,  §  28),  which 
alleges  that  the  defendant  "  was,  and  still  is, 
a  lewd,  wanton  and  lascivious  person  in 
speech  and  behavior,"  is  not  bad  either  for 
uncertainty  or  duplicity,  and  it  need  not  con- 
clude "  to  the  common  nuisance  of  the  peo- 
ple of  the  commonwealth."  Com.  v.  Parker, 
4  Allen,  313. 

24.  Averment  of  indecent  exposure.  An 
indictment  which  cluirgcs  an  indecent  and 
scandalous  exposure  of  the  naked  person  to 
public  view,  in  a  public  place,  is  sufficient, 
without  alleging  that  the  act  was  committed 


418 


LASCIVIOUSNESS. 


Indictment. 


Evidence. 


in  the  presence  of  one  or  more  of  the  citi- 
zens of  the  State.  State  v.  Roper,  1  Dev. 
&  B:vtt.  208. 

25.  An  indictment  which  alleges  that  the 
defendant,  "devising  and  intending  the 
morals  of  the  people  to  debauch  and  cor- 
rupt," "  unlawfully,  scandalously,  and  wan- 
tonly "  exposed  his  naked  body  to  the  \'iew 
of  persons  present,  sufficiently  charges  a 
ciiminal  intent  in  the  indecent  exposure  of 
himself,  and  need  not  conclude,  "to  the 
common  nuisance  of  all  the  citizens,"  &c. 
Com.  V.  Haynes,  2  Gray,  72. 

26.  Description  of  commou  night  walker. 
In  an  indictment  for  being  a  common  night 
walker,  the  offense  (as  in  the  casss  of  com- 
mon barratoi-s,  common  scolds,  and  the 
like),  may  be  described  in  general  terms. 
State  V.  Dowers,  45  New  Hanip.  548. 

27.  Charge  of  publication  or  sale  of  in- 
decent print.  In  an  indictment  charging 
that  the  defendant  did  "  publish  an  indecent 
and  obscene  newspaper  called,"  &c.,  the 
composition  should  be  set  out,  or  such  de- 
scription given  of  it  that  the  court  can  judge 
of  its  character.  State  v.  Hanson,  23  Texas, 
232. 

28.  An  indictment  for  selling  an  obscene 
publication  should,  in  general,  set  forth  the 
publication  in  here  verba.  But  when  the  pub- 
lication is  of  so  gross  a  character  that  spread- 
ing it  upon  the  record  will  be  an  offense 
against  decency,  it  may  be  excused.  State  v. 
Brown,  27  Vt.  619. 

29.  Charge  of  keeping  house  of  ill- 
fame.  An  indictment  for  keeping  a  house 
of  ill-fame  need  not  specify  the  street  in 
which  the  house  is  situated.  And  where  the 
offense  is  created  by  statute,  the  words  "  to 
the  common  nuisance,"  &c.,  are  not  essential 
to  the  validity  of  the  indictment.  State  v. 
Stevens,  40  Maine,  559. 

30.  It  is  no  objection  to  an  indictment  for 
keeping  and  maintaining  a  building  for 
prostitution,  lewdness,  illegal  gaming,  and 
the  unlawful  sale  of  intoxicating  liquors, 
which  is  described  as  a  tenement  on  the 
fourth  floor,  fronting  on  a  certain  street, 
that  there  are  three  other  rooms  not  occupied 
by  the  defendant,  on  the  same  floor,  front- 
ing on  the  same  street.     Com.   v.  Hill,  14 


Gray,  24.     And   see  Com.   v.  Donovan,  IG 
Gray,  IS. 

31.  Charge  of  unlawful  cohabitation. 
An  indictment  for  illegal  cohabitation  should 
allege  that  one  of  the  parties  was  a  man  and 
the  other  a  woman,  and  that  they  cohabited 
as  husband  and  wife.  State  v.  Dunn,  26 
Ark.  84. 

32.  Where  an  indictment  alleged  that  "A. 
did  take  into  his  house  one  B.,  and  they  did 
then  and  there  have  one  or  more  children 
without  parting,  or  an  entire  separation, 
they,  the  said  A.  and  B.,  never  having  been 
lawfully  married,"  it  was  held  that  it  suffi- 
ciently showed  that  the  parties  were  of  dif- 
ferent sexes.     State  v.  Fore,  1  Ired.  378. 

33.  Under  a  statute  providing  that  "  if 
any  man  or  woman  shall  live  together  as 
husband  and  wife,  without  being  married, 
each  of  them  shall  be  deemed  guilty  of  a 
misdemeanor,"  an  indictment  which  alleges 
that  a  woman  "did  bed  to  and  live  "  with  a 
man  is  insufficient.  Grouse  v.  State,  16  Ark. 
566. 

34.  An  indictment  is  sufficient  which  al- 
leges that  the  defendants,  a  man  and  woman, 
lived  together  in  fornication.  Lawson  v. 
State,  20  Ala.  65.  And  where  the  indict- 
ment charged  that  the  defendant,  an  unmar- 
ried man,  lived  in  open  and  notorious  forni- 
cation with  a  woman,  it  was  held  that  it 
need  not  allege  that  she  was  unmarried. 
State  v.  Gooch,  7  Blackf.  468. 

35.  In  Massachusetts,  an  indictment  under 
the  statute  (Gen.  Stats,  ch.  165,  §  4), for  con- 
tinuing to  cohabit  with  a  second  wife,  the 
defendant  having  a  former  wife  living,  is 
sufficient  which  alleges  that  the  second  niar- 
riage  took  place  on  a  certain  day,  and  that 
the  defendant  "  afterward  did  cohabit  and 
continue  to  cohabit  with  said  A.  at  C,  in 
said  county  for  a  long  space  of  time,  to  wit., 
for  the  space  of  six  months."  Com.  v.  Brad- 
ley, 2  Cush.  553 ;  Com.  v.  Godsoe,  105  Mass. 
464.  1^ 

|r^    3.  Evidence. 

33.  Complainant  as  witness.  On  the 
trial  of  an  information  for  lascivious  carriage 
and  behavior,  the  complainant  is  a  compe- 
tent witness.     Fowler  v.  State,  5  Day,  81. 

37.  Intent  of  defendant.     Under  an  in- 


LASCIYIOUSNESS. 


419 


Evidence. 


•dictment  for  exposing  the  nalfed  body  in 
public,  the  intent  with  which  the  act  was 
done  is  material.  Miller  v.  People,  5  Barb. 
203. 

38.  Proof  of  open  lewdness.  An  indict- 
ment for  open  gross  lewdness  and  lasci\(ious 
behavior,  will  not  be  supported  by  evidence 
oi  lewdness  or  such  behavior  in  secret.  Com. 
V.  Catlin,  1  Mass.  8. 

39.  On  a  trial  for  open  and  notorious 
lewdness,  it  is  error  to  permit  a  witness  to 
testify  that  "it  was  the  general  rumor  of 
the  neighborhood  that  the  defendants  were 
living  together  in  adultery."  Buttram  v. 
State,  4  Cold.  Tenn.  171 ;  approving  Fox  v. 
State,  8  Humph.  63. 

40.  A  charge  for  open  and  notorious  lewd- 
ness may  be  proved  by  circumstantial  evi- 
dence.    Peak  V.  State,  10  Humph.  90. 

41.  Acts  of  illicit  intercourse.  Under  a 
charge  of  illicit  intercourse,  within  a  limited 
period,  evidence  may  be  given  of  acts  an- 
terior to  that  period,  in  connection  with,  and 
in  explanation  of  acts  of  a  similar  character 
occurring  within  the  same  period,  although 
such  former  acts,  if  treated  as  an  offense, 
would  be  barred  by  the  statute  of  limita- 
tions.    Lawson  v.  State,  20  Ala.  65. 

42.  Where  acts  of  indecent  familiarity 
have  been  explained  by  previous  acts  of  illicit 
intercourse,  proof  of  subsequent  illicit  inter- 
course becomes  corroborative,  and  is  admis- 
sible,    lb. 

43.  Proof  of  renting  house  for  purposes 
of  prostitution.  Where  on  a  trial  of  an 
indictment  for  leasing  premises  for  the  pur- 
pose of  being  used  in  keeping  a  bawdy-house, 
there  was  no  evidence  that  the  defendant  in 
renting  the  house  knew  that  the  lessee  was 
an  improper  character,  or  that  the  house  was 
to  be  used  for  an  improper  purpose,  it  was 
held  that  a  convictioii  could  not  be  sus- 
tained.    State  V.  Leach,  50  Mo.  535. 

44.  In  Iowa,  on  the  trial  of  an  indictment 
under  the  statute  (Code,  §3713),  for  leasing 
a  house  knowing  that  the  lessee  intended  to 
use  the  same  as  a  place  of  resort  for  prosti- 
tution, and  for  knowingly  permitting  it  to 
be  so  used,  the  prosecution  must  show  such 
acts  or  circumstances  as  shall  satisfy  the 
jury  that  the  lessor,  knowing  that  the  house 


was  being  used  for  the  illegal  purpose,  after 
the  execution  of  the  lease,  not  only  remained 
inactive,  but  consented  to  such  use ;  and  he 
is  not  bound  to  prove  that  he  took  some 
step  to  manifest  his  dissent.  Abrahams  v. 
State,  4  Iowa,  541 ;  s.  c.  6  lb.  117. 

45.  Proof  of  evil  reputation  of  house. 
On  a  charge  of  keeping  a  house  of  ill-fame 
resorted  to  for  the  purpose  of  prostitution 
and  lewdness,  the  former  may  be  proved  by 
the  reputation  of  the  liouse,  the  latter,  by 
the  testimony  of  persons  knowing  the  fact 
that  prostitutes  and  lewd  persons  resorted 
there  and  committed  acts  of  prostitution  ; 
and  in  determining  the  purpose  for  which 
such  persons  resorted  to  the  house,  the  jury 
may  take  into  consideration  the  reputation 
of  the  house.  O'Brien  v.  People,  38  Mich. 
313. 

46.  On  the  trial  of  an  indictment  for 
keeping  a  bawdy-house,  it  may  be  proved 
that  convicted  prostitutes  resorted  to  the 
house  of  the  accused;  that  females  were 
arrested  there  in  the  night  charged  with 
being  prostitutes;  and  that  the  accused 
procured  bail  for  them.  Harwood  v.  People, 
36  N.  Y.  190. 

47.  Where  on  the  trial  of  a  complaint  for 
keeping  a  house  of  ill-fame,  it  appeared 
that  a  former  prosecution  for  the  same  of- 
fense v?as  discontinued  upon  payment  of  the 
costs  by  the  defendant,  it  was  held  that 
evidence  was  admissible  of  the  reputation 
of  the  house,  at  the  time  of,  and  prior  to 
the  former  prosecution.  State  v.  Main,  31 
Conn.  573. 

48.  Proof  of  keeping  house  of  ill-fame. 
The  oflFense  of  keeping  a  bawdy-house  does 
not  respect  the  ownership  of  the  house,  but 
its  criminal  management.  It  is  therefore 
proper  to  show  on  the  trial  of  an  indictment 
for  such  oflrense,that  the  defendant  procured 
a  woman  from  a  neighboring  town  to  go 
and  live  in  the  house;  and  it  is  immaterial 
whether  he  acted  as  principal,  or  as  the 
agent  or  servant  of  another.  As  the  nuisance 
consists  in  drawing  together  dissolute  per- 
sons engaged  in  unlawful  practices,  evidence 
is  admissible  to  show  the  character  of  the 
persons  who  frequent  the  house.  The  gist 
of  the  oflFense  is  the  keeping  or  managing 


420 


LASCIVIOUSNESS.— LETTER. 


Evidence. 


Unlawful  to  Open. 


such  a  house  to  the  public  detriment,  and 
under  a  general  allegation  particular  in- 
stances may  be  proved.  State  v.  McGregor, 
41  New  Hamp.  407. 

49.  In  Massachusetts,  an  indictment  for 
keeping  a  house  of  ill-fame  resorted  to  for 
prostitution  and  lewdness,  within  the  statute 
(Gen.  Stats,  ch.  87,  §§  6,  7),  will  not  be  sus- 
tained by  proof  of  a  single  act  of  illicit 
intercourse.  There  need  not  be  proof  of 
numerous  acts  of  prostitution  or  lewdness 
permitted  by  the  keeper  of  the  house,  but 
it  must  be  shown  that  it  was  kept  as  a  place 
of  resort  for  such  purposes.  Com.  v.  Lambert. 
12  Allen,  177. 

50.  Proof  of  unlawful  cohabitation.  An 
indictment  for  unlawful  cohabitation,  under 
the  statute  of  Massachusetts  of  1784,  ch.  40, 
§  6,  is  not  supported  by  proof  of  a  single  act 
of  criminal  intercourse  between  a  married 
man  and  an  unmarried  woman.  Com.  v. 
Calef,  10  Mass.  153. 

51.  Proof  of  two  acts  of  private  inconti- 
nence, are  not  sufficient  to  sustain  an  indict- 
ment for  lewd  and  lascivious  cohabitation. 
State  V.  Marvin,  12  Iowa,  499. 

52.  Proof  of  adultery  will  not  support  an 
indictment  for  "  living  in  open  lewdness, 
whoredom  and  adultery."  State  v.  Brunson, 
3  Bail.  149. 

53.  On  the  trial  of  an  indictment  for  for- 
nication and  adultery,  it  is  sufficient  to  show 
circumstances  from  which  the  jury  may 
reasonably  infer  the  guilt  of  the  defendants. 
Where  in  such  case,  a  witness  testified  that 
he  went  early  one  morning  to  the  house  of 
the  man,  and  on  knocking  was,  after  some 
delay,  admitted  by  the  woman  who  came  to 
the  door  with  her  dress  on  but  unfastened ; 
that  the  man  was  in  the  only  bed  in  the 
room;  that  the  shoes  of  the  woman  were 
near  the  head  of  the  bed,  and  that  the  bed 
seemed  to  be  very  much  tumbled;  it  was 
held  that  the  court  properly  refused  to 
charge  the  jury  that  there  was  no  evidence 
from  which  the  jury  might  infer  the  crimi- 
nality of  the  defendants.  State  v.  Poteet,  8 
Ired.  2o;  and  see  Peak  v.  State,  10  Humph. 
S9. 

54.  Proof  of  marriage.  In  Massachusetts, 
on  the  trial  of  an  indictment  for  lascivious 


cohabitation,  one  of  the  parties  being 
married,  it  was  held  that  such  marriage 
must  be  proved  by  the  record  of  the  clergy- 
man or  by  witnesses  who  were  present  at  the 
ceremony.     Com.  v.  Barbarick,  15  Mass.  163.. 

55.  Admissions  and  declarations.  On 
the  trial  of  a  man  and  woman  jointly  in- 
dicted for  living  together  in  fornication,  the 
confessions  of  the  woman  are  admissible  in 
evidence  against  her.  But  such  confessions 
can  only  operate  against  the  party  making 
them.     Lawson  v.  State,  20  Ala.  65. 

56.  On  the  trial  of  a  man  and  woman  for 
living  together  in  fornication,  the  admission 
of  the  woman  that  hercodefendant  was  the 
father  of  a  bastard  child  of  which  she  was 
delivered  more  than  twelve  months  after  the 
finding  of  the  indictment,  is  admissible  in 
evidence  against  her  when  connected  with 
other  acts  committed  within  the  period  em- 
braced in  the  indictment.     lb. 

57.  In  such  case,  a  conversation  between 
the  mother  of  the  woman  and  the  doctor,  in 
the  room  in  which  the  woman  was  lying,  a 
few  minutes  after  she  had  been  delivered  of 
a  child,  as  to  the  person  to  whom  the  doc- 
tor should  look  for  his  pay,  in  which  con- 
versation she  took  no  part,  is  not  admissible 
in  evidence  against  her  as  tending  to  show 
her  admission  of  the  truth  of  their  state- 
ments,    lb. 

58.  The  refusal  of  the  man  to  pay  for  the 
lying-in  expenses  of  the  woman,  and  his  dec- 
laration that  the  child  was  not  his,  are  not 
admissible  in  evidence  in  his  behalf,  when 
not  connected  with  any  conversation  or  ad- 
mission introduced  by  the  prosecution,     lb. 

See  Adux,tkry;  Bigamy;  Incest;  Nui- 
sance; Obscene  publications. 


£cttci\ 


1.  Unlawful  to  open.  When  a  letter  is 
once  placed  in  the  post  office,  it  is  in  the 
custody  of  the  law,  and  no  one  except  the 
writer,  or  person  to  whom  it  is  addressed,  or 
his  agent,  has  the  right  while  it  is  there,  to 
open  it  for  the  mere  purpose  of  ascertaining 
its  contents.  The  fact  that  it  was  agreed 
between  a  criminal  and  the  sheriff  that  the 


LETTER.— LIBEL. 


421 


Indictment. 


Meaning  and  Nature. 


latter  might  inspect  all  the  letters  written  by 
the  former  before  they  left  the  jail,  and  that 
the  criminal  violated  the  agreement,  would 
not  authorize  the  sheriflF  to  open  the  letter 
after  it  was  in  the  post  office  to  ascertain  its 
contents,     U.  S.  v.  Eddy,  1  Bis.  227. 

2.  Indictment.  An  indictment  for  open- 
ing the  letter  of  another,  contrary  to  the  act 
of  Congress  of  March  3d,  1825  (4  Stat,  at 
Large,  109),  will  be  sustained,  although  the 
letter  was  not  sealed,  and  was  not  in  the 
custody  of  any  person  having  lawful  charge 
•of  it,  and  although  it  was  addressed  to  a 
person  under  a  fictitious  name ;  and  the  in- 
dictment need  not  charge  that  the  opening 
was  unlawful,  or  that  the  person  to  whom 
the  letter  was  addressed  was  a  real  person. 
U.  S.  V.  Pond,  2  Curtis  C.  C.  265. 

3,  When  defendant  entitled  to  acquit- 
tal. On  the  trial  of  an  indictment  for  open- 
ing a  letter  which  had  been  in  the  custody 
of  a  mail  carrier,  before  it  had  been  deliv- 
ered to  the  person  to  wiiom  it  was  directed, 
with  a  design  to  obstruct  correspondence, 
&c.,  as  it  appeared  that  the  letter  was  de- 
livered by  the  mail  carrier  at  the  place  to 
which  it  was  directed ;  and  the  defendant 
had  resorted  to  no  fraud  or  artifice  to  get  pos- 
session of  it ;  and  as  there  was  no  testimony 
showing  either  the  opening  or  destruction  of 
the  letter,  except  the  defendant's  admissions, 
the  court  directed  an  acquittal.  U.  S.  v. 
Mulvaney,  4  Parker,  164. 

See  Threatening  to  accuse  of  crdie. 


Cibcl. 

1.  MEANINa  AND  NATURE. 

2.  Indictment, 

3.  Evidence. 

4.  Verdict. 

5.  Writ  of  error. 

I.  Meaning  and  nature. 

1.  What  is.  To  charge  a  person  with  be- 
ing "  a  hireling  murderer,"  if  false  and  ma- 
licious, is  slander;  and  if  it  is  written  and 
published,  it  is  a  libel.  Smith  v.  State,  32 
Texas,  594. 


2.  A  malicious  publication,  the  obvious 
design  and  tendency  of  which  is  to  bring 
the  subject  of  it  into  contempt  and  ridicule, 
is  a  libel,  although  it  imputes  no  crime. 
State  V.  Henderson,  1  Rich.  179. 

3.  Where  the  tendency  of  the  publication 
was  to  degrade  a  man  in  the  opinion  of  the 
community,  impeach  his  integrity  as  a  juror, 
and  make  him  an  object  of  public  distrust 
and  contempt,  it  was  held  that  it  was  a  libel. 
Com.  V.  Wright,  1  Cush.  46. 

4.  To  publish  of  a  person  that  he  is 
habitually  profane,  is  a  libel.  Com.  v. 
Batchelder,  Thach.  Crim.  Cas.  191. 

5.  Need  not  be  ill-will.  Although  mal- 
ice is  of  the  essence  of  libel,  yet  it  is  not 
necessary  to  render  an  act  malicious  that  the 
party  be  actuated  by  a  feeling  of  hatred  or 
ill-will  toward  the  individual,  or  that  he  en- 
tertain and  pursue  any  general  bad  purpose 
or  design.  Com.  v.  Snelling,  15  Pick.  337 ; 
Com.  V.  Bonner,  9  Mete.  410. 

6.  The  editor  of  a  paper  is  liable  for  libel- 
ous matter  inserted  therein,  unless  done 
without  his  knowledge  or  consent.  Com. 
V.  Kneeland,  Thach.  Crim.  Cas.  346. 

7.  The  fact  that  the  publication  is  true 
does  not  affect  the  character  of  the  libel  as  a 
public  offense.  Com.  v.  Blanding,  3  Pick. 
304. 

8.  What  is  not.  A  consjjiracy  to  publish 
what  is  true  of  a  person,  is  not  a  criminal 
offense,  if  done  from  good  motives  and  for 
justifiable  ends.  De  Bouillon  v.  People,  2 
Hill,  248 ;  contra^  Com.  v.  Blanding,  supra. 
Simply  charging  another  with  forging,  does 
not  impute  a  criminal  offense,  Jackson  v, 
Weisiger,  2  B.  Mon.  214. 

9.  Where  the  object  of  the  publication  is 
the  removal  of  an  incompetent  person  from 
oflice,  or  the  prevention  of  his  election,  or  to 
impart  useful  information  to  the  community, 
or  to  those  who  have  a  right  to  it,  the  occa- 
sion is  lawful,  and  the  writer  justified. 
State  V.  Burnham,  9  New  Hamp.  34. 

10.  The  following  is  not  libelous  :  "  The 
above  druggist  in  the  city  of  Detroit,  refus- 
ing to  contribute  his  mite  with  his  fellow 
mei'chants,  for  watering  Jefferson  avenue,  I 
have  concluded  to  water  said  avenue  in 
front  of  Pierre  Felle's  store  for  the  week  end- 


422 


LIBEL. 


Meaning  and  Nature. 


Indictment, 


ing  June  27,  1846."    People  v.  Jerome,    1 
Mann.  142. 

11.  The  reception  of  a  libelous  letter 
Avhich  has  not  been  read  or  heard  by  some 
third  person,  does  not  constitute  the  publi- 
cation of  a  libel;  though  the  sending  of 
such  a  letter  is  indictable,  if  the  intention 
in  sending  it  was  to  provoke  a  breach  of 
the  peace.  Hodges  v.  State,  5  Humph. 
112. 

2.  Indictment. 

12.  Must  show  that  the  publication  is  a 
libel.  An  indictment  for  libel  must  set  forth 
matter  which  is  prima  facie  libelous,  and 
whether  or  not  it  is  libelous  is  to  be  deter- 
mined by  the  court ;  or  it  must  charge  that 
the  matter  set  out,  although  not  a  libel  on 
its  face,  was  designed  to  be  so,  and  then  the 
question  is  to  be  left  to  the  jury.  State  v. 
White,  6  Led.  418.  The  charge  in  an  in- 
dictment for  libel  need  not  be  more  specific 
than  the  libelous  publication.  Melton  v. 
State,  3  Humph.  389. 

13.  What  it  ought  to  contain.  It  must 
be  expressly  averred,  when  it  does  not  appear 
from  the  libel  itself,  who  was  its  author,  the 
persons  of  and  concerning  whom  it  was 
written,  and  its  object.  Where  the  writing 
is  not  libelous  on  its  face,  but  has  a  latent 
meaning  which  renders  it  so,  the  latent 
meaning  must  be  set  forth  by  way  of  aver- 
ment or  colloquium,  so  as  to  show  on  the 
face  of  the  indictment  that  the  writing  is  a 
libel.  State  v.  Henderson,  1  Rich.  179; 
State  V.  White,  6  Ired.  418. 

14.  An  indictment  which  alleges  that  the 
defendant  published  a  libel  "tending  to 
blacken  the  honesty,  virtue,  integrity  and 
reputation  of  the  said  A.  B.,  and  thereby 
expose  him  to  public  hatred,  ridicule  and 
contempt,  in  which  said  false,  scandalous 
and  malicious  libel  there  are  defamatory 
and  libelous  matters  of  and  concerning  the 
character  of  the  said  A.  B.,"  sufficiently 
charges  that  the  libel  was  in  relation  to  A. 
B.     Taylor  v.  State,  4  Ga.  14. 

15.  Innuendo.  The  office  of  an  innuendo 
is  to  point  out  and  refer  to  matter  previously 
expressed,  to  explain  the  meaning  of  the 
publication  when  it  is  obscure,  and  to  indi- 
cate the  persons  charged  to  have  been  libeled 


where   they  are  referred   to  in  ambiguous 
terms.     Giles  v.  State,  6  Ga.  276. 

16.  Where  the  persons  charged  to  have 
been  libeled  are  referred  to  ambiguously,  it 
is  not  enough  to  charge  generally  that  the 
paper  was  composed  and  published  "  of  and 
concerning  "  those  persons,  with  innuendos 
accompanying  the  ambiguous  terms  that 
they  mean  those  persons.  There  must  be 
a  positive  averment  that  the  defendant 
under  and  by  the  use  of  the  terms  employed 
wrote  of  and  concerning  those  persons. 
State  V.  Henderson,  1  Rich.  179. 

17.  Averment  of  publication.  An  in- 
dictment which  charges  that  the  defendant 
published  a  libel  as  an  advertisement  in  a 
newspaper,  and  sets  forth  the  libel  signed 
by  a  third  person,  is  sufficient  without  al- 
leging that  the  libel  was  written  by  such 
third  person.  Taylor  v.  State,  4  Ga.  14, 
Charging  that  the  defendant  sent  the  libel  is 
a  sufficient  averment  of  publication.  State 
V.  Barnes,  32  Maine,  530. 

18.  Libelous  matter  must  be  set  out.. 
The  indictment  will  be  bad  unless  it  set  out 
the  alleged  libel  in  words  and  figures.  Pro- 
fessing to  set  it  out  according  to  its  sub- 
stance is  not  sufficient.  State  v.  Brownlow, 
7  Humph.  63 ;  even  though  an  exact  copy 
of  the  libel  be  given.  State  v.  Goodman,  6" 
Rich.  387;  Com.  v.  Wright,  1  Cush.  46; 
Com.  V.  Sweney,  10  Serg.  &  Rawle,  173. 

19.  Where  it  was  charged  that  the  libel 
"  contained  among  other  things  in  substance 
the  following  false,  malicious  and  libelous 
matters,  according  to  the  tenor  and  effect 
follo-\ving,  that  is  to  say,"  it  was  held  that 
as  the  indictment  professed  to  set  forth  the 
substance  and  not  the  words  of  the  libel,  it 
was  insufficient.  State  v.  Brownlow,  7 
Humph.  63. 

20.  An  indictment  alleged  that  the  de- 
fendant "  did  write  a  certain  false  malicious 
libel  of  and  concerning  the  said  A.  B., 
which  said  false,  malicious  and  defamatory 
libel  is  of  the  following  purport  and  effect, 
that  is  to  say,"  and  then  set  out  a  copy  of 
the  libel  within  inverted  commas.  Upon 
motion  in  arrest  of  judgment,  it  was  held 
that  the  indictment  was  bad,  for  the  reason 
that  it  did  not  profess  to  set  out  the  words. 


LIBEL. 


423 


Indictment. 


Evidence. 


of  the  libel.     State  v.  Goodman,  6   Rich. 
387. 

21.  Where  the  indictment  alleged  that 
the  defendant  published  an  account  of  an 
illegal  lottery,  and  set  forth  the  lottery 
scheme,  which  showed  that  the  prizes  con- 
sisted of  sums  of  money,  it  was  held  suffi- 
cient, although  it  was  not  otherwise  averred 
that  the  lottery  was  set  on  foot  for  the  pur- 
pose of  disposing  of  money,  land,  &c. 
Charles  v.  People,  1  Comst.  180. 

22.  The  whole  of  a  book  containing  de- 
famatory matter  need  not  be  set  out.  De- 
scribing the  libel  as  a  letter,  circular  or 
pamphlet  is  not  objectionable,  it  being  only 
the  statement  of  a  mode  of  publication. 
State  V.  Barnes,  32  Maine,  530. 

23.  Where  in  setting  out  a  libel  the  omis- 
sion or  addition  of  a  letter  does  not  alter 
the  word  so  as  to  make  it  different,  the 
Tariance  is  not  material.  Com.  v.  Bucking- 
ham, Thach.  Crim.  Cas.  29. 

24.  On  the  trial  of  an  indictment  for  libel, 
to  the  printed  matter  offered  in  evidence 
there  were  appended  words  and  figures  con- 
stituting a  date  or  memorandum  of  the  time 
and  place  where  it  purported  to  have  been 
published,  with  a  fictitious  mark  or  signa- 
ture, while  nothing  of  the  kind  was  averred 
in  the  indictment.  Held  that  the  variance 
was  not  material.     Com.  v.  Harmon,  2  Gray, 

289.  »    . 

3.  Evidence.       fr 

25.  Descriptive  averment.  An  aver- 
ment which  is  descriptive  of  the  offense 
must  be  proved.  The  charge  of  sending  to 
more  than  one  person  is  not  of  that  char- 
acter, but  is  only  a  statement  of  the  mode 
in  which  the  offense  is  in  part  effected. 
State  V.  Barnes,  32  Maine,  530. 

26.  Proof  of  publication.  Where  an  in- 
dictment alleged  that  a  libel  was  published 
by  the  defendant  on  the  21st  of  November, 
and  the  publishing  was  proved  to  have  been 
on  the  19th  of  the  same  month,  it  was  held 
that  there  was  no  variance,  though  it  would 
have  been  otherwise  if  the  allegation  had 
been  that  the  libel  was  published  in  a  paper 
hearing  date  November  21st.  Com.  v.  Var- 
ney,  10  Cush.  402. 

27.  In  Massachusetts,  where  an  indictment 


for  a  libel  alleged  that  it  was  contained  in  a 
newspaper  printed  and  published  by  two, 
and  it  was  proved  that  the  newspaper  was 
printed  and  published  by  only  one  of  the 
persons  named,  it  was  held  that  under  the 
statute  (of  1864,  ch.  250,  s  1)  the  variance 
was  not  material.  Com.  v.  Morgan,  107 
Mass.  199. 

28.  Where  on  the  trial  of  an  indictment 
for  libel,  the  defendant  testifies  in  his  own 
behalf,  he  may  be  compelled  to  state  on 
cross-examination,  whether  or  not  he  was 
the  publisher  of  the  newspaper  which  con- 
tained the  libel,  although  on  his  direct  ex- 
amination he  was  asked  only  as  to  his 
knowledge  of  the  publication  of  the  libel, 
lb. 

29.  Publication  by  defendant,  when 
presumed.  A  person  who  is  proved  to 
have  once  written  the  libel  which  is  subse- 
quently published,  will  be  deemed  the  maker 
of  it,  unless  he  rebut  the  presumption  by 
showing  that  another  person  is  the  author. 
The  following  instruction  was  held  proper: 
That  if  the  jury  believed  that  the  libel  was 
in  the  handwriting  of  the  defendant,  was 
afterward  found  by  the  roadside  and  read, 
the  presumption  was  that  it  was  published 
by  him  or  by  his  authority,  and  that  if  it 
was  not  so  published,  the  burden  of  proof 
was  on  the  defendant  to  show  how  it  came 
out  of  his  possession.  Giles  v.  State,  6  Ga. 
276. 

30.  Explanation  of  meaning.  On  the 
trial  of  an  indictment  for  libel,  the  meaning 
of  the  language  used  by  the  defendant, 
when  it  is  ambiguous,  or  consists  of  expres- 
sions not  in  common  use  but  has  a  known 
meaning  among  certain  persons,  may  be  ex- 
plained. Thus  it  was  held  that  the  words 
"  State  cop,"  in  a  libel,  might  be  shown  to 
mean  a  deputy  State  constable.  Com.  v. 
Morgan,  107  Mass.  199. 

31.  Admissions.  The  admissions  of  the 
editor  of  the  newspaper  as  to  tlie  author  of 
the  publication  made  in  his  absence,  are  not 
admissible  until  it  is  proved  that  the  de- 
fendant was  the  author.  Com.  v.  Guild, 
Thach.  Crim.  Cas.  329. 

32.  On  the  trial  of  an  indictment  for  a 
libel,  admissions  made  by  the  complainant 


424 


LIBEL. 


Evidence. 


are  in  general  inadmissible  in  behalf  of  the 
defendant,  even  to  prove  facts  tending  to  a 
justification.  Otherwise  as  to  conversations 
or  declarations  wliich  are  a  part  of  the  rest 
gestcE.     De  Bouillon  v.  People,  2  Hill,  248. 

33.  Presumption  of  malice.  When  libel- 
ous matter  is  published,  malice  or  the 
intent  to  injure  is  presumed,  and  the  burden 
of  proof  is  on  the  accused,  to  show  that  the 
publication  was  made  under  such  circum- 
stances as  to  bring  it  within  the  class  of 
privileged  communications.  Smith  v.  State, 
82  Texas,  594. 

34.  When  a  libel  is  sold  in  a  bookseller's 
shop,  by  a  servant  of  the  bookseller  in  the 
ordinary  course  of  his  employment,  or  is 
published  in  a  newspaper,  it  is  sufficient  to 
charge  the  bookseller  or  the  proprietor  of 
the  newspaper  with  the  publication.  In  the 
latter  case,  proof  that  the  defendant  had 
never  seen  the  libel,  and  was  not  aware  of 
its  publication  until  it  was  pointed  out  to 
him  by  a  third  party,  and  that  an  apology 
and  retraction  were  subsequently  published 
in  the  same  newspaper,  will  not  rebut  the 
presumption  of  guilt  arising  from  the  publi- 
cation; his  want  of  knowledge  implying 
criminal  neglect  to  exercise  proper  supervis- 
ion over  his  subordinates.  Com.  v.  Morgan, 
107  Mass.  199. 

35.  Other  publication.  On  a  trial  for 
libel,  proof  may  be  given  of  other  libelous 
publications  of  the  defendant  of  the  same 
nature,  against  the  same  person, for  the  pur- 
pose of  showing  malice  ;  but  not  as  evidence 
that  the  defendant  published  the  libel 
charged.  State  v.  Riggs,  39  Conn.  498; 
s.  c.  1  Green's  Crim.  Reps.  558. 

36.  Proof  in  justification  or  mitigation. 
In  Massachusetts,  it  has  been  held  that  to 
establish  a  justification  under  the  statute, 
the  facts  must  be  proved  as  strictly  and  pre- 
cisely as  if  pleaded  in  a  civil  action.  Com. 
V.  Snelling,  15  Pick.  337. 

37.  A  libel  which  charges  hardness  toward 
the  poor,  and  dissoluteness  of  morals  de- 
rived from  instances  of  bad  conduct  pre- 
Aaously  stated,  cannot  be  justified  by  other 
instances  not  stated  in  the  publication.  De 
Bouillon  V.  People,  2  Hill,  248. 

38.  Where  on  the  trial  of  an  indictment 


for  a  libel,  the  defendant  does  not  cive  the 
truth  in  evidence  in  defense,  he  will  not  be 
permitted  to  show  that  the  person  libeled 
treated  a  portion  of  the  libel  as  a  joke  orig- 
inated by  himself ;  the  public  scandal  and 
injury  to  public  morals  remaining,  however 
lightly  he  may  have  treated  it.  Com.  v. 
Morgan,  107  Mass.  199. 

39.  Evidence  that  the  complainant  had 
used  violent,  abusive  and  slandefous  words 
concerning  tlie  defendant,  which  had  been 
communicated  to  him  about  a  month  pre- 
vious to  the  pul)lication  of  the  libel,  is 
not  admissible  in  mitigation  of  damages. 
Graves  v.  State,  9  Ala.  447. 

40.  Truth  of  publication.  Although  the 
truth  of  the  libel  be  no  justification,  yet  the 
defendant  may  show  the  object  of  the  pub- 
lication to  have  been  justifiable,  after  which 
he  may  give  its  truth  in  evidence,  to  negative 
the  malice  and  intent  to  defame.  Cora.  v. 
Clap,  4  Mass.  168;  Com.  v.  Blanding,  3 
Pick.  304. 

41.  In  Massachusetts,  prior  to  the  year 
1826,  the  truth  of  a  libel  was  not  admissible 
in  evidence.  In  that  year  a  statute  was 
passed  permitting  such  evidence  to  be  given, 
but  providing  that  it  should  not  be  a  justifi- 
cation unless  on  the  trial,  it  was  made  satis- 
factorily to  appear  that  the  matter  charged 
as  libelous  was  published  with  good  mo- 
tives and  for  justifiable  ends.  Com.  v. 
Batchelder,  Thach.  Crim.  Cas.  191. 

42.  In  New  York,  the  libel  cannot  be  jus- 
tified by  proving  the  truth,  unless  it  be  fur- 
ther proved  that  the  publication  was  made 
from  good  motives  and  for  justifiable  ends. 
De  Bouillon  v.  People,  2  Hill,  248. 

43.  In  Virginia,  on  the  trial  of  an  indict- 
ment for  libel,  the  truth  may  be  given  in 
evidence  in  mitigation  of  the  fine.  Com.  v. 
Morris,  1  Va.  Cas.  176. 

44.  In  South  Carolina,  it  was  held  that 
the  defendant  could  not  prove  the  truth  of 
the  libel,  unless  the  prosecution  desired  it. 
State  V.  Lehre,  2  Brev.  446. 

45.  A  person  incurs  the  same  liability  for 
giving  currency  to  a  slander  or  libel  as  if  he 
had  originated  it.  Evidence  of  common  re- 
port, or  of  publications  in  newsi^apers,  is  not 


LIBEL.— LICENSE. 


425 


Evidence. 


Verdict. 


Writ  of  Error. 


Necessity  of. 


admissible  to  prove  the  truth  of  the  charges. 
State  V.  Butman,  15  La.  An.  166. 

46.  But  where  a  writing  claimed  to  be  a 
libel,  alleged  that  the  prosecutor  was  called 
a  murderer,  and  forsworn,  it  was  held  that 
the  defendant  might  introduce  evidence  to 
show  that  there  was,  and  long  had  been,  a 
general  report  in  the  neighborhood,  that  the 
prosecutor  was  a  murderer  and  forsworn. 
State  V.  White,  7  Ired.  180. 

47-  A  written  statement  that  the  prosecu- 
tor was  charged  and  proved  guilty,  by  the 
affidavits  of  seven  or  eight  of  the  most 
respectable  gentlemen  of  the  county,  of  botli 
fraud  and  lying,  is  not  justified  by  affidavits 
employed  before  an  ecclesiastical  tribunal 
upon  a  charge  made  by  the  defendant 
against  the  prosecutor.  When  such  evi- 
dence is  introduced,  the  prosecution  may 
inquire  what  was  the  decision  of  that  tri- 
bunal.    Graves  v.  State,  9  Ala.  447. 

48.  Proof  of  character.  On  a  trial  for 
conspiracy  to  publish  a  lil:)el  imjouting  moral 
delinquencies  to  a  clergyman,  after  evidence 
had  been  given  as  to  the  truth  of  the  impu- 
tations, it  was  held  that  the  character  of  the 
defendant  for  good  morals,  piety,  and  an 
aversion  to  hypocrisy,  might  be  shown  on 
the  question  of  motive.  De  Bouillon  v. 
People,  2  Hill,  248.  In  such  case,  evidence 
of  the  defendant's  general  good  character 
would  be  too  indefinite,  and  therefore,  in- 
admissible,    lb. 

49.  Waiver  by  defendant.  Although  in 
prosecutions  for  liljel,  the  defendant  is  enti- 
tled to  have  the  question  of  libel  or  no 
libel  submitted  to  the  jury,  yet  it  is  compe- 
tent for  him  to  waive  this  right,  in  which 
case  he  cannot  complain  of  a  ruling  of  the 
court,  as  matter  of  law,  that  it  is  a  libel. 
State  V.  Goold,62  Maine,  509;  s,  c.  2  Green's 
Crim.  Reps.  482. 

4.  Verdict. 

50.  What  to  contain.  In  South  Carolina, 
the  jury  may  by  their  verdict  determine 
whether  the  matter  charged  be  or  be  not 
libelous,  as  well  as  the  questions  of  fact  as 
to  the  publication  of  the  writing,  and  its 
truth.     State  v.  Lehre,  2  Brcv.  446. 

51.  At  common  law,  the  publication  of  a 


libel,  was  punishable  by  fine  and  imprison- 
ment.    State  V.  Bumham,  9  New  Hamp.  34. 

52.  Must  be  consistent  with  charge. 
An  indictment  for  libel  charged  the  defend- 
ant with  publishing  of  the  prosecutor  that 
he  "  was  the  most  swindling  and  worthless 
speculator  who  ever  brought  ruin  on  the  city 
of  St.  Louis."  The  jury  found  a  special 
verdict  of  "  guilty  of  charging  the  prosecu- 
tor of  being  a  visionary,  worthless  specula- 
tor ; "  held  that  the  verdict  was  bad  in  find- 
ing matter  not  alleged  in  the  indictment, 
and  in  not  finding  malice.  Webber  v.  State, 
10  Mo.  4. 

5.  Writ  op  error. 

53.  For  exclusion  of  evidence.  On  error 
brought  by  persons  jointly  convicted  of  a 
conspiracy  to  publish  a  libel,  they  are  enti- 
tled to  avail  themselves  of  an  erroneous 
exclusion  of  evidence  tending  to  exonerate 
an  alleged  co-conspirator,  since  proof  of  his 
innocence  might  tend  to  their  benefit.  De 
Bouillon  V.  People,  2  Hill,  248. 

54.  Record.  An  obscene  book  or  picture 
can  never  with  propriety  be  spread  upon 
the  records  of  the  court.  Com.  v.  Holmes, 
17  Mass.  336. 


Ciccu5C. 


1.  Necessity  of.  It  is  not  a  defense  to  an 
indictment  for  keeping  an  eating  house 
without  a  license,  that  the  defendant  con- 
ducted the  business  as  agent.  Winter  v. 
State,  30  Ala.  22. 

2.  In  New  York,  any  person  may  keep  an 
inn,  tavern,  or  hotel,  without  a  license,  un- 
less he  sell  intoxicating  liquors.  People  v. 
Muqjhy,  5  Parker,  130, 

3.  To  partnership.  In  Alabama,  f\lthough 
a  license  may  be  granted  to  a  partnership, 
upon  each  partner  complying  with  the  stat- 
ute as  to  certificate,  oath,  &c.,  yet  a  license 
to  one  partner  individually  confers  no  au- 
thority upon  his  copartners  or  the  firm. 
Long  V.  State,  27  Ala.  32. 

4.  Unlawful  granting  of.  To  constitute 
a  criminal  offense  in  granting  a  license  under 
the  statute  of  New  York,  the  license  must 


42G 


LICENSE.— LOTTERY. 


Indictment. 


What  Constitutes. 


have  been  granted  with  full  knowledge  of 
the  facts,  and  willfully.  The  offense  con- 
sists in  the  moiive  and  intent  with  wliich 
the  act  was  done.  The  mere  granting  of  a 
license  which  a  court  or  jury  might  say 
ought  not  to  have  been  granted,  is  not  an 
offense;  but  the  jury  must  be  able  to  say 
from  the  evidence  that  the  commissioners,  or 
such  as  are  pronounced  guilty,  knew  at  the 
time  that  it  was  not  a  proper  case  for  a  li- 
cense under  the  statute,  and  nevertheless 
granted  it  in  willful  disregard  of  the  statute 
— that  is,  that  they  knowingly  and  purpose- 
ly disregarded  the  statute.  People  v.  Jones, 
54  Barb.  311. 

5.  Indictment.  An  indictment  for  a  sale 
of  merchandise,  in  violation  of  the  license 
law,  must  state  to  whom  the  goods  were 
sold,  or  allege  that  the  person  or  persons  are 
unknown.     Spielman  v.  State,  27  Md.  530. 

6.  In  Alabama,  an  indictment  under  the 
statute  (Code,  §§  397,  399),  for  exhibiting 
feats  of  sleight  of  hand  without  a  license, 
need  not  allege  that  the  exhibition  was  for 
profit ;  nor  need  that  fact  be  proved  on  the 
trial.  Spaight  v.  State,  29  Ala.  32 ;  Pike  v. 
State,  85  lb.  419. 

7.  Evidence.  Where,  on  a  trial  for  ex- 
hibiting feats  of  sleight  of  hand  without  a 
license,  it  appeared  that  the  alleged  exhibi- 
tion was  a  musical  entertainment,  regularly 
licensed,  it  was  held  competent  for  the  pris- 
oner to  show,  as  a  part  of  the  res  gestxe,  that 
he  publicly  announced,  while  the  audience 
were  assembling  for  the  entertainment,  that 
he  would  show  feats  of  legerdemain,  free  of 
charge.     Spaight  v.  State,  supra. 

8.  Where,  on  the  trial  of  a  complaint  for 
refusing  to  allow  a  negro  to  play  at  billiards 
in  a  public  billiard  room,  it  was  not  proved 
that  the  room  was  licensed,  it  was  held  that 
a  conviction  could  not  be  sustained.  Com. 
V.  Sylvester,  13  Allen,  247. 

See  Spirituous  liquors,  sale  of. 


£ottcnj. 

1.  What  constitutes. 

2.  Indictment. 

1.  What  constitutes. 
1.  What  deemed.     A  revolving  wheel, 


with  an  index,  which,  upon  being  turned, 
determines  whether  the  holder  of  cards 
marked  with  numbers  corresponding  with 
numbers  on  the  wheel,  wins  or  loses,  is  a 
lottery.     Chavannah  v.  State,  49  Ala.  396. 

2.  The  distribution  of  prizes  by  chance 
constitutes  a  lottery.  Randle  v.  State,  42 
Texas,  580.  Where,  according  to  a  scheme 
upon  which  the  defendants  professed  to  act, 
there  was  a  correspondence  between  the 
numbers  placed  on  books  purchased,  and 
the  different  articles  proposed  as  gifts  or 
prizes  the  jDurchaser  was  entitled  to  have,  it 
was  held  that  it  was  a  lottery  within  the 
statute  of  New  Hampshire.  State  v.  Clarke, 
33  New  Hamp.  329. 

3.  A  public  exhibition  was  conducted 
thus:  Each  person  got  a  ticket  at  the  door, 
with  a  number  on  it.  At  the  close  of  the 
exhibition  one  of  the  proprietors  called,  at 
will,  any  number,  and  the  person  holding 
the  corresponding  ticket  presented  himself, 
when,  if  the  exhibitor  liked  his  appearance, 
he  gave  him  one  of  the  articles  advertised  as 
gifts.  It  was  also  a  condition  that,  at  the 
option  of  the  proprietors,  there  should  be  no 
distribution  of  gifts.  Held  a  lottery.  State 
V.  Shoris,  3  Vroom  (32  N.  J.)  398. 

4.  The  constitution  of  the  American  Art 
Union  provided  that  the  society  should  pur- 
chase such  works  of  art  as  the  state  of  the 
treasury  allowed,  and  that  they  were  to  be- 
come, by  lot,  the  property  of  the  members, 
each  member  being  entitled  to  one  chance  or 
share  in  the  distribution,  for  each  five  dol- 
lars subscribed  and  paid  by  him,  the  mode 
of  distribution  being  particularly  pointed 
out  in  the  by-laws.  The  association  jiub- 
licly  announced  that,  for  the  payment  of 
five  dollars,  any  person  would  become  a 
subscriber,  and  entitled  to  an  engraving,  to 
a  copy  of  the  bulletin  of  their  proceedings, 
and  to  a  chance  of  one  of  a  number  of  paint- 
ings to  be  "  distributed  by  lot  among  the 
members,  each  member  having  one  share  for 
every  five  dollars  paid  by  him."  Held  not 
unlawful  within  1  N.  Y.  R.  S.  666,  §§  30,  31. 
People  V.  Am.  Art.  Union,  7  N.  Y.  240. 

5.  The  defendant  was  indicted  for  selling 
a  lottery  ticket,  of  which  the  following  was 
a  copy:  "Chicago   Industrial  College  and 


LOTTERY 


427 


What  Constitutes. 


Home  Festival,  This  ticket  is  a  receipt  for 
five  dollars  in  payment  for,  and  delivery  of, 
a  copy  of  a  steel-plate  engraving  and  admis- 
sion to  our  concerts  and  lectures  for  which 
it  is  sold.  By  order  of  the  officers.  Thomas 
&  Co.,  General  Agents."  With  the  ticket  a 
steel-plate  engraving  was  delivered,  and  a 
hill,  entitled  "  Grand  National  Festival  to 
erect,  in  the  city  of  Chicago,  an  Industrial 
College  and  Home  for  unfortunate  females." 
The  bill  stated  that  there  would  be  given  a 
series  of  musical  receptions,  and  a  course  of 
lectures,  at  the  close  of  which,  and  after  the 
sale  of  200,000  copies  of  steel-plate  engrav- 
ings, there  would  be  distributed,  as  pres- 
ents to  the  purchasers  of  engravings,  "  in  a 
just  and  legal  manner,"  $200,000  in  presents, 
amounting,  in  number,  to  3,012.  Twenty- 
eight  hundred  of  this  number  were  newspa- 
papers,  at  a  price  from  $2  to  $12  each.  The 
remaining  212  were  estimated  at  from  $35,- 
000,  to  $50,000.  Eeld  a  lottery.  Thomas 
V.  People,  59  111.  160;  s.  c.  2  Green's  Crim. 
Reps.  551. 

6.  Lottery  tickets.  A  guaranty,  by 
which  the  guarantor  binds  himself  that  he 
will  pay  the  prize  which  may  be  drawn  to 
a  certain  number  in  a  lottery,  when  sold  by 
the  proprietor  of  the  ticket  or  a  duly  au- 
thorized agent  of  the  proprietor,  is  a  lottery 
ticket,  though  not  in  the  form  of  one.  Com. 
v,  Chubb,  5  Rand.  715. 

7.  A  ticket  purported  to  entitle  the  holder 
to  whatever  prize  should  be  drawn  by  its 
corresponding  number,  in  a  scheme  called  a 
"  prize  concert."  The  prizes  were  gifts  in 
greenbacks  and  other  property.  One-half 
of  all  the  tickets  represented  blanks,  and 
every  other  ticket  was  to  draw  a  prize.  Held 
that  this  constituted  a  lottery.  Com.  v. 
Thacher,  97  Mass.  583. 

8.  Advertisement.  In  Massachusetts,  the 
printer  of  a  newspaper,  containing  an  ad- 
vertisement of  lottery  tickets,  is  liable  to 
indictment,  though  not  concerned  in  the 
sale  of  the  tickets.     Com.v.Clapp,5  Pick. 41. 

9.  In  the  same  State,  a  sign-board  at  a 
person's  place  of  business,  stating  that  lot- 
tery tickets  were  for  sale  there,  was  held  an 
advertisement  within  the  statute  of  1825, 
ch,  184,   and  to   be  a  new   advertisement 


every  day  it  was  kept  up  after  the  passing 
of  the  statute,  although  erected  before. 
Ibid. 

10.  Prohibitory  statutes.  In  New  York, 
under  the  statute  (1  R.  S.  665,  §  28),  it  is  a 
misdemeanor  to  publish  in  that  State  an 
account  of  a  lotteiy  to  be  drawn  in  another 
State  or  territory,  although  such  lottery  is 
lawful  in  the  place  where  it  is  to  be  drawn. 
People  V.  Charles,  3  Denio,  212;  1  Comst. 
180. 

11.  Construction  of  the  Constitution  of 
New  York  (art.  1,  §  10),  and  of  the  statute 
(R.  S.  §  22),  relative  to  "raffling  and  lot- 
teries." People  V.  Am.  Art  Union,  7  N.  Y. 
240. 

12.  The  statute  of  Connecticut  (R.  S.  tit. 
6,  §  96),  making  it  a  criminal  offense  to  pub- 
lish within  the  State,  any  waitten  or  printed 
proposals  to  sell  or  procure  lottery  tickets,  is 
not  unconstitutional;  and  it  is  applicable 
to  domestic  and  foreign  lotteries  alike, 
whether  they  are  or  are  not  authorized  by 
the  laws  of  the  State  in  which  they  are  lo- 
cated, and  without  reference  to  the  place 
where  the  tickets  are  to  be  procured  or  sold. 
State  V.  Sykes,  28  Conn.  225. 

13.  An  information  charged  that  the  ac- 
cused published  a  proposal  to  sell  and  pro- 
cure lottery  tickets.  The  instrument,  which 
was  set  out  in  words  and  figures,  was  de- 
nominated "  a  caution  notice,"  and  imported 
a  caution  against  the  devices  of  fraudulent 
ticket  vendors,  and  the  purchase  of  spurious 
lottery  tickets.  It  stated  that  the  country 
was  flooded  with  swindling  lotteries,  what 
lotteries  and  tickets  should  be  avoided, 
what  lotteries  were  authorized,  how  the 
genuine  tickets  could  be  distinguished  from 
the  spurious,  and  that  purchasers  in  the 
Maryland  State  lotteries  might  be  sure  of 
fair  and  honest  drawings.  But  there  was 
no  proposal  to  sell  or  procure  lottery  tickets, 
and  the  author  did  not  profess  to  have  such 
things  for  sale,  or  to  be  engaged  in  the  busi- 
ness of  selling  or  procuring  them.  Held 
not  a  violation  of  the  statute  of  Connecticut 
(R.  S.  tit.  G,  §  96),  which  prohibited  the 
publishing  within  tlie  State,  of  any  written 
or  printed  proposals  to  sell  or  procure  lottery 
tickets.     lb. 


428 


LOTTERY 


What  Constitutes. 


Indictment. 


14.  An  indictment  may  be  maintained 
under  the  statute  of  Missouri,  of  Dec.  19th, 
1843,  for  the  sale  of  a  lottery  ticket,  al- 
though the  statute  is  in  the  plural,  prohib- 
iting the  sale  of  lottery  tickets.  Freleigh  v. 
State,  8  Mo.  606. 

15.  In  Alabama,  a  resale  of  a  ticket  in  a 
lottery  not  authorized  by  law,  by  a  third 
person  not  connected  with  the  lottery,  is 
not  a  violation  of  the  statute  (Code,  §  3254), 
when  his  previous  purchase  extinguished  all 
interest  of  ownership  of  every  agent,  con- 
ductor, manager  or  proprietor  in  the  ticket. 
Salamon  v.  State,  38  Ala.  83. 

2.  Indictment. 

16.  Descriptive  averments.  The  object 
of  the  lottery  will  be  sufficiently  stated  in 
the  indictment,  by  setting  out  verbatim  an 
advertisement  that  the  lottery  was  made  for 
the  purpose  of  disposing  of  money  or  prop- 
erty, without  other  averment.  People  v. 
Charles,  3  Denio,  212;  affi'd  1  N.  Y.  180. 

17.  In  New  York,  an  indictment  for  set- 
ting on  foot  a  lottery  contrary  to  the  statute, 
must  state  the  object  of  the  lottery.  A  gen- 
eral allegation  of  its  object  is  not  sufficient. 
But  the  amount  of  the  lottery  need  not  be 
stated.  People  v.  Taylor,  3  Denio,  91.  The 
lottery  must  be  described  as  one  set  on  foot 
for  the  purpose  of  disposing  of  property, 
according  to  the  terms  of  the  statute  (I  R. 
S.  §  27).  People  v.  Payne,  3  Denio,  88. 
The  indictment  need  not  set  out  the  tickets 
.sold,  or  name  the  persons  to  whom  they 
were  sold,  it  being  alleged  that  their  names 
are  unknown.  People  v.  Taylor,  supra;  or 
allege  that  the  lottery  was  not  authoi'ized  by 
law.  People  v.  Sturtevant,  28  Wend.  418; 
nor  aver  that  the  lottery  was  established  in 
the  State,  or  got  up  for  the  purpose  of  dis- 
posing of  real  estate,  goods,  money  or  things 
in  action.     People  v.  Warner,  4  Barb.  314. 

18.  An  indictment  which  alleged  that  the 
defendant  unlawfully  did  set  on  foot  a  cer- 
tain lottery  for  the  purpose  of  exposing  cer- 
tain money  to  abide  the  drawing  of  such 
lottery,  he  being  unauthorized,  &c.,  without 
containing  other  matter  of  description,  was 
held  insufficient.  People  v.  Taylor,  3  Denio, 
91. 


19.  An  indictment  was  held  insufficient 
which  alleged  that  the  defendant  kept  a 
certain  common  gaming  house,  in  which  he 
sold  and  furnished  tickets  in  lotteries  unau- 
thorized by  law,  to  divers  persons.  People 
V,  Jackson,  3  Denio,  101. 

20.  In  Massachusetts,  an  indictment  under 
the  act  of  1825,  ch.  184,  for  causing  lottery 
tickets  to  be  advertised  for  sale,  need  not 
allege  that  they  were  advertised  as  for  sale 
within  the  commonwealth,  or  charge  that 
the  lottery  was  in  the  State,  and  against  the 
law  thereof,  or  set  forth  the  lottery.  Com. 
V.  Clapp,  5  Pick.  41. 

21.  An  indictment  charged  that  the  de- 
fendant did  unlawfully  and  knowingly  per- 
mit in  the  dwelling-house  and  building  then 
and  there  actually  uged  and  occupied  by  him, 
the  setting  up  of  a  lottery,  in  which  certain 
articles  of  personal  property  and  of  value 
were  disposed  of  by  the  way  of  a  lottery. 
Held  that  it  was  unnecessary  to  allege  that 
it  was  "  a  lottery  not  authorized  by  law  for 
money,"  or  to  describe  i>articularly  the 
articles  which  were  the  subject  of  the  lot- 
tery, their  value,  and  owners,  or  to  name  the 
parties  who  drew  them  as  prizes.  Com.  v. 
Horton,  2  Gray,  69. 

22.  In  New  Hampshire,  an  indictment 
charging  that  "F.,  of  Concord,  unlawfully 
sold  to  one  C.  part  of  a  ticket,  that  is  to 
say,  one  quarter  part  of  a  ticket,  at  and  for 
the  price  of  fifty  cents,  in  a  certain  lottery 
not  authorized  by  the  Legislature  of  the 
State,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,"  without  any 
description  of  the  ticket  or  lottery,  was  held 
good,  since  all  lotteries  were  prohibited. 
State  V.  Follet,  6  New  Hamp.  53. 

23.  A  ticket  in  a  lottery  entitling  the 
holder  to  one  fourth  of  the  prize  drawn, 
although  commonly  called  a  quarter  of  a 
ticket,  may  be  described  as  a  lottery  ticket 
in  an  indictment  under  the  statute  of  Mis- 
souri of  December  19,  1843,  "to  abolish 
lotteries  and  to  prohibit  the  sale  of  lottery 
tickets  in  this  State."  Freleigh  v.  State,  8 
Mo.  606. 

24.  In  Pennsylvania,  an  indictment  for 
selling  lottery  tickets  must  allege  the  name 


MAGISTRATE.— MALICIOUS   MISCHIEF. 


429 


Proceedings  before,  Continuous. 


What  Constitutes. 


of  the  lottery  and  the  number  of  the  tickets 
Com.  V.  Gillespie,  7  Serg.  &  Rawle,  469. 


illagistratc. 


Proceedings  before,  continuous.  An  ex- 
amining magistrate  does  not  act  judicially 
in  the  technical  sense,  but  as  conservator  of 
the  peace.  His  proceedings  are  regarded  as 
continuous,  unless  forinally  adjourned ;  and 
where  a  legal  holiday  intervenes,  the  close  of 
business  on  one  day  carries  them  over  to 
the  next  business  day.  Hamilton  v.  People, 
29  Mich.  173. 


ittaliciDus  Arrest 


See  False  imprisonment. 


UTalicious  iitiscljicf, 

1.  What   constitutes. 

2.  Indictment. 

3.  Evidence. 

4.  Vekdict. 


1.  What    constitutes. 

1.  Meaning.  Malicious  mischief  is  the 
willful  destruction  of  personal  property  from 
ill-will  or  resentment  toward  its  owner  or 
possessor,  and  out  of  a  spirit  of  wanton 
cruelty  or  wicked  revenge.  State  v.  Robin- 
son, 3  Dev.  &  Batt.  130.  Where  it  was 
proved  that  the  defendant  supposed  he  had 
a  right  to  do  the  act,  it  was  held  that  a  con- 
viction could  not  be  supported.  Goforth  v. 
State,  8  Humph.  37. 

2.  In  Massachusetts,  to  constitute  the  of- 
fense under  the  statute  of  1803,  ch.  IGO,  it 
is  not  sufficient  that  the  injury  was  willful 
and  intentional,  but  it  must  have  been  done 
out  of  cruelty,  hostility,  or  revenge.  Com. 
V.  Williams,  110  Mass.  401;  s.  c.  2  Green's 
Crim.  Reps.  265.  It  is  erroneous  to  charge 
the  jury  that  the  word  maliciously  means 
"the  willfully  doing  of  an  act  prohibited  by 
law,  and  for  which  the  defendant  had  no 
lawful  excuse,"  and  that   "  moral  turpitude 


of  mind  need  not  be  shown.''    Com.  v.  Wal- 
den,  3  Cush.  558. 

3.  What  essential.  The  essence  of  the 
crime  of  malicious  mischief  is  the  injury  to 
property.  Without  this,  an  act,  however 
wanton  and  dangerous,  does  not  constitute 
it.     Wait  V.  Green,  5  Parker,  185. 

4.  Acts  which  will  sustain  an  indictment 
for  arson  or  larceny  will  support  a  charge 
for  malicious  mischief.  State  v.  Leavitt,  33 
Maine,  18;5. 

5.  At  common  law.  It  has  been  held  not 
an  indictable  oft'ense  at  common  law  to  in- 
jure the  private  property  of  another,  though 
done  forcibly,  unless  the  act  be  with  a 
breach  of  the  peace.  State  v.  Wheeler,  3 
Vt.  344 ;  lilies  v.  Knight,  3  Texas,  313.  But 
in  New  York,  it  was  held  that  the  wanton 
destruction  of  personal  property  in  the  day 
time,  clandestinely  and  maliciously,  was 
a  misdemeanor  at  common  law.  People  v. 
Moody,  5  Parker,  568. 

6.  It  is  an  oflense  at  common  law  for  a 
person  to  shoot  or  wound  stock  found  tres- 
passing upon  his  premises.  In  Illinois,  a 
person  so  doing  may  be  convicted  and  fined 
under  the  statute  for  malicious  mischief. 
Snap  V.  People,  19  III.  80. 

7.  To  put  an  irritating  substance  called 
cow-itch  on  a  towel  and  in  a  tub  of  water 
used  by  another  person  is  indictable  at  com- 
mon law.  People  v.  Blake,  1  Wheeler's 
Crim.  Cas.  490. 

8.  Injury  of  animals.  It  is  indictable  ta 
maliciously,  willfully  and  T\ickedly  kill 
another's  horse  or  cow.  Resp.  v.  Teischer,  1 
Dall.  335 ;  People  v.  Smith,  5  Cow.  258 ; 
and  stabbing  another's  horse  is  indictable 
without  proof  of  express  malice.  State  v. 
Council,  1  Overt.  305. 

9.  Malice  toward  the  owner  is  essential  to 
constitute  the  oiFense  of  malicious  injury  to 
animals;  otherwise,  it  is  a  mere  trespass  and 
not  malicious  mischief.  Where  the  injury 
is  unlawful,  malice  may  be  presumed  from 
circumstances.  Hill  v.  State,  43  Ala.  335; 
Hobson  V.  State,  44  II).  381. 

10.  To  render  the  defendant  liable  under 
the  statute  of  Tennessee  (of  1803,  ch.  9)  for 
maliciously  killing  cattle,  there  must  be 
malice  against  the  owner  of  the  cattle,  and 


430 


MALICIOUS   MISCHIEF. 


What  Constitutes. 


Indictment. 


not  merely  agaiust  the  animals,  and  it  must 
be  so  alleged  and  ijroved.  State  v.  Wilcox, 
3  Yerg.  278. 

11.  In  Indiana,  an  indictment  under  the 
statute  (R.  S.  cli.  53,  §  71)  for  malicious  mis- 
chief, will  be  supported  by  proof  of  killing 
a  dog.  State  v.  Sumner,  2  Carter,  377.  In 
Virginia,  a  dog  is  not  property  within  the 
meaning  of  the  code  (ch.  193,  §58),  for  the 
killing  of  which  an  indictment  will  lie. 
Davis  V.  Com.  17  Gratt.  617.  In  New 
Hampshire,  dogs  are  under  the  protection  of 
the  statute  (R.  S.  ch.  215,  §  18),  and  an  in- 
dictment will  lie  for  their  willful  and  mali- 
cious destruction.  State  v.  McDuffie,  34 
New  Hamp.  510. 

12.  In  South  Carolina,  shaving  the  mane 
and  cropping  the  tail  of  a  horse,  in  the 
owner's  stable,  was  held  not  to  constitute 
the  offense  of  disfiguring  within  the  meaning 
of  the  statute.     State  v.  Smith,  Cheves,  157. 

13.  Destruction  of  property.  Tearing 
down  advertisements  for  the  sale  of  land  for 
taxes,  and  refusing  to  put  them  up  again, 
is  an  indictable  offense.  Pennsylvania  v. 
Gillespie,  Addis.  267. 

14.  Where  a  person  whose  property  had 
been  seized  for  taxes  and  a  sale  of  it  duly 
advertised,  after  replevying  it,  tore  down 
the  advertisement  of  sale,  it  was  lield  that 
he  was  liable  to  indictment.  Faulds  v. Peo- 
ple, 66  111.  210. 

15.  The  willful  and  malicious  cutting  off 
of  a  rope  having  a  banner  attached  to  it,  by 
means  of  which  the  rope  and  banner  were 
greatly  injured,  is  an  indictable  offense 
within  the  statute  of  New  Hampshire  (R.  S. 
ch.  215,  §  18).  State  v.  Webster,  17  New 
Hamp.  543. 

16.  It  is  not  indictable,  unlawfully  and 
maliciously  to  destroy  the  saddle  bags  of 
another.     Shell  v.  State,  6  Humph.  283. 

17.  A  person  in  possession  of  land  under 
a  lona  fide  claim  of  title,  cannot  be  guilty  of 
malicious  mischief  in  tearing  down  a  fence 
erected  on  the  land  against  his  consent.  On 
the  trial  of  an  indictment  for  malicious  mis- 
chief, it  appeared  that  there  was  a  contro- 
versy between  the  prosecutors  and  the  de- 
fendant as  to  the  possession  of  land,  the  de- 
fendant being  in  victual  possession,  and  that 


on  the  prosecutors  attempting  to  run  a 
division  fence  across  it,  the  defendant  took 
up  the  posts  and  tore  off  the  boards  while 
the  fence  was  in  process  of  construction ; 
that  the  defendant  forbade  them  from 
making  the  fence,  protesting  that  they  had 
no  right  so  to  do,  and  that  he  was  paying 
rent  for  the  whole  premises.  Held  that  the 
defendant  was  entitled  to  acquittal.  Sattler 
v.'People,  59  111.  08;  s.  c.  2  Green's  Crim. 
Reps.  550. 

18.  An  indictment  for  malicious  mischief 
in  destroying  a  quantity  of  standing  Indian 
corn  cannot  be  supported ;  the  offense  being 
confined  to  personal  projierty.  State  v. 
Helms,  5  Ired.  364. 

19.  In  Virginia,  a  person  was  charged 
with  knowingly,  willfully,  and  without 
lawful  authority,  cutting  down  and  carry- 
ing away  a  line  tree  standing  on  the  division 
line  between  his  land  and  the  land  of  an- 
other. Held  not  an  oftense  within  any 
statute  then  in  force  in  that  State.  Powell's 
Case,  8  Leigh,  719. 

2.  Indictment. 

20.  Averment  of  malice.  An  indictment 
for  malicious  mischief  must  either  expressly 
allege  malice  against  the  owner,  or  other- 
wise describe  the  offense.  Charging  that 
the  act  was  done  feloniously,  willfully  and 
maliciously,  without  stating  that  it  was 
done  mischievously,  or  with  malice  against 
the  owner,  is  not  sufficient.  State  v.  Jack- 
son, 12  Ired.  329. 

21.  In  Kentucky,  an  indictment  under  the 
statute  (R.  S.  ch.  28,  art.  25,  §  8),  which 
provides  for  the  punishment  of  any  person 
who  shall  willfully  kill,  disfigure  or  maim 
any  horse,  cow,  &c.,  not  his  own,  without 
the  consent  of  the  owner,  charging  that  the 
defendant  imlm<^fuU.y  killed  the  horse  of  R. 
C,  omitting  the  word  "  willfully,"  was  held 
fatally  defective.  Com.  v.  Turner,  8  Bush, 
1 ;  8.  c.  1  Green's  Crim.  Reps.  293. 

22.  An  indictment  for  cutting  timber  on 
another  person's  land,  must  allege  that  it 
was  done  knowingly.  State  v.  Arnold,  39 
Texas,  74. 

23.  Nature  of  act.  An  indictment  for 
malicious  mischief  need  not  allege  that  the 


MALICIOUS   MISCHIEF. 


431 


Indictment. 


offense  was  committed  with  force  and  arms. 
Taylor  v.  State,  6  Humph.  285. 

24.  Description  of  property.  Where  an 
indictment  for  defacing  and  destroying  a 
promissory  note,  alleges  that  the  tenor  of 
the  note  cannot  be  set  forth  because  it  was 
destroyed  by  the  defendant,  it  must  state  the 
substance  and  effect  of  the  instrument. 
Birdg  V.  State,  31  Ind.  88. 

25.  In  Vermont,  it  was  held  that  an  in- 
dictment for  wounding  a  steer  need  not 
allege  in  the  words  of  the  statute  that  the 
steer  was  "cattle  or  other  beast."  State  v. 
Abbott,  20  Vt.  537. 

26.  An  indictment  under  a  statute  (R.  S. 
of  Mass.  ch.  126,  §  42)  punishing  a  person 
who  shall  maliciously  or  wantonly  break  the 
glass  in  any  building,  must  allege  that  the 
glass  was  a  part  of  a  building.  An  aver- 
ment that  it  was  in  a  building  is  not  suffi- 
cient. Com.  V.  Bean,  11  Cush.  414;  s.  p. 
Com.  V.  Lindsay,  lb.  415,  iwte. 

27.  An  indictment  under  a  statute  punish- 
ing the  willfully  and  maliciously  cutting 
down  a  tree  which  had  been  marked  to 
show  the  "  point  on  a  boundary  of "  land, 
alleged  that  the  defendant  willfully  and 
maliciously  cut  down  a  tree  which  had  been 
marked  in  order  to  designate  "  a  corner  of  a 
tract  of  land."  Held  insufficient.  State  v. 
Mallory,  5  Vroom  (34  N.  J.)  410. 

28.  In  Indiana,  an  indictment  for  mali- 
cious mischief  in  destroying  and  injuring  the 
windows  of  a  county  seminary  which  was 
under  the  management  of  county  commis- 
sioners, was  held  in  efi'ect  to  charge  the 
malicious  destruction  of  public  property; 
and  it  was  further  held  that  the  prosecution 
need  not  prove  that  the  title  to  the  seminary 
was  in  the  county.  Read  v.  State,  1  Smith, 
369. 

29.  Averment  of  ownership.  An  indict- 
ment for  maliciously  killing  a  domestic 
animal  must  eithcJr  allege  the  owner's  name 
or  state  that  the  name  of  the  owner  is  un- 
knoAvn.     State  v.  Pierce,  7  Ala.  723. 

30.  An  indictment  under  the  statute  of 
New  Ilamp.shire  (R.  S.  ch.  215,  §  3)  for 
maliciously  placing  obstructions  on  a  rail- 
road track  need  not  aver  the  legal  existence 
or    organization  of    the   company,   or    tlie 


ownership  of  the  road.  Where  it  was 
charged  that  the  defendants  "  willfully  and 
maliciously  placed  upon  the  track  of  the 
Boston  and  Maine  railroad"  in  S.  an  ob- 
struction, it  was  held  that  the  averment  was 
one  of  description  and  not  of  property,  and 
that  it  might  be  proved  by  parol  that  the 
road  was  known  by  the  name  alleged. 
State  V.  Wentworth,  87  New  Hamp.  196. 
Such  indictment  need  not  allege  that  the 
railroad  was  a  corporation  or  carrier,  or  a 
way  or  road  used  for  travel.     lb. 

31.  Allegation  of  value.  Where  the 
statute  does  not  make  the  punishment  for 
injuring  an  animal  depend  upon  the  value 
of  the  animal,  it  is  not  necessary  to  allege 
the  value  in  the  indictment.  Caldwell  v. 
State,  49  Ala.  34. 

32.  Description  of  injury.  An  iudict- 
ment  alleging  that  the  defendant  willfully 
shot  a  domestic  animal  with  intent  to  injure 
the  owner  must  state  the  amount  of  the  in- 
jury.    State  V.  Heath,  41  Texas,  426. 

33.  In  Massachusetts,  an  indictment  which  ' 
alleges  that  the  defendants  did  willfully  and 
maliciously  kill  the  horse  of  another  person 
named,  sufficiently  avers  the  statute  offense 
(R.  S.  ch.  126,  §  39)  without  setting  forth 
the  manner  of  the  killing.     Com.  v.  Sowle, 

9  Gray,  304. 

34.  In  Missouri,  an  indictment  under  the 
statute  prohibiting  the  torture  of  animals, 
which  merely  charged  the  tying  of  brush  or 
boards  to  the  tail  of  a  horse,  without  any 
other  averment,  was  held  insufficient,  such 
act  not  necessarily  producing  torture.  State 
V.  Pugh,  15  Mo.  509. 

35.  In  Massachusetts,  an  indictment  under 
the  statute  (Gen.  Stats,  ch.  161)  for  destroy- 
ing hens  by  poison  need  not  state  what  kind 
of  poison  was  used,  and  the  allegation  that 
the  act  was  done  unlawfully,  willfully  and 
maliciously  is  sufficient  without  an  aver- 
ment of  guilty  knowledge.  The  intent  to 
poison  the  hens  and  the  placing  of  the  poison 
where  they  found  and  ate  it,  is  causing 
them  to  eat  it;  and  whereseveral  hens  were 
destroyed  the  indictment  may  state  their 
collective  value.  Com.  v.  Falvey,  108  Mass. 
304. 

36.  An    indictment  under  the  statute  of 


432 


MALICIOUS   MISCHIEF. 


Evidence. 


New  Hampshire  (R.  S.  ch.  215,  §  3)  for 
maliciously  placing  obstructions  on  a  rail- 
road track,  "  whereby  the  life  of  any  person 
may  be  endangered,"  is  sulEcient  after  ver- 
dict if  it  contain  the  averment,  "whereby 
the  lives  of  sundry  persons,  to  wit,  twenty 
persons  riding  in  said  cars  upon  said  railroad 
were  greatly  endangei-ed,"  without  naming 
the  persons.  State  v.  Wentworth,  37  New 
Hamp.  196. 

3.  Evidence.         ^r 

37.  Proof  of  ownership.  On  the  trial  of 
an  indictment  for  maliciously  killing  a  do- 
mestic animal,  it  must  be  proved  that  there 
was  an  owner  and  who  he  was.  But  it  is 
not  essential  to  a  conviction  that  the  de- 
fendant before  committing  the  act  declared 
his  intention  to  injure  the  owner,  or  did  or 
said  anything  showing  express  malice. 
Malice  will  be  presumed.  State  v.  Gamer, 
8  Porter,  447. 

38.  Where  an  indictment  for  breaking 
down  a  dam  alleges  the  ownership  of  the 
dam,  it  must  be  proved  as  laid.  State  v. 
Weeks,  30  Maine,  183. 

39.  On  a  trial  for  maliciously  cutting  and 
girdling  fruit  trees,  described  in  the  indict- 
ment as  the  property  of  B.,  it  is  sufiicient 
proof  of  ownership  to  prove  that  the  land 
on  which  the  trees  stood  was  in  the  posses- 
sion and  occupation  of  B.  at  the  time  the 
offense  was  committed.  People  v.  Horr,  7 
Barb.  9. 

40.  A  complaint  for  maliciously  breaking 
glass  in  a  buildiug,  the  property  of  Nathan 
S.  Hoard,  is  not  supported  by  proof  that  the 
building  was  hired  of  Nathan  Hoard,  and 
that  the  defendant  threatened  to  break  the 
windows  of  Mr.  Hoard.  Com.  v.  McAvoy, 
16  Gray,  335. 

41.  Property  injured.  An  indictment 
which  charges  the  malicious  killing  of  a 
horse,  will  not  be  sustained  by  proof  of  the 
killing  of  a  gelding.  Gholston  v.  State,  33 
Texas,  343.  As  to  the  same  rule,  in  case  of 
larceny,  see  Gibbs  v.  State,  34  lb.  134. 

42.  Nature  of  injury.  An  indictment  for 
an  attempt  to  poison  a  horse,  charged  that 
the  defendants  "filled  and  saturated"  po- 
tatoes  with   croton   oil,  intending  to  give 


them  to  the  horse  to  eat.  The  evidence 
showed  that  the  potatoes  were  not  saturated, 
but  that  they  were  filled  with  bran  which 
was.  Held  that  the  variance  was  not  ma- 
terial.   Com.  V.  McLaughlin,  105  Mass.  460. 

43.  In  Texas,  it  was  held  that  an  indict- 
ment for  altering  the  brand  of  a  cow,  was 
supported  by  proof  that  the  defendant  put 
an  additional  brand  on  the  animal  to  the  one 
already  on  her,  although  the  second  brand 
did  not  interfere  with  or  change  the  first. 
Linnay  v.  State,  6  Texas,  1. 

44.  On  the  trial  of  an  indictment  for  ma- 
licious mischief  containing  but  one  count, 
for  an  injury  to  "  a  mare  and  an  ox,"  com- 
mitted at  diflerent  times,  it  is  error  to  refuse 
to  charge  that  "  if  the  State  had  failed  to 
prove  that  the  mare  and  ox  were  injured  at 
the  same  time,  or  so  near  each  other  as  t© 
constitute  the  same  offense,  the  defendant  is 
not  guilty  as  charged."  The  indictment  in 
such  case  should  have  charged  the  ofiiensesin 
two  counts,  or  in  the  alternative  in  the  same 
count.     Burgess  v.  State,  44  Ala.  190. 

45.  In  Massachusetts,  an  indictment  un- 
der the  statute  (R.  S.  ch.  136,  §  39),  for  ma- 
licious mischief,  charging  that  the  defend- 
ant willfully,  maliciously  and  secretly  de- 
stroyed lobster  cans  and  cables  to  which  the 
cans  were  attached,  was  held  sustained  by 
proof  that  the  cables  were  cut  in  the  center, 
and  that  the  cans  had  floated  a  short  distance 
away,  and  were  somewhat  injured.  Com.  v. 
Soule,  3  Mete.  31. 

46.  On  the  trial  of  an  indictment  for  ma- 
liciously obstructing  a  railroad  track  by 
placing  pieces  of  timber  on  it,  it  is  not  nec- 
essary that  the  proof  should  correspond 
•with  the  allegation  as  to  the  number  of  the 
l^ieces  of  timber.  It  is  sufficient  if  the 
evidence  shows  that  one  piece  of  timber  was 
placed  on  the  track  in  such  a  manner  as  to 
obstruct  the  passage  of  the  cars.  Allison  v. 
State,  43  lud.  354 ;  s.  c.  3  Green's  Crim.  Reps. 
683. 

47.  Proof  of  another  offense.  On  the 
trial  of  an  indictment  for  placing  obstruc- 
tions on  a  railroad  track,  evidence  that  the 
prisoner  placed  obstructions  on  the  track 
other  than  those  for  which  he  was  indicted, 
is  admissible  when  the  acts  are  so  connected 


MALICIOUS  MISCHIEF. 


433 


Evidence. 


as  to  form  one  entire  transaction.     State  v. 
Wentworth,  37  New  Ilanip.  196. 

48.  Proof  of  malice.  On  tbe  trial  of  an 
indictment  for  maliciously  injuring  a  fence, 
the  following  instruction  was  held  errone- 
ous: "Malice  maybe  inferred  or  implied 
from  the  act,  or  manner  of  committing  the 
act,  or  by  its  repetition,  or  by  the  relation 
existing  between  the  defendant  and  the 
family  in  which  he  lived,  and  the  owner  of 
the  fence,'' it  not  being  competent  for  the 
jury  to  consider  as  one  of  the  circumstances 
tending  to  prove  a  malicious  intent  on  the 
part  of  the  defendant,  the  relation  existing 
between  the  family  in  which  he  lived,  and 
the  owner  of  the  fence.  State  v.  McDer- 
mott,  36  Iowa,  107;  s.  c.  3  Green's  Crim. 
Reps.  634. 

49.  In  Tennessee,  where  on  the  trial  of  an 
indictment  for  malicious  mischief,  it  was 
proved  that  the  act  was  committed  without 
any  unlawftil,  willful  and  malicious  intent  to 
injure,  but  under  the  belief  that  the  defend- 
ant had  a  right  to  commit  it,  it  was  held 
that  the  defendant  must  be  acquitted.  Go- 
forth  v.  State,  8  Humph.  37. 

50.  In  Maine,  an  indictment  under  the 
statute  (R.  S.  ch.  162,  §  2),  which  provides 
that  if  any  person  shall  maliciously  or  wan- 
tonly break  down,  injure,  remove,  or  destroy 
any  dam,  &c.,  he  shall  be  punished,  &c., 
charged  that  the  defendants  maliciously  and 
wantonly  broke  down,  &c.  Held,  that  proof 
that  the  act  was  done  either  maliciously  or 
wantonly  was  sutBcient.  State  v.  Burgess, 
40  Maine,  592. 

51.  On  the  trial  of  an  iodictment  for  ma- 
licious mischief,  evidence  of  malice  toward 
Ihe  son  of  the  owner  of  the  property  is  not 
admissible.  Northcot  v.  State,  42  Ala. 
330. 

52.  In  Tennessee,  on  a  trial  under  the 
statute  (Code  §  4657),  for  malicious  mis- 
chief in  killing  a  horse  in  the  possession  of 
a  bailee,  it  is  sufficient  to  prove  malice  to- 
ward the  bailee,  notwithstanding  the  indict- 
ment describes  the  horse  as  the  property  of 
the  general  owner.  Stone  v.  State,  3  Heisk. 
457;  s.  c.  1  Green's  Crim.  Reps.  520. 

53.  If  the  act  of  altering  or  defacing  the 
marks  of  cattle  is  proved  to  have  been  will- 


fully done,  it  follows  that  the  intent  was  to 
defraud  the  owner,  unless  there  be  proof  to 
the  contrary.     State  v,  Davis,  2  Ired,  153. 

54.  Whether  a  person  was  guilty  of  ma- 
licious shooting  or  not,  with  intent  to  kill, 
depends  upon  the  question  whether  if  he 
had  killed  the  person  at  whom  he  shot, 
instead  of  only  wounding  him,  the  offense 
would  have  been  murder.  Read  v.  Com.  22 
Gratt.  924 ;  s.  c.  1  Green's  Crim.  Reps.  267. 

55.  Presumption.  On  the  trial  of  an  in- 
dictment for  maliciously  shooting  and  kill- 
ing a  mare,  a  witness  was  permitted  to 
testify  as  to  the  kind  of  shot  found  in  an 
animal  which  was  at  the  same  time  wounded, 
with  a  view  of  showing  that  the  shot 
agreed  in  size  with  those  found  at  the  de- 
fendant's house  on  the  day  the  shooting 
took  place,  as  a  circumstance  to  connect  the 
defendant  with  the  offense  charged.  State 
V.  Wholeham,  22  Iowa,  297. 

56.  Opinion  of  witness.  On  a  trial  for 
willfully  and  maliciously  shooting  a  mule,  it 
was  held  that  a  witness  who  was  acquainted 
with  the  mule,  both  before  and  after  the 
occurrence,  but  who  had  no  skill  in  veteri- 
nary or  medical  science,  might  state  his  opin- 
ion as  to  the  extent  of  the  damage  caused 
by  the  wound.  Johnson  v.  State,  37  Ala. 
457. 

57.  Declarations  of  defendant.  On  tbe 
trial  of  an  indictment  for  maliciously  killing 
a  hog,  the  declarations  of  the  defendant  im- 
mediately after  the  occurrence  tending  to 
show  that  it  was  accidental,  are  admissible 
in  evidence  in  his  behalf.  State  v.  Graham, 
46  Mo.  490. 

58.  On  a  trial  for  malicious  mischief,  the 
only  evidence  was,  that  the  witness  asked 
the  defendant  "what  made  him  shoot  his 
mare,"  to  which  the  defendant  replied  that 
"he  did  not  shoot  her  with  shot."  Held 
not  sufficient  to  sustain  a  conviction.  Dover 
V.  State,  32  Texas,  84. 

59.  Justification.  On  the  trial  of  an  in- 
dictment for  malicious  mischief  in  shooting 
a  mule,  it  is  competent  for  the  defendant  to 
show  that  the  mule  was  of  a  thievish  and 
unmanageable  disposition,  and  that  he  shot 
it  to  protect  his  crop,  and  not  from  ill  will 


434        MALICIOUS   MISCHIEF.— MALICIOUS  TRESPASS. 


Evidence. 


Verdict. 


What  is  or  is  not  Deemed. 


to   the   owner,   or    cruelty    to   the   animal. 
Wright  V.  State,  30  Ga.  325. 

60.  It  is  not  a  defense  to  an  indictment 
for  altering  and  defacing  marks  on  cattle, 
that  at  the  time  the  act  was  committed,  the 
cattle  had  strayed  from  their  owner.  State 
V.  Davis,  2  Ired.  153. 

61.  On  the  trial  of  an  indictment  for  ma- 
licious mischief  in  tearing  down  and  remov- 
ing a  fence  standing  on  the  land  of  another, 
it  is  no  justification,  that  the  defendant 
built  the  house,  or  that  his  wife  claimed  an 
interest  in  the  land.  Rilter  v.  State,  33 
Texas,  608. 

4.  Verdict. 

62.  Must  find  malice.  Since  to  consti- 
tute malicious  mischief  at  common  law, 
there  must  have  been  malice  toward  the 
owner  of  the  property  injured,  if  this  be 
not  found  by  the  verdict,  the  defendant 
must  be  acquitted.  State  v.  Newby,  64  N. 
C.  23. 

See    Malicious  trespass. 


illaliciouo  Prosecution. 

When  indictable.  It  is  an  indictable  of- 
fense to  buy  three  promissory  notes  against 
the  same  person,  get  them  into  as  many 
judgments,  and  issue  separate  executions  on 
them.  But  such  acts  do  not  make  the  per- 
petrator of  them,  a  common  barretor.  Com. 
V.  McCulloch,  15  Mass.  227. 


iilalicious  trespass. 

1.  "What  is   or  is  not  deemed. 

2.  Complaint. 

3.  Indictment. 

4.  Evidence. 


1.  What  is  or  is  not  deemed. 

1.  Destruction  of  property.  Tearing 
down  the  roof  and  chimney  of  a  dwelling- 
house  in  the  peaceable  possession  of  another, 
is  indictable  at  common  law.  State  v.  Wil- 
son, 3  Mo.  125. 

2.  On  a  prosecution  for  malicious  trespass 


in  injuring  a  toll  gate  on  a  turnpike,  it  was 
proved  that  the  defendant  was  traveling 
with  a  two  horse  team,  and  that  on  refusing 
to  pay  toll,  and  the  gate  being  closed  against 
him,  he  sawed  the  gate  down  and  went 
through.  Held  that  the  conviction  was  proper. 
Bock  V.  State,  50  Ind.  281. 

3.  Severing  and  taking  away  a  growing 
crop  by  one  act,  is  only  a  trespass.  By  the 
statute  of  New  York,  such  an  act,  if  the 
property  so  severed  and  taken  was  of  more 
than  $25  dollars  value,  would  be  grand  lar- 
ceny; but  if  of  the  value  of  $25  or  less,  the 
act  is  not  a  criminal  offense  unless  charged 
to  have  been  done  maliciously ;  and  if  so 
charged,  it  is  a  misdemeanor  as  a  malicious 
trespass,  but  not  stealing.  Comfort  v.  Ful- 
ton, 39  Barb.  56. 

4.  Killing  dog.  Whether  the  right  of 
property  in  dogs  is  such  in  South  Carolina 
that  an  indictment  for  malicious  trespass 
will  lie  for  killing  them — query.  State  v. 
Trapp,  14  Rich.  203. 

5.  Acts  not  regarded  as  criminal.  A 
man  is  not  liable  to  a  criminal  prosecution 
for  destroying  timber  upon  lands  which  he 
holds  possession  of  by  virtue  of  a  contract 
obtained  by  fraud.  Howe  v.  State,  10  Ind. 
492. 

6.  A  person  without  color  of  title,  cannot 
defeat  a  criminal  prosecution  for  malicious 
trespass  upon  lands  by  setting  up  a  title 
thereto  in  himself.  But  where  he  has  a 
paper  title  apparently  valid  on  its  face,  and 
claims  in  good  faith  to  be  the  owner,  and  is 
in  possession,  either  by  himself  or  others 
occupying  by  his  direction,  he  cannot  be 
prosecuted  criminally  for  a  trespass  commit- 
ted thereon  by  him  to  the  damage  of  a  third 
person,  although  such  third  person,  in  the 
end,  may  prove  to  have  the  better  title. 
Windsor  v.  State,  13  Ind.  375. 

7.  Where  a  person  has  used  a  private  way 
for  a  long  period,  supposing  that  he  had  a 
right  so  to  use  it,  he  will  be  guilty  of  ma- 
licious trespass  in  tearing  down  a  fence 
placed  across  the  way.  Palmer  v.  State,  45 
Ind.  388;  s.  c.  2  Green's  Crim.  Reps.  718. 

8.  The  stopping  of  a  train  of  cars  by  a 
passenger  by  pulling  the  signal-rope  at- 
tached to  a  bell  upon  the  engine  is  not  a 


MALICIOUS    TRESPASS.— MANDAMUS.— MAYHEM.      435 


Complaint. 


Indictment. 


Evidence. 


Ground  for. 


criminal  obstruction  of  the  train  within  the 
statute  of  Massachusetts  (Genl.  Stats,  ch. 
63,  §  107).     Com.  v.  Killian,  109  Mass.  345. 

9.  An  indictment  cannot  be  maintained 
against  a  person  for  being  in  the  habit  of 
going  frequently  to  the  house  of  another, 
and  so  maltreating  his  family  as  to  render 
their  lives  uncomfortable.  Com.  v.Edwards, 
1  Ashm.  46. 

2.  Complaint. 

10.  What  it  ought  to  contain.  An  affi- 
davit and  complaint  for  malicious  trespass 
must  allege  the  ownership  of  the  property 
injured,  and  the  nature  of  the  injury.  State 
V.  Jackson,  7  Ind.  270 ;  see  Boswell  v.  State, 
8  lb.  499. 

3.  Indictment. 

11.  Averment  of  injury.  An  indictment 
for  malicious  trespass,  alleging  that  the  de- 
fendant maliciously  and  mi«chievously  in- 
jured and  caused  to  be  injured  a  certain 
house,  the  property  of  one  M.,  of  the  value 
of  fifty  dollars,  contrary  to  the  form  of  the 
statute,  &c.,  was  held  insufficient  in  not 
showing  what  injury  was  done  to  the  house. 
State  V.  Aydelott,  7  Blackf.  157. 

12.  Where,  under  an  information  for  cut- 
ting trees  upon  another's  land,  the  value  of 
the  trees  is  the  basis  of  the  penalty,  the 
damage  to  the  owner  need  not  be  alleged. 
State  V.  Shadley,  16  Ind.  230. 

13.  Description  of  property.  An  in- 
dictment for  maliciously  injuring  a  dwelling- 
house  occupied  by  a  tenant  at  will  of  the 
owner,  may  describe  the  house  as  the  ten- 
ant's.    State  V.  Whittier,  21  Maine,  341. 

14.  In  Indiana,  an  indictment  for  ma- 
licious trespass  was  held  sufficient  under  the 
statute  (R.  S.  ch.  53,  §  71),  which  alleged 
that  the  defendant  did  unlawfully,  mali- 
ciously, and  mischievously  injure  and  de- 
stroy several  windows  belonging  to  a  certain 
county  seminary,  the  property  of  the  county 
of  S.    Read  v.State;  on  appeal,  lCarter,511. 

4.  Evidence,      f^ 

15.  Ownership  of  property.  An  indict- 
ment for  malicious  trespass  in  killing  a  dog, 
charged  that  the  animal  was  owned  by  A. 


It  was  proved  that  the  dog  was  the  property 
of  B.,  a  son  of  A.,  who  was  eighteen  years 
of  age,  and  lived  with  his  father,  it  having 
been  presented  to  B.  by  his  sister.  Held^ 
that  the  variance  was  fatal.  State  v.  Trapp, 
14  Rich.  203. 

16.  Malicious  intent.  On  the  trial  of  an 
indictment  for  a  malicious  trespass,  it  is  er- 
roneous for  the  court  to  charge  that  it  is 
competent  for  the  jury  to  consider  as  a  cir- 
cumstance tending  to  prove  a  malicious  in- 
tent on  the  part  of  the  defendant  the  re- 
lation existing  between  the  family  in  which 
he  lived  and  the  owner  of  the  property. 
State  V.  McDermott,  36  Iowa,  107. 

See  Malicious  mischief;  Trespass. 


ilTanbamus, 


Ground  for.  On  an  application  for  a  man- 
damus against  the  Hartford  and  New  Ha- 
ven Railroad  Company,  it  appeared  that  the 
company  was  incorporated  with  power  to 
construct  and  operate  a  railroad  from  Hart- 
ford to  the  navigable  waters  of  New  Haven 
harbor,  and  that  a  steamboat  company  was 
afterward  chartered  to  run  in  connection 
with  it,  and  that  the  line  thus  established 
was  maintained  with  great  public  benefit  for 
several  years,  and  until  a  side  track  was 
constructed  by  the  railroad  company  a  mile 
and  a  half  from  its  terminus  on  the  harbor, 
running  to  the  station  of  the  New  York  and 
New  Haven  Railroad  Company,  when  the 
Hartford  and  New  Haven  company  discon- 
tinued the  conveyance  of  passengers  to  the 
original  terminus,  to  the  great  detriment  of 
public  travel.  Held  that  the  application 
ought  to  be  granted.  State  v.  Hartford  and" 
New  Haven  R.  R.  Co.  29  Conn.  533. 


illauslaugljtcr 

See  Homicide. 


iHa|)l)cm. 

1.  What  constitutes. 

2.  Indictment. 

3.  Evidence. 

4.  Verdict. 


436 


MAYHEM. 


What  Constitutes. 


Indictment. 


Evidence. 


1.  What  constitutes. 

1.  At  common  law.  To  constitute  may- 
hem at  common  law,  the  injury  must  have 
been  permanent.  A  temporary  disabling  of 
a  linger,  an  arm,  or  an  eye  would  not  be 
sufBcient.  It  is  the  same  in  Alabama,  under 
the  statute  of  1807.  State  v.  Briley,  8 
Porter,  472. 

2.  The  breaking  into  a  man's  dwelling- 
house  in  the  night  time,  and  cutting  ofi'  his 
ear,  is  indictable  at  common  law.  Com.  v. 
Newell,  7  Mass.  245. 

3.  In  New  York.  To  constitute  the  of- 
fense of  mayhem  under  the  statute  of  New 
York,  the  disabling  must  be  done  with  pre- 
meditation, and  not  be  the  result  of  an  un- 
expected instantaneous  encounter,  or  of  the 
excitement  produced  by  the  fear  of  bodily 
harm.  Burke  v.  People,  11  N.  Y.  Supm. 
N.  S.  481 :  Godfrey  v.  People,  12  lb.  369. 

4.  In  North  Carolina.  To  constitute 
mayhem  under  the  statute  of  North  Caro- 
lina, by  biting  off  an  ear,  it  is  sutHcient  if 
only  a  part  is  taken  off,  provided  it  changes 
and  impairs  the  natural  personal  appearance, 
and  to  ordinary  observation  renders  the 
person  less  comely.  State  v.  Gerkin,  1  Ired. 
121. 

5.  In  Alabama.  To  support  an  indict- 
ment for  putting  out  the  eye  of  a  person 
under  the  statute  of  Alabama,  it  is  sufficient 
if  the  defendant  maliciously  and  on  purpose 
does  the  act,  in  jDursuance  of  a  design  formed 
during  the  conflict.  State  v.  Simmons,  3 
Ala.  497. 

6.  In  Alabama,  to  constitute  mayhem,  the 
member  need  not  be  wholly  mutilated ;  but 
there  must  be  so  much  of  it  mutilated  as  to 
disfigure  the  person  on  ordinary  inspection. 
State  V.  Abram,  10  Ala.  928. 

7.  In  Arkansas.  Under  the  statute  of 
Arkansas,  maiming  consists  in  unlawfully 
disabling  a  human  being,  by  depriving  him 
of  the  use  of  a  limb  or  member,  or  rendering 
him  lame,  or  defective  in  bodily  vigor;  and 
it  is  immaterial  by  what  means,  or  with  what 
instrument  the  injury  is  effected,  provided 
the  crime  is  consummated  by  depriving  the 
party  of  the  use  of  a  limb  or  member  of  his 
body.     Baker  v.  State,  4  Ark.  56. 


3.  Indictment. 

8.  Necessary  averments.  The  indict- 
ment at  common  law  and  under  the  statute 
of  Tennessee,  in  addition  to  stating  the 
injury,  must  charge  that  the  party  was 
thereby  maimed.  Chick  v.  State,  7  Humph. 
161.  In  Alabama,  an  indictment  for  may- 
hem need  not  charge  that  the  act  was  done 
feloniously.  State  v.  Absence,  4  Porter,. 
397.  In  North  Carolina,  an  indictment 
under  the  statute  (act  of  1791,  R.  S.  339)  for 
biting  off  an  ear,  must  charge  that  the 
offense  was  committed  on  purpose  as  well 
as  unlawfully.  State  v.  Ormond,  1  Dev.  & 
Batt.  119.  But  an  indictment  under  the 
statute  of  North  Carolina  (R.  S.  ch.  84,  §48), 
for  maiming  by  biting  off  an  ear,  need  not 
state  whether  it  was  the  right  or  the  left 
ear.  State  v.  Green,  7  Ired.  89.  An  intent 
to  disfigure  will  be  inferred.  State  v.  Ger- 
kin, 1  lb.  121. 

9.  Description  of  injury.  In  Virginia, 
an  indictment  under  the  statute  against 
mayhem,  charged  a  shooting  with  intent  to 
maim,  disfigure,  disable  and  kill ;  while  the 
statute  used  the  disjunctive  or,  instead  of 
the  conjunctive  as  in  the  indictment.  Held 
that  the  indictment  was  good.  Angel  v. 
Com.  2  Va.  Cas.  231. 

10.  An  indictment  for  mayhem  which 
charges  that  the  defendant  slit,  cut  off  and 
bit  off  the  ear  of  a  person,  is  not  bad  for 
duplicity.     State  v.  Ailey,  3  Heisk.  8. 

11.  An  allegation  that  the  nose  of  the 
prosecutor  was  bitten  off,  is  within  a  statute, 
so  as  to  imply  a  cutting  off  of  the  nose. 
State  v.  Mairs,  Coxe,  453. 

12.  In  Oregon,  it  was  held  proper  to 
designate  as  mayhem  the  maliciously  and 
feloniously  tearing  off  of  an  ear.  State  v. 
Vowels,  4  Oregon,  324. 

8.  Evidence. 

13.  Guilty  intent.  In  North  Carolina,  on 
the  trial  of  an  indictment  under  the  statute 
(R.  S.  ch.  34,  §  48),  malice  aforethought,  or 
a  previous  intention  to  commit  the  mayhem, 
need  not  be  proved.  State  v.  Gerkin,  1 
Ired.  121. 

14.  Restoration  of  member.  Where  on 
a  trial  for  maiming,  it  is  proved  that  the 


MAYHEM.— MISDEMEANOR. 


437 


Evidence. 


Verdict. 


What  Constitutes. 


person  injured  lost  a  member  of  his  body  by 
the  willful  act  of  the  defendant,  a  conviction 
will  be  sustained,  although  it  also  appear 
that  the  member  was  afterward  put  back 
and  grew  in  its  proper  place.  Slatterly  v. 
State,  41  Texas,  619. 

15.  Justification.  In  order  to  make  a 
previous  assault  on  the  defendant,  who  is 
charged  with  mayhem,  a  good  justification, 
it  must  be  proved  that  the  striking  by  the 
defendant  was  in  his  own  defense,  and  in 
proportion  to  the  attack  made  on  him. 
Hayden  v.  State,  4  Blackf.  546. 

4.   Verdict. 

16.  May  be  for  assault.  Under  an  in- 
dictment for  an  assault  with  intent  to  commit 
mayhem,  the  defendant  may  be  convicted  of 
simple  assault.  McBride  v.  State,  2  Eng. 
374. 

17.  Under  an  indictment  for  aiding  and 
abetting  a  mayhem,  if  it  does  not  appear 
from  the  evidence  that  the  aider  or  abettor 
knew  that  the  principal  intended  to  commit 
a  mayhem  at  the  time  aid  was  given,  the 
abettor  can  only  be  convicted  of  assaulting 
and  beating.  State  v.  Absence,  4  Porter, 
397. 

See  Assault  and  battery. 


ittbbcmcanor, 

1.  What  constitutes. 
3.  Indictment. 

3.  Trial. 

4.  Evidence. 

5.  Verdict. 

6.  Judgment. 

1.  What  constitutes. 

1.  In  general.  To  constitute  a  misde- 
meanor, there  must  have  been  a  violation  of 
public  law,  through  the  joint  operation  of 
act  or  intention,  or  criminal  negligence. 
Yoes  V.  State,  4  Eng.  43. 

2.  At  common  law.  The  following  have 
been  held  misdemeanors  at  common  law : 
Riding,  or  going  armed  with  unusual  and 
dangerous  weapons,  to  the  terror  of  the 
>people.     State  v.  Huntley,  3  Ired.  418;    the 


proposal  to  receive  a  bribe.  Walsh  v.  Peo- 
ple, 65  111.  58 ;  forging  a  receipt  for  a  note 
of  hand,  which  would  be  in  full  when  paid. 
People  V.  Hoag,  3  Parker,  36 ;  the  disturb- 
ance of  a  religious  meeting.  State  v.  Jasper, 
4  Dev.  333 ;  throwing  the  dead  body  of  a 
person  into  a  river  without  the  rites  of 
burial.  Kanavan's  Case,  1  Maine,  326 ;  dis- 
interring the  dead.  Com.  v.  Cooley,  10 
Pick.  37 ;  giving  a  person  unwholesome 
food.     State  v.  Smith,  3  Hawks,  378. 

3.  Other  acts  deemed.  It  is  a  misde- 
meanor to  keep  open  a  tippling  house  on  the 
Sabbath.  Hall  v.  State,  3  Kelly,  18.  But 
see  Van  Zart  v.  People,  3  Parker,  168.  And 
the  keeping  of  a  bawdy-house  is  a  misde- 
meanor. Ross  V.  Com.  3  B.  Mon.  417.  So 
is  malicious  mischief  done  to  any  kind  of 
property.  Loomis  v.  Edgerton,  19  Wend. 
419;  Com.  v.  Eckert,3  Browne,  349.  Break- 
ing into  the  house  of  another,  and  making 
a  great  noise,  whereby  a  woman  in  the 
house  miscarries,  is  a  misdemeanor.  Com. 
V.  Taylor,  3  Binn.  377.  And  encouraging 
and  aiding  another  to  commit  a  misde- 
meanor, is  itself  a  misdemeanor.  Com.  v. 
Harrington,  3  Pick.  36;  Pennsylvania  v. 
McGill,  Addis.  31. 

4.  Where  a  person,  after  request  not  to  do 
it,  discharged  a  gun  unnecessarily,  within 
the  hearing  of  a  person  who  was  ill,  and 
likely  to  be  affected  thereby,  and  the  conse- 
quence was,  that  the  person  was  seriously 
disturbed,  it  was  held  a  misdemeanor. 
Com.  V.  Wing,  9  Pick.  1. 

5.  It  is  a  misdemeanor,  when  the  act  pro- 
posed to  be  committed  by  the  counsel,  ad- 
vice, or  enticement  of  another,  is  of  a 
high  and  aggravated  character,  tending  to 
breaches  of  the  peace,  and  other  great  dis- 
order and  violence.  Com.  v.  Willard,  33 
Pick.  476. 

6.  It  is  a  misdemeanor  to  persuade  an- 
other to  steal  a  conveyance  of  land.  Penn- 
sylvania V.  McGill,  Addis.  31 ;  and  the 
destruction  of  a  tree  standing  on  public 
ground  is  indictable  as  a  misdemeanor. 
Com.  V.  Eckert,  2  Browne,  249. 

7.  In  Massachusetts,  the  sale  of  spirituous 
liquors  without  being  a  physician  or  apoth- 
ecary licensed  for  that  purpose,  is  a  misde- 


438 


MISDEMEANOR. 


What  Constitutes. 


Indictment. 


meaner  under  the  statute  of  1838.  But  the 
purchase  from  such  person,  although  imply- 
ing an  inducement  held  out  to  commit  a 
misdemeanor,  is  not  in  itself  a  misdemeanor. 
Com.  V.  Willard,  22  Pick.  476. 

8.  In  New  York,  a  person  found  guilty  of 
petit  larceny  as  a  first  ofiense  is  not  convicted 
of  a  felony,  but  a  misdemeanor.  People  v. 
Rawson,  61  Barb.  619. 

9.  Attempt  to  commit.  The  attempt  to 
commit  a  misdemeanor,  shown  by  an  overt 
act,  is  a  misdemeanor,  whether  the  offense  is 
created  by  statute,  or  by  common  law.  Com. 
V.Kingsbury,  5  Mass.  106;  Smith  v.  Com. 
54  Penn.  St.  209. 

10.  What  is  not.  The  breaking  and  en- 
tering the  close  of  another,  unless  attended 
by  circumstances  constituting  a  breach  of 
the  peace  (such  as  entering  the  dwelling- 
house  with  offensive  weapons  in  a  manner 
to  cause  terror  and  alarm  to  the  family  and 
inmates  of  the  house),  is  only  a  civil  injury, 
to  be  redressed  by  an  action  of  trespass,  and 
cannot  be  treated  as  a  misdemeanor.  Hen- 
derson v.  Com.  8  Graft.  708. 

11.  Compounding.  The  offense  of  com- 
pounding crime,  extends  as  well  to  misde- 
meanors as  to  felonies.  Jones  v.  Rice,  18 
Pick.  440. 

12.  Degrees  of  guilt.  In  misdemeanors 
there  are  no  accessories.  All  who  procure, 
counsel,  aid,  or  abet  the  commission  of  the 
crime,  are  principals.  Com.  v.  Atee,  8  Dana, 
28;  Williams  V.  State,  12  Smed.  &  Marsh. 
58:  State  v.  Westfield,  1  Bail.  132;  State  v. 
Cheek,  13  Ired.  114  ;  Com.  v.  Macomber,  3 
Mass.  254;  Com.  v.  Barlow,  4  lb.  439; 
Curlin  v.  State,  4  Yerg.  143;  U.  S.  v. 
Gooding,  12  Wheat.  460;  Lowenstein  v. 
People,  54  Barb.  299.  Those  personally 
present  at  the  commission  of  the  offense,  are 
guilty  in  the  first  degree.  Such  as  are  not 
personally  present,  but  who  are  so  connected 
with  the  offense  charged  that  in  the  eye  of 
the  law  they  are  constructively  present,  are 
guilty  as  principals  in  the  second  degree. 
But  unless  there  is  some  evidence  of  guilty 
complicity  before  the  commission  of  the  of- 
fense, there  cannot  be  a  conviction  upon 
proof  of  subsequent  acts.  U.  S.  v.  Harries, 
2  Bond,  311. 


2.  Indictmemt. 

13.  When  it  will  lie.  Where  a  statute 
contains  a  prohibitory  clause,  and  a  specific 
remedy  in  a  subsequent  clause,  without  any- 
mention  of  indictment,  an  indictment  will 
lie  for  the  misdemeanor  committed  in  viola- 
tion of  the  prohibition.  State  v.  Thompson^ 
2  Strobh.  12. 

14.  Need  not  be  precise.  An  indictment 
for  a  misdemeanor,  does  not  require  that 
technical  nicety  as  to  form,  which  has  been 
adopted  and  sanctioned  by  long  practice  in 
cases  of  felony.  U.  S.  v.  Lancaster,  2  Mc- 
Lean, 431 ;  Bilbro  v.  State,  7  Humph.  534; 
Taylor  v.  State,  6  lb.  285 ;  Martin  v.  State, 
lb.  204;  Sanderlin  V.  State,  3  lb.  315;  U.  S. 
V.  Sclnmer,  5  Biss.  195. 

15.  Name  of  county.  Where  the  name 
of  the  county  is  stated  in  the  body  of  an 
indictment  for  a  misdemeanor,  it  will  be 
held  sufficient,  although  not  named  in  the 
margin.     Tefft's  Case,  8  Leigh,  721. 

16.  Description  of  offense.  As  a  general' 
rule,  it  is  sufficient  in  indictments  for  mis- 
demeanor, to  describe  the  offense  in  the 
words  of  the  statute.  State  v.  Blaisdell,  33 
New  Hamp.  388;  State  v.  Rust,  lb.  438. 

17.  Where  an  indictment  charged  that  the 
defendant  sold  spirituous  liquors  to  a  slave, 
the  property  of  A.  B.,  without  a  permit  from 
his  master,  it  was  held  that  the  name  of  the 
slave  and  the  name  of  his  master  need  not 
have  been  alleged.  Martin  v.  State,  6 
Humi^h.  204. 

18.  An  indictment  for  a  misdemeanor, 
charging  the  defendant  with  being  a  com- 
mon Sabbath  breaker  and  profaner  of  the 
Lord's  day,  was  held  to  be  insufficient,  in  not 
stating  how,  or  in  what  manner  he  was  a  Sab- 
bath breaker.  State  v.Bro-wn,  3  Murphy,  221. 

19.  Joinder  of  offenses.  In  indictments 
for  misdemeanor,  there  may  be  counts  for 
different  offenses,  if  the  judgments  on  the 
different  offenses  are  of  the  same  nature^ 
Stone  V.  State,  1  Spencer,  404. 

20.  A  count  for  a  misdemeanor  at  com- 
mon law,  and  a  count  for  a  misdemeanor 
contra  formam  statuti^  may  be  united  in  the 
same  indictment.  State  v.  Thompson,  2 
Strobh.  12. 

21.  Where  several  misdemeanors  are  joined 


MISDEMEAiXOR. 


439 


Indictment. 


Trial. 


Evidence. 


in  the  same  indictment,  a  conviction  for  all 
may  take  place  at  the  same  time,  and  the 
prosecution  (cannot  be  compelled  to  elect  for 
which  it  will  proceed.  People  v.  Costello, 
1  Denio,  83. 

22.  An  indictment  against  three  persons 
for  misdemeanor  charged  distinct  offenses 
in  different  counts,  and  on  the  trial,  the 
evidence  tended  to  show  that  two  offenses 
had  been  committed.  There  being  no  evi- 
dence against  one  of  the  defendants  in  respect 
to  one  of  the  offenses  charged,  though  there 
was  evidence  tending  to  show  them  all 
guilty  of  the  other  offense,  the  defendants 
applied  to  court  to  compel  the  prosecution  to 
elect  for  which  offense  it  would  proceed. 
Held  that  it  should  have  been  required  to 
make  such  election.  People  v.  Costello, 
supra.  As  such  application  was  addressed 
to  the  discretion  of  the  court  before  which 
the  trial  was  had,  whether  a  decision  de- 
nying it  could  be  corrected  by  the  appellate 
court  upon  a  bill  of  exceptions — query.    lb. 

23.  Defective  as  to  degree  of  offense 
charged.  An  indictment  defective  as  to  a 
felony  charged,  may  be  good  for  a  misde- 
meanor, and  a  conviction  of  the  latter  will 
bar  a  subsequent  indictment  for  the  former. 
The  record  would  be  conclusive  that  the 
acts  were  committed  with  the  intent  charged, 
and  the  prosecution  could  not  allege  a  differ- 
ent intent  so  as  to  constitute  a  different 
offense.  Lohman  v.  People,  1  Comst.  379 ; 
affi'gs.  c.  2  Barb.  216. 

24.  EflFect  of  overruling  demurrer  to. 
If  the  defendant  demur  to  an  indictment 
for  a  misdemeanor,  and  the  demurrer  is 
overruled,  the  decision  operates  as  a  con- 
viction, and  the  judgment  will  be  final. 
Wickwire  v.  State,  19  Conn.  477. 

3.  Trial. 

25.  Absence  of  defendant.  In  Kentucky, 
where  a  person  has  been  recognized  to  ap- 
pear and  answer  for  a  misdemeanor,  he  may 
be  tried,  although  he  do  not  appear.  Canada 
V.  Com.  9  Dana,  304.  ^ 

4.  Evidence.       ^ 

26.  Weight  and  sufficiency  of.  Where 
on  the  trial  of  an  indictment  for  a  misde- 
meanor, the  court  charged  the  JU17  that  the 


evidence  must  show  the  guilt  of  the  defend- 
ant to  their  reasonable  satisfaction,  that  their 
best  judgment  must  be  that  the  defendant 
was  guilty,  so  that  the  mind  might  rest 
easy  in  the  conclusion  of  guilt,  it  was  held 
not  error  also  to  charge  them  that  the  prose- 
cution need  not  show  that  the  defendant  was 
guilty  beyond  all  reasonable  doubt.  Purkey 
V.  State,  3  Heisk.  26. 

27.  In  Tennessee,  on  the  trial  of  an  in- 
dictment for  misdemeanor  under  the  statute 
(of  1837-8),  prohibiting  the  wearing,  con- 
cealed about  the  person,  any  bowie-knife, 
Arkansas  tooth-pick,  or  other  similar  weap- 
on, it  was  proved  that  the  knife  carried  by 
the  defendant  was  a  Mexican  pirate  knife. 
Held  sufficient  to  support  a  conviction. 
Haynes  v.  State,  5  Humph.  120. 

28.  On  the  trial  of  an  indictment  for  a 
misdemeanor  in  secreting  the  book  of  rec- 
ords of  the  town  of  A.,  it  was  held  no  de- 
fense that  one  of  the  princijial  inhabitants 
of  the  town  knew  that  the  book  of  records 
was  left  with  the  defendant,  and  that  per- 
sons had  seen  it  there ;  or  that  the  defendant 
did  no  act  to  conceal  the  book,  other  than  to 
deny  that  it  was  in  his  possession,  and  that 
he  had  any  knowledge  of  it;  or  that  the 
book  being  left  in  the  defendant's  custody, 
was  kept  openiy  with  his  own  books  and 
papers,  and  he  did  no  more  than  refuse  to 
surrender  it  when  demanded,  and  refused  to 
tell  where  it  could  be  found.  State  v.  Wil- 
liams, 30  Maine,  484. 

29.  On  the  trial  of  a  police  justice  for  a 
misdemeanor,  in  unlawfully  letting  a  prisoner 
to  bail  without  authority,  and  without  no- 
tice to  the  district  attorney,  it  is  not  error  in 
the  court  to  charge  the  jury  that  in  order  to 
sustain  the  indictment,  there  need  not  be 
proof  of  corruption.  People  v.  Bogart,  3 
Parker,  143;  approved  5  N.  Y.  Supm.  N.  S. 
678. 

30.  On  a  prosecution  against  the  consignee 
of  goods,  under  a  statute  making  it  a  misde- 
meanor for  the  consignee  to  fail  to  deliver 
to  the  consignor  the  proceeds  or  profits  of 
sales  on  demand,  the  demand  must  fairly  ap- 
prise the  consignee  that  he  will  be  subject  to 
the  penalties  of  the  statute  if  he  fails  to 
comply.     Wright  v.  People,  61  111.  382. 


440 


MISDEMEANOR.— NEW   TRIAL. 


Evidence.        Verdict,        Judgment.     Jurisdiction  of  Court,  and  when  Exercised. 


31.  Good  charactsr.  It  is  erroneous  to 
charge  the  Jury  on  a  trial  for  a  misdemeanor, 
that  evidence  of  good  character  goes  only  to 
the  question  of  the  defendant's  guilt,  and  is 
not  to  be  regarded  in  mitigation  of  the  fine 
they  may  think  prf)per  to  assess  against  him. 
Eosenbaum  v.  State,  33  Ala.  354. 

32.  Proof  of  felony.  If  on  the  trial  of  an 
indictment  for  a  misdemeanor,  the  evidence 
prove  a  felony,  the  prisoner  must  be  ac- 
quitted of  the  misdemeanor,  in  order  to  be 
indicted  for  the  felony.  Com,  v.  Roby,  13 
Pick.  508.  But  unless  it  appears  that  the 
same  act  involves  both  offenses,  the  lesser 
is  not  merged.  Johnson  v.  State,  2  Dutch. 
313,  A  conspiracy  to  commit  a  misde- 
meanor is  not  merged,  in  carrying  out  the 
object  of  the  conspiracy.  State  v.  Murray, 
15  Maine,  100, 

5.  Verdict. 

33.  "Where  defendant  is  not  present. 
In  the  case  of  inferior  misdemeanors,  a  ver- 
dict may  be  given  in  the  absence  of  the  de- 
fendant. The  court,  after  verdict,  if  the 
defendant  do  not  appear,  should  call  him 
and  his  bail,  and  then  issue  a  warrant  to 
apprehend  the  defendant,  and  bring  him 
before  the  court  for  sentence.  Sawyer  v. 
Joiner,  16  Vt.  497. 

34.  For  attempt.  On  a  trial  for  a  mis- 
demeanor, the  defendant  may  be  convicted 
of  an  attempt  to  commit  the  offense  charged. 
Wolf  v.  State,  41  Ala.  413. 

6.  Judgment. 

35.  Upon  conviction  of  felony.  Under 
an  indictment  for  a  misdemeanor,  and  a 
conviction  of  felony,  there  cannot  be  a  judg- 
ment for  a  misdemeanor.  State  v.  Wheeler, 
3  Vt.  347. 

36.  Under  general  verdict  of  guilty. 
In  Virginia,  where  on  a  trial  for  misde- 
meanor under  the  statute,  the  jury  rendered 
a  general  verdict  of  guilty,  without  assessing 
the  fine,  it  was  held  on  motion  in  arrest, 
that  judgment  of  imprisonment  must  pass 
against  the  defendant.  Com.  v.  Frye,  1  Va. 
Cas.  19. 

37.  Arrest  of.  It  is  too  late  after  con- 
viction of  misdemeanor,  to  arrest  the  judg- 


ment for  an  alleged  variance  between  the 
information  and  i^resentmeut.  Jones'  Case, 
3  Gratt.  555. 


illuvbci\ 


See  Homicide. 


Jfcit)  ^viaL 


1.  Jukisdiction  of  court,  and  when  ex- 
ercised. 
3.  Grounds  for. 

(«)   On  account  of  indictment, 
(t)  Irregularity  in  summoning  or  imj>an- 
eling  jury. 

(c)  Disqualification  of  jurors. 

(d)  Improj:>er  admission  or  exclusion   of 
evidence. 

(e)  Erroneous  proceeding  or  instruction. 
{f)   Tampering  with  jury. 

(g)  Misconduct  of  jury. 

{h)  Surprise. 

(i)  Newly  discovered  evidence. 

(j)  Irregularities  in  the  care  or  conduct 

of  the  jury, 
(h)  Improper  rendering  of  verdict, 
(l)   Wrong  verdict. 
3.  Effect  of  setting  aside  verdict. 

1.  Jurisdiction  of  court,  and  when  ex- 
ercised. 

1.  U.  S.  courts.  The  Circuit  Courts  of 
the  United  States  have  power  to  grant  new 
trials.  U.  S.  v.  Williams,  1  Cliff.  5;  over- 
ruling U.  S.  V.  Gibert,  3  Sumner,  19;  U.  S. 
V.  Keene,  1  McLean,  439 ;  U.  S.  v.  Conner,  3 
lb.  573. 

2.  State  courts.  In  New  York,  a  court 
of  Oyer  and  Terminer  may  grant  a  new  trial 
on  the  merits,  after  conviction  of  felony. 
People  V.  Stone,  8  Wend.  39;  People  v. 
Morrison,  1  Parker,  635;  disapproving  Peo- 
ple V.  Judges  of  Dutchess  Oyer  and  Ter- 
miner, 3  Barb.  383.  In  New  York,  courts 
of  Oyer  and  Terminer  have  power  to  grant 
new  trials  to  prisoners  who  have  been  found 
guilty  upon  insufficient  evidence,  or  where 
verdicts  have  been  rendered  against  evi- 
dence.    But  it  has  been  held  that  when  they 


NEW   TRIAL. 


441 


Jurisdiction  of  Court,  and  when  Exercised. 


exercise  this  power,  the  case  ought  to  be 
such  as  to  have  made  it  the  duty  of  the 
court  to  advise  the  jury  to  acquit  the  de- 
fendant, or  that  it  was  unsafe  for  them  to 
convict  him.  People  v.  Goodrich,  3  Parker, 
518. 

3.  The  Supreme  Court  of  New  Hampshire 
may  grant  new  trials.  State  v.  Prescott,  7 
New  Hamp.  287 ;  and  so  may  the  Municipal 
Court  of  Boston.  Com.  v.  Benesh,  Thach. 
Crim.  Cas.  684 ;  and  the  Supreme  Court  of 
Massachusetts.  Com.  v.  Green,  17  Mass.  515. 

4.  Application  for  new  trial,  upon 
"what  predicated.  A  motion  for  a  new 
trial  is  based  upon  the  supposition  that 
injustice  has  been  done,  and  unless  such  is 
shown  to  have  been  the  case,  the  application 
is  invariably  denied.  State  v.  Camp,  23  Vt, 
551. 

5.  Duty  of  court.  Where  an  error  is 
committed  on  the  trial  that  materially 
affects  the  case  of  the  prisoner  to  his  preju- 
dice, it  is  the  duty  of  the  court  to  grant 
him  a  new  trial,  although  there  be  no  doubt 
of  his  guilt  upon  the  evidence.  Gardiner 
v.  People,  6  Parker,  155. 

6.  Where  error  has  clearly  intervened,  the 
general  rule  is  that  the  judgment  must  be 
reversed ;  but  not  if,  during  the  subsequent 
proceedings,  the  foundation  of  the  error  is 
overthrown,  and  the  complaining  party  can 
no  longer  say  he  has  been  injured.  People 
v.  Anderson,  26  Cal.  129. 

7.  Courts  have  no  power  to  affirm  a  judg- 
ment merely  because  the  judges  are  per- 
suaded that,  upon  the  merits  of  the  case,  the 
judgment  is  right.  If  any  error  intervenes 
in  the  proceeding,  it  is  presumed  to  be 
injurious  to  the  prisoner,  and  he  is,  in 
general,  entitled  to  a  reversal  of  the  judg- 
ment.    People  V.  Williams,  18  Cal.  187. 

8.  Discretionary  power  of  court.  It  is 
in  the  discretion  of  the  court  to  grant  a  new 
trial,  although  no  error  appears  on  the 
record.     Com.  v.  Green,  17  Mass.  515. 

9.  The  statute  of  New  York  (2  R.  S.  741, 
§  24),  which  provides  that  "if  the  Supreme 
Court  shall  reverse  the  judgment  rendered, 
it  shall  either  direct  a  new  trial,  or  that  the 
defendant  be  absolutely  discharged,  accord- 
ing to  the  circumstances  of  the  case,"  does 


not  vest  in  the  court  an  absolute  discretion. 
Where  less  than  one-third  of  the  time  for 
which  the  prisoner  had  been  sentenced  had 
exrijired,  and  there  was  nothing  in  the  case 
from  which  the  court  could  infer  that  he 
was  not  guilty,  it  was  held  error  to  discharge 
absolutely,  and  a  new  trial  was  ordered. 
People  V.  Phillips,  42  N.  Y.  200. 

10.  In  Illinois,  the  discretion  of  the  Cir- 
cuit Court  in  granting  or  refusing  a  new 
trial  will  not  be  reviewed.  Pate  v.  People, 
3  Gilman,  644;  Martin  v.  People,  13  111.  341. 
See  jiost,  sub.  263. 

11.  In  Missouri,  the  Supreme  Court  will 
not  interfere  with  the  finding  of  the  facts  by 
the  jury,  unless  manifest  injustice  has  been 
done;  nor  exercise  any  control  over  the 
discretion  of  the  lower  courts  in  granting  or 
i-efusing  new  trials,  except  in  cases  "  strong 
and  unequivocal."  State  v.  Cruise,  16  Mo. 
391. 

12.  It  must  be  a  very  clear  case  of  error 
which  will  induce  the  Supreme  Court  of 
Georgia  to  control  the  court  below,  where  it 
has  a  discretion  to  grant  or  refuse  a  new 
trial.  Jones  v.  State,  1  Kelly,  610 ;  Hodgins 
V.  State,  2  lb.  173;  Roberts  v.  State,  8  lb. 
310. 

13.  In  Arkansas,  where  no  exceptions  are 
taken  in  the  court  below  to  the  refusal  to 
grant  a  new  trial,  the  Supreme  Court  will 
take  no  notice  of  the  appeal.  Robinson  v. 
State,  5  Ark.  659.  In  North  Carolina,  where 
it  appeared  from  the  certificate  of  the  judge 
that  a  case  was  intended  to  be  made  by  him, 
but  none  was  sent  up  with  the  record,  a 
new  trial  was  granted.  State  v.  Powei's,  3 
Hawks,  376.  And  see  State  v.  Upton,  1  Dev. 
268. 

14.  Whether  the  Supreme  Court  of  Texas 
will  entertain  an  application  based  on  the 
refusal  of  the  court  below  to  grant  a  new 
trial  on  a  question  of  fact — query.  Herber 
V.  State,  7  Texas,  69. 

15.  In  case  of  vacancy  in  court.  After 
a  conviction  of  murder,  the  court  having 
become  vacant  by  death  pending  a  motion 
for  a  new  trial,  and  new  judges  commis- 
sioned to  fill  the  vacancies,  it  was  held  that 
the  new  court  would  not  sentence  the  pris- 
oners, l)ut  tliiit  it  would  allow  those  of  them 


442 


NEW  TRIAL. 


Jurisdiction  of  Court. 


Grounds  for. 


On  Account  of  Indictment. 


■who  desired  it  a  new  trial ;  and  the  court 
declined  to  hear  any  evidence  as  to  what 
opinion  the  former  court  had  entertained  in 
regard  to  the  motion  for  a  new  trial.  U.  S. 
T.  Harding,  1  Wall.  Jr.  127. 

16.  In  case  of  acquittal.  A  new  trial 
will  not  be  granted  on  a  motion  in  behalf  of 
the  prosecution  where  there  lias  been  a  ver- 
dict in  favor  of  the  prisoner.  State  v.  De 
Hart,  2  Halst.  173 ;  State  v.  Taylor,  1  Hawks, 
462;  State  v.  Martin,  3  lb.  881;  State  v. 
Wright,  3  Brev.  421. 

17.  Where  some  of  several  tried  at  the 
same  time  are  acquitted,  and  others  found 
guilty,  the  court  may  grant  a  new  trial  as 
to  such  as  were  convicted,  without  setting 
aside  the  entire  verdict.  Campbell  v.  State, 
9  Yerg.  338 ;  State  v.  Ayer,  3  Foster,  331. 

18.  Application  for  new  trial,  where 
made.  A  motion  to  set  aside  the  verdict 
and  for  a  new  trial  is  not  properly  addressed 
to  the  court  sitting  in  banc,  but  must  be  ad- 
dressed to,  and  be  heard  and  determined  by, 
the  judge  at  nisi  priiis.  State  v.  Smith,  54 
Maine,  33. 

19.  In  New  York,  the  Sui^reme  Court 
cannot,  on  a  writ  of  error,  entertain  a  mo- 
tion for  a  new  trial,  on  the  ground  that  since 
the  trial  material  evidence  favorable  to  the 
prisoner  has  been  discovered.  The  motion, 
if  it  can  be  made  in  any  court,  must  be  in 
the  Oyer  and  Terminer.  Fralich  v.  People, 
G5  Barb.  48. 

20.  In  Delaware,  a  retrial  was  had  at  the 
same  term,  the  first  juiy  having  been  dis- 
charged by  the  court.  State  v.  Updike,  4 
Harring.  581. 

21.  Absence  of  prisoner.  Where  the 
prisoner,  after  conviction  of  receiving  stolen 
goods,  concealed  himself,  it  was  held  that 
a  motion  for  a  new  trial  would  not  be  enter- 
tained until  he  was  present.  State  v.  Rippon, 
2  Bay,  99. 

22.  Hearing  of  motion.  When  the  ex- 
ceptions and  the  motion  for  a  new  trial  are 
to  be  considered  and  decided  by  the  same 
court,  both  may  be  heard  together,  or  the 
one  or  the  other  considered  first,  according 
to  the  circumstances.  Com.  v.  Peck,  1  Mete. 
438. 

23.  In  a  capital  case,  the  prisoner  may,  on 


motion  for  a  new  trial,  bring  before  the  court 
for  review  any  ruling  which  denies  him  a 
substantial  right,  whether  objected  to  by  him 
at  the  time  or  not.  Rakes  v.  People,  3  Kan- 
sas, 157. 

24.  Where  a  female  is  found  guilty  of  an 
offense  which  is  punishable  by  imprisonment, 
her  pregnancy  is  not  a  ground  for  a  new  trial. 
Coleman  v.  State,  8  Eng.  105. 

25.  A  person  who  wishes  a  new  trial,  must 
receive  it  as  to  the  whole  case.  Morris  v. 
State,  1  Blackf.  87. 

26.  AflBldavits  of  prisoner.  The  motion 
should  be  supported  by  the  affidavits  of 
other  persons  than  the  ijrisoner.  Pleasant  v. 
State,  8  Eng.  360.  The  unsupported  afiida- 
vit  of  the  defendant  that  the  testimony  of  a 
material  witness  was  false,  that  he  was  sur- 
prised by  it,  and  that  he  felt  certain  he  could 
prove  it  false  upon  another  trial,  was  held 
not  sufficient  to  obtain  a  new  trial.  Riley 
V.  State,  9  Humph.  647. 

27.  The  affidavits  of  the  prisoner's  coun- 
sel as  to  information  from  jurors  concerning-^ 
what  took  place  in  the  jury  room  are  not 
admissible  on  a  motion  for  a  new  trial. 
Wilson  V.  People,  4  Parker,  619. 

28.  Affidavits  of  jurors.  Although  the 
court  will  hear  the  affidavits  of  jurors  in 
support  of  their  verdict,  it  will  not  receive 
such  affidavits  for  the  purpose  of  impeach- 
ing the  verdict.  Cannon  v.  State,  3  Texas, 
31 ;  Bishop  v.  State,  9  Ga.  121 ;  Ward  v. 
State,  8  Blackf  101;  People  v.  Carnal,  1 
Parker,  256 ;  State  v.  Ayer,  3  Foster,  321  ; 
Anderson  v.  State,  5  Ark.  445 ;  People  v. 
Baker,  1  Cal.  403. 

29.  On  a  motion  for  a  new  trial,  the  affi- 
davits of  jurors  that  the  jury  misunderstood 
the  instructions  of  the  court  are  competent. 
Packard  v.  U.  S.  1  Iowa,  225;  Norris  v. 
State,  3  Humph.  333. 

30.  "Waiver  of  motion.  It  is  too  late  to- 
move  for  a  new  trial  after  a  motion  in 
arrest  of  judgment,  because  the  latter  as- 
sumes that  the  verdict  is  correct.  McComas 
V.  State,  11  Mo.  116. 

2.  Grounds  for. 
(a)   On  account  of  indictment. 

31.  Finding.     The  fact  that  one  of  the 


NEW  TPJAL. 


443 


Grounds  for. 


On  Account  of  Indictment.     Irregularity  in  Summoning  Jury. 


grand  jurors  -who  found  the  indictment  was 
also  one  of  the  petit  jury,  although  good 
cause  of  challenge,  is  not  ground  for  arrest 
of  judgment  or  a  new  trial.  State  v.  Tur- 
ner, 6  La.  An.  309. 

32.  Insufficiency.  In  Georgia,  a  motion 
for  a  new  trial  may  be  sustained  on  the 
ground  that  the  indictment  is  fatally  defect- 
ive, though  strictly  a  motion  in  arrest  of 
judgment  is  the  proper  mode  of  raising  the 
objection.    Wood  v.  State,  46  Ga.  322. 

33.  Absence  of.  The  mere  fact  that  the 
indictment  was  stolen  or  missing,  and  could 
not  be  sent  up  with  the  writ  of  error,  is  not 
a  ground  for  reversing  the  judgment.  Smith 
V.  State,  4  Greene,  189. 

(b)  Irregularity  in  summoning  or  impaneling 

jury. 

34.  Objection,  how  made.  When  any 
error  or  irregularity  has  intervened  in  sum- 
moning or  impaneling  the  petit  jury,  the  de- 
fendant, if  he  would  avail  himself  of  the 
objection,  unless  he  can  present  the  question 
in  the  fonn  of  an  exception  to  some  decision 
upon  the  trial,  must  bring  it  before  the 
court  upon  a  motion  for  a  new  trial.  He 
cannot  make  it  a  ground  for  reversing  the 
judgment  upon  error.  People  v.  McCann,  3 
Parker,  272. 

35.  Failure  to  return  venire.  Where  a 
prisoner  was  tried  and  convicted  without  a 
venire  returned  and  filed,  it  was  held  error, 
and  the  judgment  was  arrested  and  a  new 
trial  granted.  People  v.  McKay,  18  Johns. 
212. 

36.  Omission  to  place  names  in  box. 
The  neglect  of  the  clerk  to  place  the  names 
of  all  the  persons  returned  as  jurors  in  a  box 
from  which  juries  for  the  trial  of  issues  are 
to  be  drawn  pursuant  to  the  statute,  is  not 
ground  for  setting  aside  the  verdict,  where 
the  court  is  satisfied  that  the  party  com- 
plaining has  sustained  no  injury  from  the 
omission.     People  v.  Ransom,  7  Wend.  417. 

37.  Error  in  drawing.  The  statute  of 
New  York  as  to  drawing  and  impaneling 
juries  is  directory  to  the  clerk,  and  a  neglect 
to  conform  to  its  provisions  will  not  per  se 
be  a  sufficient  ground  for  setting  aside  the 
verdict  when  the  court  see  that  the  prisoner 


has  not  been  prejudiced.    Ferris  v.  People^ 
48  Barb.  17;  s.  c.  35  N.  Y.  125. 

38.  In  New  York,  the  object  of  the  statu- 
tory regulations  as  to  drawing  and  summon- 
ing of  jurors  is  merely  to  secure  a  fair  and 
impartial  distribution  of  the  jury  duty 
among  the  citizens.  Consequently,  in  the 
absence  of  any  suggestion  of  fraud  or  mis- 
conduct other  than  the  failure  to  observe 
the  regulations,  the  public  only  can  complain. 
Friery  v.  People,  54  Barb.  319;  afii'd  2 
Keyes,  424 ;  2  N.  Y.  Ct.  of  Appeals  Decis. 
215. 

39.  A  new  trial  was  moved  for  on  the 
ground  that  the  grand  jury  was  drawn  by  a 
boy  thirteen  years  of  age,  and  that  such 
illegal  drawing  might  have  affected  the 
composition  of  the  petit  jury.  Held  that 
the  objection  came  too  late ;  that  it  should 
have  been  made  by  a  challenge  to  the  array 
before  the  petit  jury  was  sworn.  State  v. 
Underwood,  6  Ired.  96. 

40.  Although  on  the  trial  of  a  capital 
case  the  original  venire  should  be  first  drawn 
and  tendered,  yet  if  the  court,  there  being 
only  eleven  of  the  original  panel,  should 
direct  tales  jurors  to  be  drawn  with  them, 
the  defendant  is  not  for  this  reason  entitled 
to  a  venire  de  novo  if  an  opportunity  was 
afforded  him  to  accept  or  reject  all  of  the 
original  venire.     State  v.  Lytic,  5  Ired.  58. 

41.  When  one  of  the  venire  having  been 
challenged  by  the  prosecution  and  directed 
to  stand  aside  until  the  panel  was  exhausted 
was  not  afterward  recalled,  the  prisoner  not 
asking  to  have  it  done,  and  it  being  known 
that  the  juror  was  one  of  the  prisoner's  wit- 
nesses, it  was  held  not  a  ground  for  a  venire 
de  novo.     lb. 

42.  Setting  aside  juror.  A  motion  for  a 
new  trial,  or  in  arrest  of  judgment,  will  not 
be  granted  on  the  ground  that  the  court 
ordered  one  of  the  jurors  to  stand  aside,, 
who  on  his  voir  dire  stated  that  he  had 
formed  an  opinion  from  having  conversed 
with  the  defendant,  but  that  he  then  felt 
himself  in  a  state  of  mind  to  do  justice  be- 
tween the  parties.  Stoner  v.  State,  4  Mo. 
614. 

43.  Withdrawal  of  juror.  Where  the 
prisoner  not  objecting,  one  of  the  jurors  was 


444 


NEW  TRIAL. 


Grounds  for. 


Irregularity  in  Impaneling  Jury.     Disqualification  of  Jurors. 


■withdrawn  who  was  supposed  to  be  incom- 
petent at  the  time,  but  who  was  found,  after 
the  trial  had  proceeded  by  the  substitution 
of  another  juror,  to  be  competent,  it  was 
held  not  ground  for  a  new  trial.  Com.  v. 
Stowell,  9  Mete.  573. 

44.  When  a  juror  becomes  unable  to  go 
on  with  the  trial,  the  court  on  ascertaining 
the  fact,  should  either  susjiend  the  trial  or 
discharge  him  altogether,  and  impanel  an- 
other juror  in  his  place  and  commence  the 
trial  over  again.  Baxter  v.  People,  3  Gil- 
man,  368. 

45.  Insufficient  number.  Where  after 
conviction  of  larceny,  it  appeared  that  the 
prisoner  was  tried  by  only  eleven  jurors,  the 
court  set  aside  the  judgment  and  verdict 
and  remanded  the  cause  for  a  new  trial. 
Brown  v.  State,  8  Blackf.  561. 

(c)  Disqualijication  of  jurors. 

46.  Disqualification  must  have  been  un- 
known. The  incompetency  of  a  juror,  to  be 
ground  for  a  new  trial,  must  have  been  un- 
known to  the  prisoner  when  the  juror  was 
sworn.  Lisle  v.  State,  6  Mo.  426 ;  Booby  v. 
State,  4  Yerg.  Ill;  Poore  v.  Com.  2  Va. 
Cas.  474;  State  v.  O'Driscoll,  2  Bay,  153; 
Givens  v.  State,  6  Texas,  344. 

47.  Where  the  fact  that  a  juror  had 
formed  and  expressed  an  opinion  before  the 
trial,  is  not  known  to  the  jjrisoner  or  his 
counsel  imtil  after  the  verdict,  it  is  a  good 
ground  for  arresting  the  judgment.  But  if 
they  know  of  an  objection  to  the  panel  be- 
fore verdict,  and  in  time  to  jirevent  it  and 
obtain  a  rehearing  before  another  jury,  and 
do  not  avail  themselves  of  the  opportunity, 
they  will  be  deemed  to  have  waived  the  ob- 
jection.    State  v.  Fuller,  34  Conn.  280. 

48.  A  motion  for  a  new  trial  was  made 
on  the  ground  that  one  of  the  jury  which 
had  tried  the  case,  had  before  the  trial  de- 
clared that  the  commmiity  ought  to  have 
hung  the  prisoner  without  a  trial,  and  that 
if  the  juror  was  on  a  jury  to  try  him,  he 
would  sit  there  and  perish  or  hang  him; 
and  that  this  declaration  had  not  come  to 
the  knowledge  of  the  prisoner  until  after 
the  trial.  Held  that  before  the  motion  could 
be  granted,  it  must  appear  by  the  affidavit 


of  the  prisoner's  counsel  that  he  too  had  no 
knowledge  before  verdict  of  the  declarations 
made  by  the  juror.  Anderson  v.  State,  14 
Ga.  709. 

49.  Where  a  juror  bet  on  the  result  of  the 
trial,  and  the  only  proof  of  the  prisoner's 
i>;norance  of  the  bet  was  that  the  juror  swore 
that  he  believed  that  the  defendant  did  not 
know  it,  it  was  held  that  there  was  not  suffi- 
cient ground  for  a  new  trial.  Booby  v.  State, 
4  Yerg.  111. 

50.  Objection,  when  to  be  made.  At 
common  law,  au  inquiry  cannot  be  made 
into  a  juror's  impartiality  after  he  has  been 
sworn.  The  statute  of  Massachusetts,  of 
1807,  did  not  change  this  rule.  The  objec- 
tion to  the  juror  must  be  made  as  well  by 
the  prosecution  as  by  the  prisoner,  before 
the  juror  is  sworn,  or  at  least  before  the  jury 
are  impaneled.  Com.  v.  Knapp,  10  Pick. 
477. 

51.  A  cause  of  challenge  cannot  be  made 
ground  for  a  new  trial.  State  v.  Fisher,  2 
Nott  &  McCord,  261.  Where  it  appeared 
that  one  of  the  jurors  was  a  member  of  the 
grand  jury  which  found  the  indictment, 
but  that  the  defendant  neglected  to  chal- 
lenge him  for  that  cause,  it  was  held  that 
the  defendant  was  not  entitled  to  a  new 
trial.  State  v.  O'Driscoll,  supra.  See  how- 
ever. Com.  V.  Hussey,  13  Mass.  221.  But 
whenever  an  objection  to  a  juror  would  have 
been  good  cause  of  challenge  for  favor,  it 
will  be  ground  for  a  new  trial,  if  not  discov- 
ered until  after  verdict.  Monroe  v.  State,  5 
Ga.  85. 

52.  In  Arkansas,  after  conviction  of  mur- 
der, it  was  held  that  if  the  prisoner  neglected 
to  avail  himself  before  trial  of  any  of  the 
means  provided  by  law  for  ascertaining  the 
incompetency  of  a  juror  on  account  of  preju- 
dice, the  prisoner  would  not  be  entitled  to 
a  new  trial.  Meyer  v.  State,  19  Ark.  156 ; 
Collier  v.  State,  20  lb.  36. 

53.  Where  a  defendant  fails  to  interrogate 
the  jurors  at  the  proper  time,  in  respect  to 
their  being  householders  of  the  county,  it  is 
too  late  to  raise  the  objection  afterward; 
and  a  new  trial  will  not  be  granted  on  the 
ground  that  one  of  the  jurors  was  not  a 
householder.     Kingen  v.  State,  46  Ind.  132. 


NEW  TRIAL. 


445 


Grounds  for. 


Disqualification  of  Jurors. 


54.  Insanity.  When  the  insanity  of  a 
juror  is  alleged  as  ground  for  a  new  trial,  it 
must  be  shown  by  clear  evidence.  State  v. 
Scott,  1  Hawks,  24. 

55.  On  the  trial  of  an  indictment  for  as- 
sault with  intent  to  murder,  the  defense  was 
insanity,  which  it  was  claimed  was  consti- 
tutional in  the  prisoner's  relatives,  one  of 
whom  (the  prisoner's  second  cousin)  was  a 
juror  in  the  case.  Held  that  the  fact  of  the 
juror's  relationship  to  the  defendant,  al- 
though a  proper  matter  to  be  addressed  to 
the  discretion  of  the  court,  if  brought  to  its 
notice  in  season,  was  not  a  sufficient  reason 
for  setting  aside  the  verdict.  State  v.  An- 
drews, 29  Conn.  100. 

56.  Bias  or  prejudice.  Where  it  appears 
that  a  juror  was  not  open  to  conviction  on 
the  evidence,  but  decided  the  case  in  his 
own  mind  before  the  trial,  it  is  good  ground 
for  setting  aside  the  verdict.  Com.  v.  Flan- 
agan, 7  Watts  &  Serg.  415. 

57.  After  conviction  of  treason,  a  new 
trial  was  granted,  where  it  appeared  that 
one  of  the  jurors  liad  made  declarations,  as 
well  in  relation  to  the  prisoner  personally, 
as  to  the  general  question  at  issue,  show- 
ing prejudice.     U.  S.  v.  Fries,  3  Dall.  515. 

58.  Where  after  conviction  of  murder,  it 
was  proved  that  one  of  the  jurors  stated  be- 
fore he  was  impaneled  that  if  he  were  on 
the  jury  he  would  hang  the  prisoner,  it  was 
held  that  there  must  be  a  new  trial.  Bishop 
V.  State,  9  Ga.  121.  And  the  same  was  held 
where  a  juror,  after  he  was  summoned  and 
before  trial,  declared  that  if  he  served  on 
the  jury  he  would  have  to  find  the  prisoner 
guilty.     Cody  v.  State,  3  How.  Miss.  27. 

59.  Where,  after  a  verdict  of  guilty,  on  a 
trial  for  murder,  it  was  proved  that  one  of 
the  jurors  had  stated  the  day  before  the 
trial  that  "  if  the  evidence  was  the  same  as 
on  a  former  trial  which  he  had  heard,  the 
prisoner  was  guilty  of  murder,  and  should 
be  hung,"  it  was  held  ground  for  a  new 
trial.     Sam  v.  State,  31  Miss.  480. 

60.  On  a  trial  for  murder,  one  of  the 
jurors,  when  examined  on  his  voir  dire,  said 
that  he  had  not  formed  or  expressed  an 
opinion  as  to  the  prisoner's  guilt  or  inno- 
cence, but  it  was  proved  after  conviction 


that  several  months  before  the  sitting  of  the 
court  the  juror  told  a  person  that  from  the 
best  information  he  could  get  he  was  of 
opinion  that  the  prisoners  ought  all  to  be 
hung.  Held  that  they  were  entitled  to  a 
new  trial.  Troxdale  v.  State,  9  Humph. 
411. 

61.  Where  it  was  proved  that  a  juror  who 
had  stated  that  he  had  no  prejudice,  said 
before  the  trial  that  the  prisoner  "  had 
killed  a  poor,  innocent  soldier,  and  ought 
to  have  his  neck  broke,"  which  was  not 
known  to  the  defense  when  the  jury  were 
impaneled,  it  was  held  that  the  prisoner 
was  entitled  to  a  new  trial.  Henrie  v.  State, 
41  Texas,  573. 

62.  After  conviction  of  murder  it  appear- 
ed that  one  of  the  jurors  who  sat  on  the 
trial,  soon  after  the  homicide,  declared  that 
"  the  people  ought  to  take  the  prisoner  out 
of  jail  and  hang  him ;"  and  that  another 
juror  stated  that  "  the  prisoner  ought  to  be 
hung,  and  if  he  was  at  the  Bay  he  would 
be  hung  before  night."  Held  ground  for  a 
new  trial.     People  v.  Plummer,  9  Cal.  298. 

63.  Where  a  juror,  when  interrogated, 
stated  that  he  had  formed  no  opinion  re- 
specting the  guilt  or  innocence  of  the  pris- 
oner, and  after  verdict  it  appeared  that 
before  the  trial  he  had  said  if  he  (the  pris- 
oner), is  not  hung,  there  is  no  use  of  laws, 
it  was  held  that  a  new  trial  should  be 
granted.      Busick  v.  State,  19  Ohio,  198. 

64.  After  conviction  of  forgery,  it  was 
proved  by  the  affidavit  of  a  person  that  the 
forman  of  the  jury,  on  the  morning  of  the 
day  of  trial,  had  had  a  conversation  with 
such  person  about  the  prisoner,  in  which  he 
declared  that  he  had  come  from  home  to 
hang  every  damned  counterfeiting  rascal, 
and  that  he  was  determined  to  hang  the  de- 
fendant, at  all  events,  or  words  to  that  ef- 
fect. Held  ground  for  a  new  trial.  State 
V.  Hopkins,  1  Bay,  373.  But  affidavits  call- 
ing in  question  the  verdict  of  a  jury  should 
be  received  with  caution.  State  v.  Duesloe, 
1  Bay,  377. 

65.  Where  a  person  who  was  afterward  on 
the  jury  declared  that  the  prisoner  ought  to 
be  hung,  that  there  was  nothing  that  could 
save  him,  and  a  short  time  before  the  trial 


44G 


NEW  TRIAL. 


Grounds  for. 


Disqualification  of  Jurors. 


told  the  prisoner  that  if  he  served  on  the 
jury  he  (the  prisoner)  would  not  be  hung, 
and  when  sworn  as  a  juror  on  the  trial  said 
that  he  had  formed  no  opinion,  it  was  held 
that  there  must  be  a  new  trial.  Sellers  v. 
People,  3  Scam.  412. 

66.  Opinion  which  is  not  fixed  will  not 
disqualify.  After  conviction  of  murder  in 
the  second  degree,  the  prisoner  moved  for  a 
new  trial,  on  the  ground  that  one  of  the 
jurors,  before  the  trial,  said,  in  the  hearing 
of  another  person,  that  the  prisoner  ought 
to  be  hung.  Held  that  as  the  declaration 
did  not  appear  to  have  been  a  fixed  opinion, 
it  was  not  sufficient  cause  for  setting  aside 
the  verdict.  Smith  v.  Com.  2  Va.  Cas.  6. 
And  see  Com.  v.  Flanagan,  7  Watts  & 
Serg.  415. 

67.  Where  it  was  proved  that  one  of  the 
jurors  admitted  in  a  conversation  with  some 
j'oung  men,  who  were  questioning  him  as  to 
the  propriety  of  the  verdict,  that  he  had 
formed  the  opinion  that  the  prisoner  was 
guilty  before  the  trial,  it  was  held  that  as 
the  conversation  was  not  of  a  serious  char- 
acter, and  was  elicited  by  an  improper  criti- 
cism of  the  verdict,  there  was  no  cause  for 
a  new  trial.     Monroe  v.  State,  5  Ga.  85. 

68.  Where,  in  a  capital  case,  a  juror,  be- 
fore he  was  impaneled,  declared  that  if  the 
prisoner  killed  the  man,  he  ought  to  be 
hung,  it  was  held  that  as  the  declaration 
was  hypothetical,  it  was  not  cause  for  grant- 
ing a  new  trial.  Com.  v.  Hughes,  5  Rand. 
655.  And  the  same  was  held  where  a  juror 
stated  before  trial  that  if  the  testimony  was 
as  he  had  heard  it,  the  prisoner  was  guilty, 
and  would  be  hung.  Mitchum  v.  State,  11 
Ga.  615. 

89.  Opinion  founded  on  rumor.  The 
loose  impressions  and  conversations  of  a 
juror,  founded  upon  rumor,  are  not,  when 
disclosed  after  verdict,  ground  for  a  new 
trial.  Howerton  V.  State,  Meigs,  262;  Ken- 
nedy V.  Com.  2  Va.  Cas.  510;  Brown  v. 
Com.  lb.  516  ;  Smith  v.  Com.  lb.  6;  Monroe 
V.  State,  5  Ga.  85. 

70.  On  a  trial  for  arson,  a  juror  testified 
on  his  voir  dire  that  he  had  not  formed  an 
opinion  as  to  the  prisoner's  guilt  or  inno- 
cence, but  upon  being  challenged  peremp 


torily  by  the  defense,  remarked:  "It  wa.«i 
well  I  was  rejected,  for  if  I  were  on  the  jury, 
I  would  send  her  the  other  side  of  Boston." 
Afterward  the  defense  chose  this  person  as 
a  juror,  not  then  having  any  knowledge  of 
his  remarks.  Held  no  ground  for  a  new 
trial.     Com.  v.  Hailstock,  2  Graft.  564. 

71.  Ezaminationof  juror  on  oath.  Where 
a  person  called  as  a  juror  in  a  capital  case, 
testified  that  he  had  not  formed  or  expressed 
an  opinion  respecting  the  guilt  or  innocence 
of  the  prisoner,  and,  after  the  verdict  it  was 
proved  that  he  had  declared  a  few  minutes 
before,  to  another  person,  that  he  could  not 
serve,  because  he  had  made  up  his  mind, 
which  was  unknown  to  the  prisoner  when  he 
accepted  the  juror,  it  was  held  not  cause  for 
a  new  trial,  first,  because  such  declaration 
by  the  juror  was  not  on  oath,  and  secondly, 
because  it  was  contradicted  by  the  juror  on 
oath.  State  v.  Scott,  1  Hawks,  24.  And  sec 
Heath's  Case,  1  Rob.  735. 

72.  Where  before  the  jury  were  impan- 
eled for  the  trial  of  an  indictment  for 
arson,  one  of  the  jurors  expressed  an  opinion 
unfavorable  to  the  prisoner,  but  being  sub- 
sequently examined  on  oath,  stated  that  he 
was  wholly  impartial,  it  was  held  that  there 
was  no  ground  for  a  new  trial.  Curran's 
Case,  7  Graft.  619. 

73.  A  statement  of  the  prisoner's  former 
trial,  was  published  in  a  paper  in  the  county 
in  which  his  second  trial  took  place,  by  the 
judge,  commenting  severely  on  his  character 
and  conduct.  But  the  jury,  on  their  voir 
dire  denied  that  they  had  formed  any  opin- 
ion, and  it  also  appeared  that  the  writer  of 
the  statement  was  not  known  until  after  the 
second  trial.  Held  not  ground  for  a  new 
trial.     Vance  v.  Com.  2  Va.  Cas.  162. 

74.  Denial  by  juror  of  previous  bias. 
Where  a  new  trial  is  moved  for  on  the 
ground  that  a  juror  had  expressed  the  opin- 
ion before  the  trial,  that  the  prisoner  was 
guilty,  the  juror  is  competent  to  testify  in 
denial  of  the  bias  imputed  to  him.  State 
V.  Howard,  17  New  Hamp.  171;  State  v. 
Pike,  20  lb.  344.  If  the  court,  upon  hear- 
ing the  explanation  of  the  juror,  and  any 
testimony  he  may  present  by  affidavits,  is 
satisfied  that  the  juror  was  competent,  the 


NEW  TRIAL. 


447 


Grounds  for. 


Improper  Admission  or  Exclusion  of  Evidence. 


verdict  will  not  be  disturbed :  especially 
when  lie  was  not  put  upon  his  »o/?'  dire,  and 
no  questions  were  asked  him.  Jim  v.  State, 
15  Ga.  535.  See  Anderson  v.  State,  14  lb. 
709. 

{d)  Impraper  admission  or  exclusion  of  evi- 
dence. I  y 

75.  Witness  not  sworn.  After  a  convic- 
tion for  misdemeanor,  no  exceptions  having 
been  taken  during  the  trial,  the  defendant 
moved  to  set  aside  the  verdict,  on  the  ground 
that  a  witness  for  the  prosecution  testilied 
without  being  sworn.  Held  that  as  it  did 
not  appear  but  that  the  defense  knew  that 
the  witness  was  not  sworn  at  the  time  he 
testified,  nor  appear  that  the  witness  testified 
falsely,  or  that  the  defendant  had  sustained 
any  injury,  the  motion  must  be  denied.  State 
v.  Camp,  23  Vt.  551. 

76.  Withdrawal  of  witness.  Where  a 
girl  six  years  of  age,  upon  whom  it  was 
charged  the  defendant  committed  an  assault 
with  intent  to  commit  a  rape,  after  being  sworn 
as  a  witness,  was  withdrawn  before  she  had 
testified,  it  was  held  that  the  fact  that  her  ap- 
pearance on  the  stand  was  calculated  to  ex- 
cite the  sympathies  of  the  jury,  was  no 
ground  for  a  new  trial.  People  v.  Graham, 
21  Cal.  261. 

77.  Irrelevant  evidence.  Where  irrele- 
vant testimony  has  been  admitted,  and  the 
chances  are  equal  that  it  may  have  injuri- 
ously affected  the  minds  of  the  jury,  a  new 
trial  should  be  granted.  Hobergv.  State,  3 
Minn.  262. 

78.  Where  the  prosecution  was  permitted 
to  introduce  proof  of  the  violent  temper  of 
the  accused,  such  evidence  being  irrelevant 
to  the  issue,  it  was  held  gi'ound  for  a  new 
trial.     State  v.  Merrill,  2  Dev.  269. 

79.  Where  upon  a  trial  for  passing  a 
counterfeit  bank  bill,  the  prosecution  proved 
the  passing  by  the  prisoner  of  two  other 
bills  two  or  three  days  after  the  transaction 
for  which  he  was  upon  trial,  which  latter 
passing  did  not  appear  to  have  any  connec- 
tion with  the  alleged  oflfense,  it  was  held 
that  as  the  evidence  was  calculated  to  excite 
suspicion  and  prejudice  against  the  prisoner, 
and  had  no  legal  bearing  upon  the  issue,  its 


admission  was  ground  for  a  new  trial.  Peo- 
ple V.  Dibble,  5  Parker,  28. 

80.  But  where  evidence  is  admitted  which 
is  only  competent  in  connection  with  other 
proposed  evidence,  and  the  latter  is  not 
introduced,  and  the  court  charges  the  jury 
to  disregard  the  former,  its  admission  is  not 
error.     People  v.  Pitcher,  15  Mich.  397. 

81.  Admission  of  illegal  evidence.    If 

illegal  evidence  be  admitted  against  the 
prisoner,  after  objection,  it  will  be  ground 
for  a  new  tiial.  Com.  v.  Bosworth,  22 
Pick.  397 ;  State  v.  Allen,  1  Hawks,  6 ;  State 
V.  Merrill,  2  Dev.  269;  Com.  v.  Green,  17 
Mass.  515.  The  admission  of  illegal  evi- 
dence cannot  be  disregarded  or  excused 
upon  the  ground  that  the  other  evidence  in 
the  case  was  sufficient  to  justify  a  convic- 
tion. The  conviction  must  be  had  by  legal 
evidence  only.  Rosenweig  v.  People,  63 
Barb.  634.  Where  improper  evidence  has 
been  received  which  might  have  influenced 
the  jury,  a  new  trial  will  be  granted,  even 
though  there  be  sufficient  other  evidence  to 
sustain  the  verdict.  Peck  v.  State,  2  Humph. 
78. 

82.  Illegal  evidence  presumed  injurious. 
The  intendment  of  law  is,  that  an  error  in 
the  admission  of  evidence  is  prejudicial  to 
the  party  objecting,  and  will  be  ground  for 
the  reversal  of  the  judgment,  unless  the  in- 
tendment is  clearly  repelled  by  the  record. 
Coleman  v.  People,  58  N.  Y.  555. 

83.  Presumption  of  injury  may  be  re- 
butted. But  although  the  reception  of  il- 
legal evidence  is  ijresumptively  injurious  to 
the  party  objecting  to  its  admission,  yet 
where  it  appears  from  an  examination  of 
the  whole  record  that  the  result  would  have 
been  the  same  if  the  objectionable  proof  had 
been  rejected,  the  error  furnishes  no  ground 
for  reversal.  People  v.  Gonzales,  35  N.  Y. 
49 ;  Eggler  v.  People,  3  N.  Y.  Supm.  N.  S. 
796;  State  v.  Engle,  1  Zabr.  347;  State 
v.  Ford,  3  Strobh.  517,  note. 

84.  Under  an  indictment  for  selling  adul- 
terated milk,  it  was  held  not  a  ground  for  a 
new  trial,  after  a  verdict  of  guilty,  that  the 
certificate  of  an  inspector  of  milk  was  ad- 
mitted in  evidence,  the  inspector  testifying 


448 


NEW    TRIAL. 


Grounds  for. 


Improper  Admission  or  Exclusion  of  Evidence. 


to  all  the  facts  set  forth  in  the  certificate. 
Com.  V.  Waite,  11  Allen,  264. 

85.  Misdirection  of  evidence.  Where 
the  testimony  on  a  trial  for  murder  is  rele- 
vant, but  its  logical  and  legal  effect  is  mis- 
directed to  the  prejudice  of  the  defendant, 
which  is  mainly  due  to  the  course  adopted 
by  the  prosecution  in  provoking  both  sides 
of  the  case,  and  then  undertaking  to  rebut 
so  much  of  the  evidence  as  tends  to  justify 
the  homicide,  a  new  trial  will  be  granted. 
People  v.  Taylor,  36  Cal.  355. 

86.  Failure  to  object.  Where  illegal 
evidence  is  allowed  to  go  to  the  jury  with- 
out objection,  either  when  it  is  introduced 
or  in  the  argument  of  the  case,  the  illegality 
is  waived,  and  its  admission  will  not  be 
ground  for  a  new  tnal.  Bishop  v.  State,  9 
Ga.  131.  Where  therefore  on  the  trial  of  an 
indictment  charging  a  single  assault,  evi- 
dence was  submitted  to  the  jury  of  two 
different  and  distinct  assaults,  without  objec- 
tion from  the  defendant,  it  was  held  that  he 
was  not  entitled  to  a  new  trial.  Drake  v. 
Com.  10  B.  Mon.  235.  And  the  same  has 
been  held  in  capital  cases,  where  improper 
evidence  has  gone  to  the  jury  without  ob- 
jection. State  V.  Gordon,  1  R.  I.  179;  Stone 
V.  State,  4  Humph.  27;  Bishop  v.  State,  9 
Ga.  121;  Drake  v.  Com.  supra;  State  v. 
Camp,  23  Vt.  551 ;  contra.  Rakes  v.  People, 
3  Neb.  157. 

87.  But  where  a  prisoner  is  convicted  of 
a  capital  offense,  and  an  indispensable  ele- 
ment to  constitute  such  offense  is  unsup- 
ported by  any  evidence  tending  to  prove 
the  same,  the  judgment  will  be  reversed, 
although  no  exception  was  taken  on  the 
trial.     McCann  v.  People,  6  Parker,  629. 

88.  Inability  to  present  evidence.  It  is 
not  in  general  a  ground  for  a  new  trial  that 
the  evidence  of  persons  who  were  jointly  in- 
dicted with  the  defendant,  but  who  were 
not  convicted,  is  material  to  prove  his  inno- 
cence.    State  V.  Bean,  36  New  Hamp.  133. 

89.  Where  several  are  joined  in  the  prose- 
cution to  prevent  their  being  used  as  wit- 
nesses for  the  defense,  the  party  desiring 
their  testimony  should  ask  for  a  separate 
trial;  or  if  there  be  no  testimony  against 
one  of  several  defendants,  he  should  move 


for  a  separate  verdict,  which  motion  being 
granted,  he  would  be  a  competent  witness 
for  the  defense.  A  neglect  in  such  case  to 
move  for  a  separate  trial  or  separate  verdict 
would  be  cause  for  refusing  a  new  trial  for 
the  purpose  of  giving  the  parties  convicted 
the  desired  testimony.  State  v.  Ayer,  3 
Foster,  331. 

90.  But  in  Texas,  where  one  of  two  joint 
defendants  was  acquitted  and  the  other 
convicted,  it  was  held  that  the  latter  was 
entitled  to  a  new  trial  upon  showing  that 
his  codefendant  was  a  material  witness  in 
his  behalf,  but  could  not  testify  by  reason 
of  being  joined  in  the  indictment.  Lyles  v. 
State,  41  Texas,  173. 

91.  A  new  trial  will  be  granted  where  it 
appears  that  material  evidence  for  the  de- 
fense was  excluded  by  reason  of  the  form  in 
which  the  indictment  is  drawn.  Com.  v. 
Manson,  3  Ashm.  31. 

92.  Withholding  evidence  from  jury. 
Where  the  court  improperly  excludes  com- 
petent evidence  in  relation  to  part  of  the 
offense  charged,  and  the  prosecution  after- 
ward abandons  that  part,  the  erroneous 
ruling  will  not  be  ground  for  a  new  trial. 
People  V.  Cunningham,  1  Denio,  534. 

93.  Where  on  the  trial  of  an  indictment 
for  conspiracy  to  defraud,  a  letter  from  the 
defendant  to  his  brother  which  was  given 
in  evidence  was  not  delivered  to  the  jury 
with  the  other  papers  in  the  case,  and  it 
appeared  that  the  letter  was  not  needed  by 
the  jury  in  their  deliberations,  its  absence 
was  held  not  a  ground  for  setting  aside  the 
verdict.     State  v.  Pike,  30  New  Hamp.  344. 

94.  Jury  viewing  premises  in  absence  of 
prisoner.  The  fact  that  the  jnry  on  a  trial 
for  murder  were  permitted  by  the  court  to 
view  the  scene  of  the  alleged  crime  in 
custody  of  the  sheriff  without  being  accom- 
panied by  the  prisoner  is  no  reason  for  set- 
ting aside  the  verdict,  especially  if  he 
neither  objected  nor  asked  leave  to  go  with 
them.  People  v.  Bonney,  19  Cal.  426.  See 
post,  sub.  316. 

95.  Credibility  of  witness.  A  new  trial 
will  not  be  granted  where  the  sole  question 
is  the  credibility  of  a-i  accomplice,  although 


NEW  TRIAL. 


449 


Grounds  for. 


Improper  Admission  of  Evidence.       Erroneous  Proceeding. 


he  was  the  only  witness.     Keithler  v.  Com. 
10  Smed.  &  Marsh.  192. 

96.  Where  the  granting  of  a  new  trial  de- 
pends upon  the  credibility  of  a  witness,  a 
denial  of  the  motion  by  the  court  below  will 
not  be  regarded  as  error.  Weinzorflin  v. 
State,  7  Blackf.  186. 

97.  Improper  argument.  Where  the 
prosecution  is  permitted,  contrary  to  the  de- 
fendant's objection,  to  argue  to  the  jury  from 
matters  not  in  evidence,  and  it  is  probable 
that  the  defendant  was  thereby  prejudiced, 
the  verdict  will  be  set  aside.  State  v.  Foley, 
45  New  Hamp.  466. 

98.  Evidence  to  be  set  out.  Upon  an 
an  application  for  a  new  trial,  upon  the 
ground  of  the  admission  of  improper  evi- 
dence, the  evidence  should  be  set  out,  in 
order  that  the  court  may  see  whether  or  not 
it  is  illegal.     State  v.  Clark,  12  Ired.  151. 

(e)  Erroneous 2)'>oceed big  or  instruction. 

99.  Must  have  caused  injury.  A  new- 
trial  should  not  be  granted,  even  for  a  mis- 
direction, when  it  is  evident  that  justice  has 
been  done.  Johnson  v.  State,  14  Ga.  55; 
Lester  v.  State,  11  Conn,  415;  People  v. 
Ransom,  7  Wend.  417;  State  v.  Camp,  23 
Vt.  551.  No  error  ought  to  avail  a  prisoner 
to  escape  punishment,  unless  it  manifestly 
appears  that  it  may  have  done  him  some 
material  injury.  Fralich  v.  People,  65  Barb. 
48,  per  MuUin,  P.  J. 

100.  An  error  of  the  court  to  be  ground 
for  a  reversal  of  the  judgment,  must  afi'ect 
the  substantial  rights  of  the  defendant ;  and 
the  burden  is  on  him  to  show  that  such  is 
the  case.  People  v.  Brotherton,  47  Cal.  388 ; 
s.  c.  2  Green's  Crim.  Reps.  444. 

101.  Where  a  minor  who  was  charged 
with  larceny,  was  inquired  of  in  court  if 
he  was  of  age  and  re^jlied  that  he  was  sup- 
posed to  be,  and  the  trial  proceeded  without 
the  appointment  of  a  guardian  ad  litem, 
it  was  held  after  conviction,  that  he  was  not 
entitled  to  a  new  trial.  State  v.  James,  37 
Conn.  355. 

102.  When  judgment  is  rendered  against 
the  defendant  for  the  amount  of  a  fine, 
and  that  he  remain  in  the  custody  of  the 
sheriff  until   the   line   and    costs   are  paid, 

29 


and  ©n  a  subsequent  day  of  the  term,  the 
court  in  his  absence  also  sentences  him  to 
imprisonment  in  the  county  jail,  the  latter 
judgment  only  will  be  reversed,  and  the 
cause  remanded.  Young  v.  State,  39  Ala. 
357. 

103.  Must  be  exceptions.  As  a  general 
rule,  counsel  cannot  be  heard  to  assail  the 
charge  of  the  court,  if  he  has  not  excepted 
to  it,  or  if  it  is  too  general  to  be  available. 
Fralich  v.  People,  65  Barb.  48;  State  v. 
Avery,  44  New  Hamp.  392. 

104.  But  in  a  capital  case,  where  in- 
structions do  not  announce  correct  legal 
principles,  or  are  inapplicable  to  the  case, 
a  new  trial  will  be  granted,  although  no 
exceptions  were  taken.  Falk  v.  People,  42 
111.  332. 

105.  Error  in  admitting  or  excluding 
jurors.  Where  on  a  trial  for  grand  larceny, 
the  effect  of  the  improper  disallowance  by 
the  court,  of  the  defendant's  challenge  of  a 
juror  for  cause,  was  to  contract  the  number 
of  peremptory  challenges  to  which  the  de- 
fendant was  entitled,  it  was  beld  ground  for 
a  new  trial.     People  v.  Weil,  40  Cal.  268. 

106.  Where  the  court  improperly  excused 
a  juror,  it  was  held  ground  for  a  new  trial. 
Boles  V.  State,  13  Smed.  &  Marsh.  398. 

107.  Uncalled  for  remark  by  judge. 
After  a  witness  for  the  prosecution  had 
testified,  the  defendant's  counsel,  for  the  sole 
purpose  of  contradicting  him,  introduced 
in  evidence  the  written  testimony  of  the 
witness  taken  before  the  examining  magis- 
trate, which  was  objected  to  by  the  prose- 
cuting attorney.  The  judge  in  admitting 
it  said  that  "  the  defendant's  attorney  had 
let  down  the  fence,  and  all  is  now  before 
the  jury."  Held  that  this  remark  was  ultra- 
judicial  and  misleading,  and  ground  for  a 
new  trial,  as  it  implied  that  the  written 
statement  was  evidence  of  all  the  facts  con- 
tained in  it,  and  that  it  was  the  more 
impressive  as  proof  offered  by  the  defendant 
himself.  Coppage  v.  Com.  3  Bush,  Ky.  532 ; 
see  Lanham  v.  Com.  lb.  528. 

108.  Where  the  jury  may  have  been 
misled.  If  the  testimony  in  a  capital  case 
be  not  free  from  doubt,  and  there  is  reason 
to  suppose  that  the  jury  have  been  misled 


450 


NEW  TRIAL. 


Grounds  for. 


Erroneous  Proceedings  or  Instruction.     Tampering  with  Jury. 


by  the  court  in  charging  them  as  to  the  evi- 
dence, a  new  trial  will  be  granted,  notwith- 
standing the  charge  was  correct  in  point  of 
hiw.  Foxdale  v.  State,  9  Humph.  411.  Al- 
though the  prosecuting  attorney  is  permitted 
by  the  court  to  state  the  law  incorrectly  to 
the  jury,  yet  the  verdict  will  not  for  that 
reason  be  set  aside,  if  the  court  afterward  in 
its  charge  corrected  the  error.  People  v. 
Jenness,  5  Mich.  30o. 

109.  Intimation  of  opinion.  In  Massa- 
chusetts, where  the  judge  reasoned  upon  the 
facts,  and  intimated  his  opinion  of  the  evi- 
dence, it  was  held  not  ground  for  a  new 
trial.     Com.  v.  Child,  10  Pick.  352. 

110.  Where  the  judge  in  his  charge,  after 
alluding  to  the  influence  of  proof  of  good 
character  in  a  doubtful  case,  called  the  at- 
tention of  the  jury  to  the  absence  of  such 
proof  in  the  case  before  them,  it  was  held 
no  cause  for  granting  a  new  trial.  People 
V.  White,  22  Wend.  167;  contra,  s.  c.  24  lb. 
520. 

111.  Appeal  to  prejudices  of  jury.  If 
no  legal  error  was  committed  in  the  submis- 
sion of  the  cause,  the  judgment  cannot  be 
reversed  on  the  ground  that  the  charge  of 
the  court  was  an  appeal  to  the  passions  and 
prejudices  of  the  jury.  Boyce  v.  People,  -55 
K  Y.  644. 

112.  On  the  trial  of  an  indictment  for 
assault  and  battery,  the  court  charged  the 
jury  as  follows:  "I  am  not  a  little  surprised 
that  there  should  be  an  attempt  made  to 
acquit  this  defendant,  but  it  is  nevertheless 
your  duty  to  find  according  to  the  evidence," 
and  then  proceeded  to  define  the  oflense, 
and  to  instruct  the  jury  to  acquit  or  convict 
according  to  the  evidence.  Held  not  cause 
for  a  new  trial.     Keaton  v.  State,  7  Ga.  189. 

113.  Neglecting  or  refusing  to  charge. 
Where  on  a  trial  for  murder,  the  evidence 
tended  to  show  that  it  was  manslaughter 
only,  and  the  judge  in  his  charge  neglected 
so  to  instruct  the  jury,  or  to  tell  them  the 
distinction  between  murder  and  manslaugh- 
ter, it  was  held  ground  for  setting  aside  the 
verdict.     State  v.  Donnell,  32  Vt.  491. 

114.  In  New  York,  a  new  trial  was  denied 
where  the  objection  was  that  the  judge, 
although  requested,  refused  to  charge  the 


jury,  the  trial  closing  so  late  on  Saturday 
night  that  had  the  jury  been  charged  they 
must  have  been  dismissed  or  kept  over 
Sunday.     People  v.  Gray,  5  Wend.  289. 

115.  Charging  a  second  time.  On  the 
trial  of  an  indictment  for  libel,  the  judge 
charged  the  jury  a  second  time  after  they 
returned  into  court  and  reported  that  they 
could  not  agree,  although  they  did  not  ask 
for  further  instructions.  Held  not  ground 
for  a  new  trial.  Com.  v.  Snelling,  15  Pick. 
321. 

116.  Failure  to  interrogate  prisoner. 
Upon  the  reversal  of  the  judgment  of  a  Court 
of  Oyer  and  Terminer,  after  conviction  for 
murder,  on  the  ground  that  the  return  to  the 
writ  of  error  does  not  show  that  the  prison- 
er was  asked  if  he  had  anjthing  to  say  why 
sentence  should  not  be  jironounced,  a  new 
trial  will  be  granted.  Graham  v.  People, 
63  Barb.  468. 

(/)  Tampering  with  jury. 

117.  By  prosecutor  beforetrial.  Where 
it  appeared  that  on  a  trial  for  perjury,  pa- 
pers calculated  to  make  an  unfavorable 
impression  on  the  jury,  were  exhibited  by 
the  prosecutor  at  several  public  places  and 
read  in  the  hearing  of  the  jurors  during  the 
sitting  of  the  court  before  the  trial,  the 
verdict  was  set  aside.  State  v.  Hascall,  6 
New  Hamp.  352. 

118.  By  counsel  for  prosecution.  Where 
after  the  jury  w^ere  impaneled  on  a  trial  for 
robbery,  one  of  the  counsel  for  the  prosecu- 
tion took  care  of,  fed  and  provided  during 
the  night  for  the  horses  of  two  of  the  jurors, 
free  of  charge,  it  was  held  ground  for  a  new 
trial.     Springer  v.  State,  34  Ga.  379. 

119.  By  witness  for  prosecution.  After 
conviction  it  was  proved  that  a  witness  for 
the  prosecution  made  remarks  in  the  pres- 
ence of  one  of  the  jurors,  prejudicial  to  the 
prisoner's  character,  and  to  the  effect  that 
he  believed  the  prisoner  guilty.  But  it  was 
further  proved  that  as  soon  as  the  witness 
saw  the  juror  he  stopped  talking,  that  he 
did  not  know  the  juror  was  present,  and 
that  the  juror  told  him  afterward  that  he  did 
not  take  any  notice   of  the   conversation. 


NEW  TRIAL. 


451 


Grounds  for. 


Tampering  with  Jury. 


Held  no  ground  for  a  new  trial.      State  v. 
Ayer,  3  Foster,  301. 

120.  By  stranger.  Although  where  a 
communication  is  made  to  a  jury  while  de- 
liberating, by  a  party  in  whose  favor  the 
verdict  is  rendered,  it  will  avoid  the  verdict, 
yet  a  verdict  will  not  in  general  be  set  aside 
by  reason  of  such  communication,  when  it 
is  made  by  the  losing  party  or  by  a  stranger. 
People  v.  Carnal,  1  Parker,  256. 

121.  In  North  Carolina,  it  has  been  held 
that  where  it  is  not  shown  that  there  was, 
but  only  that  there  might  have  been,  im- 
proper influence  brought  to  bear  on  the 
jury,  a  new  trial  is  in  the  discretion  of  the 
presiding  judge  ;  but  that  where  such  in- 
fluence is  proved,  the  Supreme  Court  will, 
as  matter  of  law,  direct  a  retrial.  State  v. 
Tilghman,  11  Ired.  513. 

122.  Where,  during  a  trial  for  murder,  a 
person  spoke  to  one  of  the  jurors,  in  the 
presence  of  the  court,  about  the  health  of 
the  juror's  family,  it  was  held  not  ground 
for  a  new  trial.  Rowe  v.  State,  11  Humph. 
491. 

123.  Where  the  sheriif  took  the  jury  to  a 
private  house,  and  there  left  them  in  the 
parlor,  in  company  with  three  other  men,  it 
was  held  that  this  was  sufficient  ground  for 
a  new  trial,  although  it  appeared  from  the 
affidavits  of  the  three  persons  that  no  con- 
versation was  had  with  the  jury  during  the 
sheriff's  absence  in  relation  to  the  trial. 
Com.  V.  Wormley.  8  Graft.  712. 

124.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  murder,  S.,  one  of  the 
standing  jurors  of  the  term,  but  not  sitting 
in  the  cause,  stated  to  a  juror  after  they  had 
retired  for  the  night,  in  a  bed-room  which 
they  both  occupied,  that  he  guessed  the 
defendant  had  a  hard  case;  that  he  had 
heard  that  when  he  was  in  the  book  business 
at  the  South,  a  person  refused  to  take  a  book 
subscribed  for,  and  that  the  defendant  drew 
two  pistols,  and  threatened  to  blow  the 
person's  brains  out  if  he  did  not  take  it.  S., 
also,  while  the  case  was  on  trial,  told  sub- 
stantially the  same  story  in  a  i^ublic  stage- 
coach, in  which  with  several  passengers 
were  two  other  jurors.  Held  that  the  former 
conversation  was  cause  for  setting  aside  the 


verdict,  but  not  the  latter.     State  v.  An- 
drews, 29  Conn.  100. 

125.  On  a  trial  for  malicious  stabbing,  it 
appeared  that  the  jury,  being  in  a  room  in 
charge  of  an  oflBcer,  the  officer  left  the  room 
for  wood  and  water,  and  that,  in  his  absence, 
a  person  walked  into  the  room,  and  on  being 
told  by  the  jury  to  take  a  seat,  did  so  apart 
from  the  jury,  but  that  there  was  no  con- 
versation between  this  person  and  the  jury 
until  the  officer  came  back,  when  the  in- 
truder was  removed.  Held  not  a  ground  for 
a  new  trial.  Luster  v.  State,  11  Humph. 
169. 

126.  On  a  trial  for  passing  a  counterfeit 
bank  note,  the  jury,  after  they  retired  to 
deliberate,  found  a  placard  on  the  wall  of 
their  room,  which  stated  that  one  of  their 
number  was  a  counterfeiter,  and  that  he  had 
purposely  got  on  the  jury;  and  it  apjieared 
that  all  of  the  jury  read  the  placard.  Held 
that  there  was  no  cause  for  a  new  trial,  un- 
less it  appeared  that  the  juror,  by  reason  of 
the  placard,  was  disconcerted,  or  that  the 
jurors  were  thereby  influenced  in  giving 
their  verdict.     Hall's  Case,  6  Leigh,  615. 

127.  By  consent  of  the  prisoner,  the  jury, 
on  a  trial  for  murder,  were  taken  by  the 
officer  in  charge  of  them  to  a  hotel,  there  to 
be  kept  until  they  could  agree.  At  the 
hotel  they  were  taken  to  the  public  table, 
where  they  ate,  the  officer  sitting  between 
them  and  the  guests.  Rooms  were  prepared 
for  them  at  the  hotel ;  and  at  their  request, 
a  barber  was  sent  for  to  shave  some  of  them 
and  cut  their  hair.  The  barber  was  in  the 
room  more  than  an  hour,  and  for  a  few 
minutes  of  that  time  he  was  there  in  the 
absence  of  the  officer.  Held  that  although 
there  was  no  evidence  that  the  juiy  had 
been  tampered  with,  the  prisoner  was  enti- 
tled to  a  new  trial.  Boles  v.  State,  13  Smed. 
&  Marsh.  398. 

128.  By  officer.  Where,  on  a  trial  for 
murder,  it  appeared  that  two  of  the  officers 
who  had  the  jury  in  charge  spoke  of  the 
enormity  of  the  offense,  by  saying  that  it  was 
a  worse  case  than  D.'s,  and  one  of  them  said 
public  opinion  was  against  the  prisoner,  it 
was  held  sufficient  cause  for  a  new  trial. 
Nelms  V.  State,  13  Smed.  &  Marsh.  500. 


452 


NEW  TRIAL. 


Grounds  for. 


Tampering  with  Jury. 


Misconduct  of  Jury, 


129.  Where  it  appeared,  after  conviction 
for  an  aggravated  assault,  that  the  officer  in 
charge  of  the  jury  went  into  their  room 
while  they  were  considering  their  verdict, 
and  argued  with  them  that  the  defendant 
ought  to  be  punished  severely,  it  was  held 
ground  for  a  new  trial.  Dansby  v.  State,  34 
Texas,  393. 

130.  Where  refreshments  were  given  to 
the  jury  in  a  capital  case  by  the  officer  who 
had  charge  of  them  and.  another  person,  but 
it  appeared  that  neither  the  officer  nor  the 
other  person  had.  any  conversation  with  the 
jury,  it  was  held  that  there  was  no  cause  for 
a  new  trial.     Com.  v.  Roby,  12  Pick.  496. 

131.  Person  not  sworn  taking  charge  of 
jury.  Where,  on  a  trial  for  murder,  a  per- 
son not  sworn  to  take  charge  of  the  jury, 
went  to  the  jury  room  in  the  absence  of  the 
proper  officer,  and  took  charge  of  them,  it 
was  held  ground  for  a  new  trial.  Hare  v. 
State,  4  How.  Miss.  187. 

132.  Judge  communicating  with  jury 
after  they  have  retired.  If  the  judge 
communicate  with  the  jury  respecting  his 
charge  after  they  have  retired,  except  pub- 
licly and  in  the  presence  of  the  prisoner,  it 
will  be  ground  for  a  new  trial.  Kirk  v. 
State,  14  Ohio,  511. 

133.  It  is  error  for  the  judge,  after  the 
jury  have  retired  to  deliberate,  to  give 
private  instructions  to  them  out  of  the 
hearing  of  counsel.  Where,  therefore,  after 
conviction  of  manslaughter,  it  appeared  that 
one  of  the  jurors  went  to  the  judge,  saying 
that  he  had  come  under  the  charge  of  the 
sheriff,  at  the  request  of  the  jury,  who  had 
found  their  verdict,  to  ask  the  judge  whether 
it  was  competent  for  the  jury  to  attach  to 
their  verdict  a  recommendation  of  the  pris- 
oner to  mercy,  and  that  the  judge  replied 
that  it  was  perfectly  competent  for  them  to 
do  so,  it  was  held  ground  for  a  new  trial. 
State  V.  Frisby,  19  La.  An.  143. 

134.  The  jury,  after  being  out  a  long 
time,  were  called  into  court,  and  in  answer 
to  the  judge,  stated  that  there  was  no  pros- 
pect of  their  agreeing.  The  judge  there- 
upon told  them  that  he  must  have  a  verdict, 
that  the  case  was  one  of  peculiar  character, 
and  that  he  had  reason  to  believe,  from  in- 


formation received,  that  some  of  the  jury 
had  been  approached  and  tampered  with 
previous  to  the  trial.  The  jury  then  retired 
and  found  the  defendant  guilty  of  man- 
slaughter. Held  that  as  the  remarks  of  the 
judge  had  a  tendency  to  coerce  the  jury, 
they  were  ground  for  a  new  trial.  State  v. 
Ladd,  10  La.  An.  271. 

135.  After  the  jury  had  retired  to  de- 
liberate, and  the  court  had  adjourned,  the 
jury  sent  a  note  to  the  judge  asking  for 
information  on  two  points.  The  judge 
returned  the  note  to  them  without  any 
reply,  but  directed  the  officer  to  tell  the 
foreman  of  the  jury  to  read  to  them  from 
1  Pickering,  342,  to  the  effect  that  no  com- 
munication whatever  ought  to  take  place 
between  the  judge  and  the  jury  after  the 
cause  had  been  submitted  to  them,  unless  in 
open  court  and  in  the  presence  of  the 
respective  counsel.  Held  not  ground  for  a 
new  trial.  Com.  v.  Jenkins,  Thach.  Crim. 
Cas.  118. 

13S.  While  the  jury  were  deliberating  on 
a  trial  for  murder,  one  of  them  sent  the 
officer  who  had  charge  of  them  to  the  court, 
to  request  that  some  book  containing  the 
law  of  manslaughter  might  be  sent  to  them. 
The  officer  returned  and  told  the  jury  that 
"  Judge  Edmonds  said  they  had  nothing  to 
do  with  manslaughter; "  and  they  found  the 
prisoner  guilty  of  murder.  Held  that  the 
communication  of  the  judge  to  the  jury  was 
not  ground  for  a  new  trial.  People  v.  Car- 
nal, 1  Parker,  25G. 

(g)  Misconduct  of  jury. 

137.  Will  not  be  presumed.  On  a  motion 
for  a  new  trial  on  the  ground  of  misconduct 
of  the  jurors,  the  presumption  is  that  they 
performed  their  duty  in  accordance  with 
their  oaths;  and  to  overthrow  this  jjresump- 
tion,  there  must  be  direct  and  positive  tes- 
timony.    People  V.  Williams,  24  Cal.  31. 

138.  Taking  notes.  Where  jurors,  con- 
trary to  the  defendant's  objection,  and  after 
the  court  has  told  them  they  must  not  do 
so,  persist  in  taking  notes  of  the  evidence, 
it  will  be  ground  for  a  new  trial.  Cheek  v. 
State,  35  Ind.  492.  But  not  if  the  defendant 
does  not  object,  and  the  jurors  do  not  act  in 


NEW  TRIAL. 


453 


Grounds  for. 


Misconduct  of  Jury. 


disobedience   to    the  orders   of   the  court. 
Cluck  V.  State,  40  lb.  263. 

139.  Juror  sleeping.  Where  it  appeared 
after  verdict  tliat  during  the  progress  of  a 
trial  for  conspiracy  one  of  the  jurors  was 
asleep,  it  was  held  that  the  defendant  should 
have  called  attention  to  the  fact  at  the  time, 
and  that  not  having  done  so,  it  was  not 
ground  for  a  new  trial.  U.  S.  v.  Boyden, 
Lowell,  266. 

140.  Separation  without  improper  mo- 
tive.  A  brief  separation  of  the  jury,  for 
necessary  jjurposes,  without  any  imputation 
of  improper  motives,  even  in  a  capital  case, 
and  contrary  to  the  directions  of  the  court, 
will  not  be  ground  for  a  new  trial.  But  if 
there  be  the  least  suspicion  of  abuse,  the 
verdict  should  be  set  aside.  People  v.  Doug- 
lass, 4  Cow.  26 ;  State  v.  Lytic,  5  Ired.  58 ; 
Whitney  v.  State,  8  Mo.  165;  Jarnagin  v. 
State,  10  Yerg.  529;  Thomas  v.  Com.  2  Va. 
Cas.  470.  Where  a  juror  withdrew  from  his 
fellows  in  consequence  of  illness,  but  while 
absent  talked  with  no  one  about  the  case, 
and  was  subject  to  no  improper  influences, 
it  was  held  not  good  cause  for  complaint. 
People  V.  Reynolds,  2  Mich.  422.  For  the 
separation  to  vitiate  the  verdict,  it  must  be 
shown  that  the  jurors  might  have  been 
tampered  with,  or  improperly  influenced,  or 
some  means  exerted  over  them  in  con- 
sequence of  their  separating,  so  as  to  in- 
fluence their  verdict.  Reins  v.  People,  30 
111.  256. 

141.  In  Missouri,  the  rule  has  been  long 
established  that  the  mere  fact  of  the  separa- 
tion of  the  jury  in  a  criminal  case  will  not 
be  ground  for  a  new  trial,  unless  it  apjiear 
that  they  were  tampered  with,  or  that  they 
misbehaved.  State  v.  Dougherty,  55  Mo. 
69;  s.  c.  2  Green's  Crim.  Reps.  610. 

142.  In  Texas,  it  has  been  held  that  ver- 
dicts in  minor  offenses,  will  not  be  set  aside 
on  the  ground  that  the  jury  separated  with- 
out the  permission  of  the  court,  unless  it  is 
manifest  that  injury  has  thereby  been  done. 
Cannon  v.  State,  3  Texas,  31. 

143.  On  a  trial  for  rajjc,  one  of  tlie  jurors 
left  his  seat  while  the  court  was  in  session, 
went  out  of  the  court  house,  passed  through 
a  group  of  persons,  and  after  a  moment's  ab- 


sence returned  to  the  jury  box.  HeU  not 
ground  for  a  new  trial.  Porter  v.  State,  2 
Carter,  435. 

144.  On  a  trial  for  murder,  the  jury  slept 
in  five  rooms  in  the  third  story  of  a  hotel, 
opening  on  a  common  passage,  which  com- 
municated with  the  street  below  by  flights 
of  stairs,  the  doors  of  their  chambers  being 
unfastened,  and  there  being  no  doors  at  either 
end  of  the  passage.  Held  not  a  separation 
in  law,  calling  for  a  new  trial.  Thompson, 
V.  Com.  8  Gratt.  637. 

145.  During  the  same  trial,  one  of  the 
jurors  went  down  stairs  to  the  pavement 
before  the  door  of  the  hotel,  in  order  to 
meet  a  passer  by  to  send  a  message  to  his 
family,  and  after  remaining  there  about  five 
minutes,  and  seeing  no  one  passing,  re- 
turned to  the  rest  of  the  jury.  Held  not  a 
cause  for  a  new  trial.     lb. 

146.  The  officer  took  charge  of  the  jury 
without  being  sworn  to  do  so;  and  the  jury 
were  allowed  to  separate.  But  it  was 
proved  that  the  separation  was  casual,  that 
there  was  no  tampering  or  opportunity  to 
tamper  with  them,  and  that  the  officer  did 
not  speak  to  them  about  the  case.  Held 
that  there  was  no  cause  for  a  new  trial. 
Stone  V.  State,  4  Humph.  27. 

147.  After  conviction  of  murder,  the  fol- 
lowing was  held  not  a  ground  for  a  new 
trial:  Before  the  termination  of  the  trial, 
and  while  the  jury  was  in  charge  of  an  offi- 
cer, one  of  them  was  permitted  by  the  officer 
to  go  to  his  house  for  the  purpose  of  chang- 
ing his  shirt,  and  was  absent  from  three  to 
five  minutes,  being  seen  by  the  officer  to  go 
upstairs  and  enter  a  room,  the  rest  of  the 
jury  remaining  below  until  he  rejoined  them. 
State  V.  O'Brien,  7  R.  L  336. 

148.  On  the  trial  of  an  indictment  for  a 
felonious  assault,  one  of  the  jurors,  after  the 
jury  had  retired  to  consider  their  verdict, 
was  seen  on  the  public  square  unattended 
by  an  officer,  in  conversation  with  a  by- 
stander; but  upon  what  subject,  and  how 
long,  was  not  shown.  Held  not  a  ground 
for  a  new  trial.     State  v.  Igo,  21  Mo.  459. 

149.  Where  on  a  trial  for  grand  larceny, 
after  the  jury  had  retired  to  deliberate,  one 
of   them,  in  company   with   the   officer  in 


454 


NEW  TRIAL. 


Grounds  for. 


Misconduct  of  Jury. 


charge,  -went  home,  a  distance  of  about  five 
hundred  yards,  and  while  going  through 
tlie  street  was  spoken  to  by  several  persons 
on  matters  not  connected  with  the  case,  it 
was  held  not  a  ground  for  a  new  trial. 
State  V.  Jones,  7  Nev.  408. 

150.  The  juiy  on  a  trial  for  murder,  re- 
fired  to  deliberate,  Thursday,  at  six  o'clock 
P.  M.,  and  rendered  their  verdict  Saturday, 
at  ten  A.  M,  Members  of  the  jury  left  the 
jury  room  at  various  times,  in  charge  of  an 
officer,  and  went  about  fifty  yards  to  obey 
the  calls  of  nature,  going  one  at  a  time  and 
returning  as  soon  as  practicable ;  the  rest  of 
the  jury  remaining  together  in  the  jury 
room  with  the  door  locked.  One  of  the 
jurors  being  ill  went  in  charge  of  the  ofiicer 
to  a  drug  store  one  hundred  and  fifty  yards 
distant,  to  get  medicine,  the  keeper  of  which 
asked  him  if  they  had  agreed  on  their  ver- 
dict, to  which  he  replied  that  they  had  not. 
Another  juror  left  the  jury  room  and  con- 
versed outside  near  the  door,  ten  or  fifteen 
minutes  with  a  third  person.  The  jury 
violated  the  injunction  of  the  court  not  to 
eat  or  drink,  contrary  to  the  wishes  of  the 
officer.  Several  of  the  jurors  wrote  notes 
and  dropped  them  from  the  windows  of  the 
jury  room,  and  received  notes  in  reply. 
Some  of  the  jurors  talked  from  the  windows 
to  persons  in  the  street  about  the  case,  and 
on  other  subjects,  but  what  was  said  did  not 
appear.  Servants  and  small  children  visited 
the  jury  room,  the  servants  in  order  to  carry 
food  and  clothing  to  the  jurors,  and  the 
children  to  see  their  fathers.  Held.,  that  al- 
though these  irregularities  miglit,  in  the 
discretion  of  the  presiding  judge,  have  been 
good  cause  for  setting  aside  the  verdict,  yet 
that  they  did  not  justify  the  Supreme  Court 
in  declaring,  as  matter  of  law,  that  there 
was  a  mistrial.  State  v.  Tilghman,  11  Ired. 
513. 

151.  Separation  of  jury  presumed  in- 
jurious. The  prisoner  need  not  show  that 
the  jury  were  subjected  to  improper  in- 
fluence during  their  separation.  It  is  suf- 
ficient if  they  might  have  been.  People 
V.  Backus,  5  Cal.  275;  People  v.  Lee,  17  lb. 
78;  People  v.  Bonney,  19  lb.  426.  Where 
part  of  the  jury,  after  separating  without  the 


permission  of  the  court,  remain  absent  for  a 
considerable  length  of  time,  it  will  be  pre- 
sumed that  they  were  tampered  with.  State 
V.  Fox,  Ga.  Decis.  pt.  1,  35;  State  v.  Peter, 
lb.  4G;  Hines  v.  State,  8  Humph.  597; 
State  V.  Prescott,  7  New  Hamp.  287;  Stone. 
V.  State,  4  Humph.  27  ;  Riley  v.  State,  9  lb. 
646.  In  Vermont,  in  case  of  separation  of  the 
jury,  the  burden  of  proof  to  show  injury,  is 
on  the  party  seeking  to  set  aside  the  verdict. 
State  V.  Camp,  23  Vt.  551. 

152.  Unexplained  separation  of  jury, 
fatal  to  verdict.  In  cases  of  a  higher  grade 
than  misdemeanor,  and  especially  in  capital 
cases,  a  separation  of  the  jury  without  the 
leave  of  the  court,  will  be  fatal  to  a  verdict 
against  the  jirisoner,  unless  it  be  shown 
affirmatively  by  the  prosecution,  that  no 
injury  to  the  prisoner  could  have  resulted 
therefrom.  Eastwood  v.  People,  3  Parker, 
25 ;  Cornelius  v.  State,  7  Eng.  782. 

153.  Where  during  a  trial  for  murder, 
which  lasted  several  days,  some  of  the  jury, 
after  they  had  retired  from  the  court  for  the 
night,  frequently  absented  themselves  from 
their  fellows,  without  being  under  the  charge 
of  an  officer,  and  remained  absent  for  fifteen 
or  twenty  minutes  at  a  time,  it  was  held 
cause  for  a  new  trial.  McLain  v.  State,  10 
Yerg.  241. 

154.  After  the  jury  had  retired  to  de- 
liberate on  a  trial  for  murder,  one  of  them 
separated  himself  from  his  fellows  without 
the  attendance  of  the  officer  having  the 
jury  in  charge.  The  juror  was  gone  a 
very  short  time,  and  it  was  not  shown  that 
he  communicated  with  any  one  while  absent. 
Held  ground  for  a  new  trial.  Maher  v. 
State,  3  Minn.  444. 

155.  On  a  trial  for  murder,  the  judge 
having  charged  the  jury,  gave  them,  a  recess 
of  five  minutes,  and  they  were  allowed  to 
leave  the  court  room  and  go  at  large  without 
being  in  charge  of  an  officer.  At  the  ex- 
piration of  the  time,  having  returned,  the 
sheriif  was  sworn  to  take  charge  of  them, 
and  they  retired  to  deliberate.  Held  error, 
and  that  the  prisoner  was  entitled  to  a  new 
trial.     State  v.  Parrant,  16  Minn.  178. 

156.  Where  on  a  trial  for  manslaughter, 
the  jury  separated,  and  several  persons  went 


NEW  TEIAL. 


455 


Grounds  for. 


Misconduct  of  Jury. 


into  the  jurors'  room  and  talked  with  them, 
it  was  held  cause  for  a  new  trial.  State  v. 
Sherbourne,  Dudley,  Ga.  28. 

157.  The  bailiff  in  whose  charge  the  JU17 
retired  to  consider  of  their  verdict,  was  a 
portion  of  the  time  away  from  the  building 
in  which  their  deliberations  were  held.  A 
person  held  communication  with  the  jury 
while  the  bailiff  was  absent.  Three  of  the 
jurors  separated  from  the  jury  unattended 
by  an  officer ;  and  one  of  them  was  seen 
talking  with  a  person.  The  bailiff  told  a 
person  how  the  jury  stood  while  they  were 
still  deliberating;  and  the  bystanders  gen- 
erally seemed  to  know  the  state  of  their 
deliberations.  Held  error  in  the  court  below 
to  refuse  to  grant  a  new  trial.  Madden  v. 
State,  1  Kansas,  340. 

158.  Separation  of  jury  by  consent. 
In  New  York,  the  trial  of  a  capital  case  is 
not  vitiated  by  the  separation  of  the  jury 
before  retiring  to  deliberate  on  their  verdict, 
with  the  consent  of  the  prisoner  and  per- 
mission of  the  court.  Stephens  v.  People, 
19  N.  T.  549 ;  affi-g  s.  c.  4  Parker,  396.  The 
contrary  has  been  held  in  Tennessee.  Wes- 
ley v.  State,  11  Humph.  503;  Wiley  v.  State, 
1  Swan,  256.  In  Pennsylvania,  where  the 
jury  on  a  trial  for  murder  were  allowed  to 
separate  by  consent  of  the  prisoner's  coun- 
sel, the  conviction  was  set  aside.  Peiffer  v. 
Com.  15  Penn.  St.  468. 

159.  In  Mississippi,  the  separation  of  the 
jury  during  the  trial  of  a  capital  case,  even 
by  permission  of  the  court,  either  with  or 
without  the  consent  of  the  prisoner,  except 
in  case  of  great  necessity,  or  the  separation 
of  any  of  the  jurors  from  their  fellows  dur- 
ing the  trial  without  being  attended  by  an 
officer,  will  vitiate  the  verdict.  Woods  v. 
State,  43  Miss.  364. 

160.  In  Louisiana,  the  separation  of  the 
jury  in  criminal  cases,  after  the  evidence  is 
closed  and  the  jury  charged  before  verdict, 
vitiates  the  verdict,  notwithstanding  such 
eeparation  was  with  the  consent  of  the  pris- 
oner or  his  counsel.  State  v.  Populus,  12 
La.  An.  710. 

161.  Jury  taking  refreshments.  If  the 
jury  take  refreshments  before  they  have 
agreed,  at  the  charge  of  the  prosecutor,  it 


will  be  ground  for  a  new  trial.  State  v. 
Sparrow,  3  Murphy,  487.  But  see  Com,  v. 
Roby,  12  Pick.  496. 

162.  Drinking  of  spirituous  liquors  by 
jury,  when  excusable.  In  ^Missouri  and 
Tennessee,  the  use  of  intoxicating  drinks  by 
jurors  while  in  the  discharge  of  their  duties 
will  not  be  ground  for  a  new  trial  unless 
used  to  excess,  or  supplied  from  an  improper 
source,  or  calculated  to  affect  the  verdict. 
State  V.  Upton,  20  Mo.  397 ;  Stone  v.  State, 
4  Humph.  27;  Rowe  v.  State,  11  lb.  491. 
Substantially  the  same  has  been  held  in  New 
Jersey,  Illinois  and  Nevada.  State  v.  Cucuel, 
31  N.  J.  349;  Davis  v.  People,  19  111.  74; 
State  V.  Jones,  7  Nev.  408. 

163.  After  the  charge  of  the  judge,  one 
of  the  jurors  in  ojien  court  stated  that  he 
had  been  unwell  for  several  days  and  was 
still  so,  and  that  it  was  impossible  for  him 
under  the  circumstances  to  confine  himself 
to  water  without  danger  to  his  health,  and 
he  asked  permission  for  such  spirits  as  might 
be  required  for  his  health  ;  to  which  request 
the  counsel  for  the  prisoner  consented  and 
the  indulgence  was  granted.  Held  not  a 
ground  for  setting  aside  the  verdict.  U.  S. 
V.  Gibert,  2  Sumner,  19. 

164.  During  a  trial  for  murder,  one  of 
the  jurors  not  in  the  habit  of  drinking  was 
ill,  and  took  for  medicinal  purposes  without 
medical  advice  some  brandy  and  blackberry 
balsam.  It  was  not  shown  or  claimed  that 
its  effects  were  intoxicating  or  other  than 
remedial,  or  that  the  occurrence  was  not 
known  to  the  defendant  and  his  counsel  at 
the  time  and  before  the  cause  was  submitted 
to  the  jury.  Held  not  a  ground  for  setting 
aside  the  verdict.  State  v.  Morphy,  33  Iowa, 
270. 

165.  After  the  jury  had  retired  to  deliber- 
ate, the  bailiff  having  charge  of  them  car- 
ried a  bottle  of  liquor  into  the  jury  room 
without  the  knowledge  or  permission  of  the 
court  to  a  sick  juror,  who  drank  of  the 
liquor.  It  did  not  appear  that  any  one  else 
drank,  and  the  liquor  was  in  the  jury  room 
a  very  short  time,  during  which  the  bailiff 
was  present.  Held  not  a  ground  for  a  new 
trial.     Pope  V.  State,  85  Miss.  121. 

168.  Where  it  appeared  that  one  of  the 


45G 


NEW  TRIAL. 


Grounds  for. 


Misconduct  of  Jury. 


Surprise. 


witnesses  for  the  prosecution  met  the  jury  at 
the  hotel  where  they  lodged,  and  invited 
them  in  the  presence  of  the  officer  who  had 
charge  of  them  to  drink  liquor  with  him,  it 
was  held  that  this  act,  though  one  for  which 
the  jurors  were  liable  to  a  fine,  was  not 
ground  for  a  new  trial.  Thompson  v.  Com. 
8  Gratt.  637. 

167.  Drinking  of  liquor  by  jury,  when 
fatal  to  verdict.  lu  New  York,  the  jury 
on  a  trial  for  murder  being  allowed  to  leave 
the  court  house  during  the  trial,  under 
the  charge  of  two  sworn  constables,  two  of 
them  separated  from  their  fellows,  went  to 
their  lodgings,  a  distance  of  thirty  rods, 
ate  cakes,  took  some  cakes  with  them  on 
their  return,  and  drank  spirituous  liquors, 
though  not  enough  to  affect  them,  and  one 
of  them  conversed  on  the  subject  of  the 
trial;  they  came  back,  heard  the  trial 
through,  and  found  the  prisoner  guilty. 
Held  cause  for  a  new  trial.  People  v.  Doug- 
lass, 4  Cow.  26. 

168.  In  New  Hampshire,  it  has  been  held 
that  the  use  of  stimulating  liquors  by  the 
jury  while  deliberating  on  their  verdict, 
without  first  showing  good  reason  for  such 
use  and  getting  leave  of  the  court,  is  good 
cause  for  setting  aside  a  conviction,  whether 
the  use  was  intemperate  or  otherwise.  State 
V.  BuUard,  16  New  Hamp.  139. 

169.  The  sej^aration  of  a  juror  fi'om  his 
fellows,  after  the  case  has  been  finally  sub- 
mitted and  before  they  have  agreed  upon  a 
verdict,  for  the  purpose  of  obtaining  and 
drinking  intoxicating  liquors,  when  not 
shown  to  be  excusable,  will  entitle  the  pris- 
oner to  a  new  trial.  Weis  v.  State,  22  Ohio, 
N.  S.  486. 

170.  After  the  jury  on  a  trial  for  murder 
had  retired  to  deliberate,  the  officer  who  had 
them  in  charge  went  to  a  liquor  and  billiard 
saloon  with  two  of  them,  and  asking  the 
keeper  of  the  saloon  if  he  could  not  "  fix  up 
something  for  these  jurors  for  the  diarrhoea," 
procured  for  each  of  them  "a  drink  of  brandy, 
ginger  wine,  nutmeg  and  sugar,"  which  they 
drank,  and  which  was  paid  for  by  one  of 
them.  It  did  not  appear  where  the  other 
jurors  were  while  the  two  were  in  the  saloon 
with  the  officer,  and  there  was  no  attempt 


to  show  that  the  jurors  were  really  suflFering 
with  diarrhoea,  how  much  liquor  they  drank, 
or  what  efi"ect  it  had  ujwn  them.  Held 
ground  for  a  new  trial.  Davis  v.  State,  35 
Ind.  496. 

171.  On  a  prosecution  for  adultery,  after 
the  jury  had  retired  in  charge  of  the  bailifl^, 
two  of  them,  each  separately  at  different 
times,  were  permitted  to  separate  from  the 
balance  of  the  jury,  and  during  their  absence 
from  the  jury  room,  which  was  for  a  neces- 
sary purpose,  one  of  such  jurors  went  to  a 
grocery  store  to  buy  tobacco,  and  while 
there  procured  and  drank  a  glass  of  ale,  and 
then  returned  with  the  bailiff  to  the  jury 
room.  Held  ground  for  a  new  trial.  State 
V.  Baldy,  17  Iowa,  39. 

172.  Evidence.  A  new  trial  will  not  be 
granted  upon  the  reported  observations  of 
jurors  as  to  their  misconduct,  hearsay  evi- 
dence not  being  admissible  on  an  application 
to  set  aside  the  verdict.  Stone  v.  State,  4 
Humph.  27. 

Qi)  Surprise. 

173.  Disqualification  of  juror.  Where 
the  objection  to  a  juror  would  be  sufficient 
cause  of  challenge  to  the  favor  if  discovered 
before  trial,  it  will  furnish  cause  for  a  new 
trial  if  not  discovered  until  after  verdict. 
Anderson  v.  State,  14  Ga.  709 ;  Monroe  v. 
State,  5  lb.  85. 

174.  But  although  it  appear  that  the 
prisoner  had  good  cause  of  challenge,  which 
he  did  not  avail  himself  of  in  consequence 
of  ignorance  of  the  facts,  yet  if  no  injustice 
has  been  done  by  the  verdict,  he  is  not  en- 
titled to  a  new  trial.  State  v.  Howard,  17 
New  Hamp.  171. 

175.  The  fact  that  a  juror  is  an  alien, 
though  cause  of  challenge,  is  not  ground  for 
a  new  trial,  notwithstanding  it  was  unknown 
to  the  prisoner  or  his  counsel  until  after  the 
verdict.  Presbury  v.  Com.  9  Dana,  203; 
contra,  Seal  v.  State,  13  Smed.  &  Marsh. 
286. 

176.  "Where  a  juror  before  trial  made  the 
prisoner  believe  that  he  was  in  his  favor,  for 
which  reason  the  prisoner  did  not  exercise 
his  right  of  challenge  for  cause,  which  he 
would  have  done  had  the  deceptive  conduct 


NEW  TRIAL. 


457 


Grounds  for. 


Surprise. 


of  the  juror  not  misled  him,  it  was  held  not 
ground  for  a  writ  of  error.  Poore  v.  Com. 
2  Va.  Cas.  474 

177.  Names  of  witnesses  not  on  indict- 
ment. Where  the  prisoner  has  a  right  to 
have  the  names  of  the  witnesses  for  the 
prosecution  written  on  the  indictment,  to 
enable  him  to  prejiare  for  his  defense,  the 
objection  that  this  requirement  was  neglect- 
ed, comes  too  late  after  verdict,  and  is  not 
therefore  ground  for  a  new  trial.  Ray  v. 
State,  1  Iowa,  316. 

178.  Artifice  or  management.  When  the 
])urposes  of  justice  have  been  perverted  to 
Ihe  injury  of  the  accused,  by  -practices  deJw?'s 
the  trial,  as  by  j^rocuring  improper  persons 
to  sit  ujjon  the  jury,  by  management  on  the 
part  of  any  person  which  could  not  be  guard- 
ed against  by  ordinary  care  and  attention, 
or  the  like,  or  by  an  accident  without  the 
fault  of  the  prisoner,  the  same  court  in  which 
the  miscarriage  took  place  may  set  aside  the 
verdict  as  for  a  mistrial.  Willis  v.  People, 
32  N.  Y.  715. 

179.  Where  a  person  indicted  for  horse 
stealing,  was  induced  to  go  to  trial  by  the 
artifice  of  concealing  from  him  the  fact  that 
certain  witnesses  for  the  prosecution  were 
present,  and  making  him  believe  that  they 
were  not  there  when  in  fact  they  were,  and 
had  been  concealed  by  the  attorney  for 
the  State,  it  was  held  that  the  prisoner  was 
entitled  to  a  new  trial.  Curtis  v.  State,  6 
Cold.  Tenn.  9. 

180.  Omission  or  mistake.  Although  a 
new  trial  may  be  granted  for  surprise,  yet 
after  the  prisoner  has  submitted  his  case,  he 
cannot  upon  discovering  that  the  verdict  is 
against  him,  ask  the  court  to  relieve  him 
from  the  consequences  of  a  mistake  or  omis- 
sion, by  granting  him  a  new  trial.  People 
V.  Mack,  2  Parker,  673. 

181.  Insufficient  preparation,  or  a  mistake 
in  conducting  the  trial,  or  the  want  of  such 
evidence  or  defense  as  it  was  in  the  prison- 
er's power  to  have  produced,  or  a  discovery 
of  the  incompetency  of  the  witnesses  exam- 
ined, are  not  grounds  for  setting  aside  the 
verdict.  Com.  v.  Benesh,  Thach.Crim.  Cas. 
684. 

182.  A   new    trial    will    not    be   granted 


because  the  public  prosecutor,  by  mistake, 
withholds  in  his  hands  papers  important  to 
the  defendant,  unless  the  latter  use  diligence 
to  obtain  them.  People  v.  Vermilyea,  7 
Cow.  369. 

183.  It  is  doubtful  whether  surprise  found 
ed  upon  mistake  of  law,  is  ground  for  a  new 
trial.  It  cannot  be  when  it  arises  from  the 
party's  own  negligence.  That  the  defendant 
or  his  counsel  were  guilty  of  laches  in  pre- 
paring the  cause,  is  not  a  ground  for  dis- 
turbing the  verdict.  People  v.  O'Brien,  4 
Parker,  203. 

184.  Neglect  to  obtain  witness.  Where 
on  a  trial  for  forgery,  the  prisoner  neglected 
to  obtain  witnesses  in  rebuttal  in  conse- 
quence of  counsel  advising  him  that  certain 
testimony  for  the  i^rosecution  which  was 
allowed,  would  not  be  received,  it  was  held 
that  he  was  entitled  to  a  new  trial  on  the 
ground  of  surprise.  State  v.  Williams,  27 
Vt.  724. 

135.  Where  it  was  shown  that  the  prison- 
er having  been  informed  before  the  trial, 
that  a  certain  jjerson  would  be  a  material 
witness  in  his  favor,  interrogated  him  and 
was  told  by  him  that  he  knew  nothing 
about  the  case,  but  that  after  conviction  the 
prisoner  learned  that  this  person  could  tes- 
tify to  facts  which  would  be  likely  to  pro- 
duce a  different  verdict,  it  was  held  ground 
for  anew  trial.     Phillips  v.  State,  33  Ga.281. 

186.  Absence  of  witness.  On  a  trial  for 
murder,  the  jirisoner's  counsel  stated  that 
they  would  be  able  to  procure  the  attend- 
ance of  a  material  witness  for  the  defense, 
who  was  absent,  on  the  following  day.  The 
trial  accordingly  proceeded,  but  the  absent 
witness  was  not  obtained,  though  nearly 
everything  was  proved  which  the  defendant 
expected  to  show  by  the  absent  witness. 
Beld  not  ground  for  a  new  trial.  Young  v. 
Com.  4  Gratt.  550. 

187.  In  the  same  case,  a  material  witness 
for  the  defense,  who  was  present  at  the  com- 
mencement of  the  trial  was  taken  ill  before 
the  evidence  for  the  prosecution  was  closed, 
and  did  not  attend  and  testify.  But  what 
the  absent  witness  was  expected  to  swear  to 
was  shown  by  other  witnesses.  Held  no 
ground  for  a  new  trial.     lb. 


458 


NEW  TRIAL. 


Grounds  for. 


Surprise. 


Newly  Discovered  Evidence. 


188.  Intoxication  of  witness.  On  a  trial 
for  murder,  the  defense  having  introduced 
a  witness  who  was  so  much  intoxicated  as 
not  to  be  capable  of  understanding  the  ob- 
ligations of  an  oath,  the  court  would  not 
permit  him  to  be  sworn,  but  told  the  de- 
fense that  they  might  recall  the  witness 
when  he  was  sober.  The  defense  examined 
other  witnesses,  but  did  not  recall  this  one. 
Held  that  the  granting  or  refusing  a  new 
trial  on  this  ground  w'as  in  the  discretion  of 
the  court.     State  v.  Underwood,  6  Ired.  96. 

189.  Witness  leaving  court.  Where  a 
witness,  subpoenaed  by  the  prosecution,  but 
not  examined,  leaves  the  court,  it  is  not 
cause  for  a  new  trial  on  behalf  of  the  pris- 
oner. If  the  testimony  of  the  witness  was 
material  to  the  defense,  it  should  have 
subpoenaed  him.  State  v.  Blennerhassett, 
Walker,  7. 

190.  Perjury  of  witness.  A  new  trial 
will  not  be  granted  to  enable  a  party  to 
impeach  a  witness  who  testified  on  a  former 
trial.  Com.  v.  White,  5  Mass.  261 ;  State  v. 
Henry,  E.  M.  Charlt.  505  ;  Herber  v.  State, 
7  Texas,  69  ;  Porter  v.  State,  2  Carter,  435 ; 
Deer  v.  State,  14  Mo,  348.  This  rule  is 
subject  to  rare  exceptions.  Thompson's 
Case,  8  Gratt.  637. 

191.  Incapacity  of  interpreter.  The 
incompetency  of  an  interjDreter  employed 
by  the  court  to  interpret  the  evidence  of 
witnesses  testifying  in  a  language  not  un- 
derstood by  the  court,  counsel,  or  jury,  is  not 
ground  for  a  new  trial,  the  objection  coming 
too  late  after  verdict.  State  v.  Lemodelio, 
23  La.  An.  16. 

192.  Intoxication  of  defendant.  Where, 
after  conviction  on  a  charge  of  felony,  it 
was  proved  that  the  prisoner  during  the 
trial  was  too  drunk  to  understand  the 
nature  of  the  proceedings,  it  Avas  held 
ground  for  a  new  trial.  Taffe  v.  State,  23 
Ark.  34. 

193.  Unexpected  evidence.  It  being- 
proved  on  a  trial  for  murder  that  there  was 
blood  on  the  prisoner's  clothes,  after  convic- 
tion he  filed  his  afiidavit  staling  that  he  was 
surprised  by  this  proof;  that  he  did  not 
know  that  it  would  be  jiroduced  against 
him,  or  know  that  he  could  explain  it  until 


after  the  trial.  Held  not  a  ground  for  ar- 
resting the  sentence  of  the  court  and  grant- 
ing a  new  trial.  Gilbert  v.  State,  7  Humph. 
524. 

194.  The  defendant,  having  been  convicted 
of  obstructing  a  highway,  moved  for  a  new 
trial  on  the  ground  that  he  was  surprised  by 
proof  that  the  point  of  obstruction  was 
different  th^n  he  had  supjjosed,  for  which 
he  was  not  prepared  to  defend.  Held  that 
he  was  not  entitled  to  the  relief  asked. 
Wholford  V.  Com.  4  Gratt.  553. 

195.  Improper  admission  by  counsel.  A. 
and  B.,  being  confined  in  jail  on  a  charge  of 
burglary,  made  a  deadly  assault  upon  the 
jailer  and  his  assistants.  Having  been  tried 
and  convicted  for  this  ofiense,  they  moved 
for  a  new  trial  on  the  ground  that  their 
commitment  to  jail  was  irreguhu  and  void, 
and  that  their  counsel,  supposing  it  to  be 
valid,  in  order  to  avoid  prejudicing  the 
minds  of  the  jury  by  showing  the  cause  of 
the  commitment,  admitted  the  legality  of 
the  imprisonment,  by  reason  whereof  they 
were  found  guilty.  Held  that  they  were  not 
entitled  to  the  relief  asked.  Lester  v.  State, 
11  Conn.  415.  ^i 

{i)  Newly  discovered  evidence. 

196.  "When  ground  for  relief.  To  render 
newly  discovered  evidence  cause  for  a  new 
trial,  the  applicant  must  show:  1st,  that  the 
evidence  has  come  to  his  knowledge  since 
the  trial;  2d,  that  it  was  not  owing  to  the 
want  of  due  diligence  that  it  did  not  come 
sooner;  3d,  that  it  is  so  material  that  it 
would  probably  produce  a  difi"erent  result 
if  the  new  trial  were  granted ;  4th,  that  it  is 
not  cumulative  ;  5th,  that  the  afiidavit  of  the 
witness  himself  should  be  produced  or  its 
absence  accounted  for;  6th,  that  the  object 
of  the  testimony  is  not  merely  to  impeach 
the  character  or  credit  of  a  witness.  State 
V.  Carr,  1  Foster,  106  ;  Lester  v.  State,  11 
Conn.  415;  Holman  v.  State,  8  Eng.  105; 
Pleasant  v.  State,  2  lb.  300 ;  Ditto  v.  Com. 
2  Bibb,  17;  People  v.  Vermilyea,  7  Cow. 
369 ;  Thompson's  Case,  8  Gratt.  637 ;  White 
V.  State,  17  Ark.  404  ;  Berry  v.  State,  10  Ga. 
511 ;  State  v.  McLaughlin,  27  Mo.  Ill ;  State 
V.  Ray,    53  lb.    345.      In  California,  newly 


NEW  TRIAL. 


459 


Grounds  for. 


Newly  Discovered  Evidence. 


discovered  evidence  is  not  ground  for  a  new 
trial  under  the  statute  (Wood's  Dig.  304, 
§  440).     People  v.  Bernstein,  18  Cal.  699. 

197.  Must  have  been  unknown,  and  no 
want  of  diligence.  Newly  discovered  evi- 
dence is  a  ground  for  a  new  trial  when  it 
was  not  known  to  the  party  at  the  time  of 
the  trial,  and  it  was  owing  to  no  want  of 
diligence  that  it  was  not  known  and  pro- 
duced. Wise  V.  State,  24  Ga.  31 ;  Milner  v. 
State,  80  lb.  137. 

198.  A.  having  been  arrested  and  put  in 
jail  on  a  charge  of  assault  with  intent  to 
murder,  which  was  alleged  to  have  occurred 
in  a  fight  between  a  foreman  and  employees, 
the  attorney  of  A.,  upon  asking  those  who 
were  present,  was  told  that  they  did  not 
know  what  part  A.  took  in  the  affair.  But 
after  conviction,  they  stated  that  they  were 
ready  to  testify  that  A.  did  not  make  the 
assault.  Held  ground  for  a  new  trial. 
Thomas  v.  State,  53  Ga.  509. 

199.  Where  the  prosecution  had  a  witness 
testify  who  had  been  convicted  of  an  in- 
famous crime,  and  no  objection  was  made, 
it  was  held  that  a  new  trial  could  not  be 
granted  the  defendant  upon  discovering  the 
incompetency  of  the  witness  after  conviction. 
Com.  V.  Green,  17  Mass.  515. 

200.  Where  the  newly  discovered  evi- 
dence was  a  confession  of  the  prisoner's  wife 
to  third  persons,  during  the  trial,  that  she 
committed  the  crime,  and  that  her  husband 
had  no  knowledge  of  it,  the  court  refused  a 
new  trial.     State  v.  J.  W.  1  Tyler,  417. 

201.  Must  be  ma,terial.  Newly  discov- 
ered evidence  which  would  not  be  likely  to 
produce  a  different  result,  is  not  ground  for 
a  new  trial.  Jones  v.  State,  48  Ga.  163 ;  s.  c. 
2  Green's  Grim.  Reps.  586, 

202.  After  a  conviction  of  manslaughter,  a 
new  trial  will  not  be  granted  on  the  ground 
that  since  the  trial  it  has  been  discovered 
that  the  deceased,  some  weeks  previous  to 
the  homicide,  bought  a  pistol,  saying  that 
he  intended  to  kill  the  accused,  there  being 
no  evidence  of  notice  to  the  accused  of  the 
threats.     Carr  v.  State,  14  Ga.  358. 

203.  On  the  trial  of  an  indictment  for  ob- 
taining goods  by  false  pretenses,  the  prose- 
cution introduced  in  evidence  a  book  pur- 


porting to  contain  an  entity  of  the  false 
statements  of  the  defendant,  made  in  the 
book  at  the  time  the  goods  were  obtained. 
After  the  conviction  of  the  defendant,  it  was 
discovered  that  the  entry  in  the  book  was 
made  some  time  after  the  obtaining  of  the 
goods.  Held  that  the  discrepancy  was  not 
ground  for  a  new  trial.  Com.  v.  Benesh, 
Thach.  Grim.  Cas,  684. 

204.  Where  after  conviction  of  stealing 
cattle,  it  appeared  that  the  defendant  took 
the  cattle  under  a  color  of  title,  a  new  trial 
was  granted.  State  v.  Simons,  Dudley,  Ga. 
27. 

205.  Where  after  conviction  for  murder, 
it  was  ascertained  that  a  written  confession 
which  was  given  in  evidence  against  the  de- 
fendant, did  not  contain  the  entire  confes- 
sion, it  was  held  that  the  defendant  was  en- 
titled to  a  new  trial  on  the  ground  of  newly 
discovered  evidence.  Powell  v.  State,  37 
Texas,  348. 

206.  To  prove  alibi.  The  propriety  of 
granting  a  new  trial  for  the  purpose  of  let- 
ting in  the  defense  of  an  alibi^  depends  so 
much  upon  the  circumstances  of  the  case, 
that  a  court  of  review  will  rarely  interfere 
with  the  decision  of  the  court  below. 
Thompson  v.  State,  5  Humph.  138. 

207.  Must  not  be  cumulative.  A  new 
trial  will  not  be  granted  on  account  of  newly 
discovered  evidence  which  is  merely  cumu- 
lative. Roberts  v.  State,  3  Kelly,  310 ;  Com. 
V.  Flanagan,  7  Watts  &  Serg.  415 ;  Com.  v. 
Murray,  2  Ashm.  41 ;  Com.  v.  Williams,  lb. 
69 ;  Giles  v.  State,  6  Ga.  276 ;  Williams  v. 
People,  45  Barb.  201 ;  People  v.  McDonnell, 
47  Cal.  134;  s.  c.  2  Green's  Crim,  Reps.  441. 

208.  To  impeach  witness.  The  discov- 
ery of  such  new  evidence  as  would  only  im- 
peach the  evidence  of  a  witness  on  the 
former  trial,  is  not  a  sufficient  ground  for  a 
new  trial.  Bland  v.  State,  2  Carter,  608*, 
State  V.  Henry,  R.  M.  Charlt.  505  ;  Herber  v. 
State,  7  Texas,  69;  Leving  v.  State,  13  Ga. 
513;  Porter  v.  State,  2  Carter,  435;  Com.  v. 
Waite,  5  Mass.  261;  Deer  v.  State,  14  Mo. 
348;  Wright  v.  State,  34  Ga.  110;  Hoye  v. 
State,  39  lb.  718. 

209.  Where  a  material  witness  had  stated 
before  the  trial,  that  he  would    hang  the 


460 


NEW  TKIAL. 


Grounds  for. 


Irregularities  in  the  Care  or  Conduct  of  the  Jury. 


prisoner  by  his  testimony,  if  he  could,  and 
the  prisoner  knew  nothing  of  the  declaration 
until  after  the  trial,  it  was  held  that  this 
was  no  cause  for  staying  sentence.  Com.  v. 
Drew,  4  Mass.  391. 

(j)  Irregularities  in  the  care  or  conduct  of  the 
jury. 

210.  Jury  not  in  care  of  officer.  In  Mis- 
sissippi, where  the  jury  during  a  portion  of 
the  trial,  and  after  they  had  retired,  were 
not  under  the  charge  of  a  sworn  oflBcer,  it 
"was  held  ground  for  a  new  trial.  McCann  v. 
State,  9  Smed.  &  Marsh.  465. 

211.  In  Tennessee,  where  the  jury  retired 
for  deliberation  on  their  verdict,  to  a  room 
of  the  building  in  which  the  court  sat,  with- 
out an  officer,  and  it  did  not  appear  that 
they  improperly  separated,  or  held  commu- 
nication with  any  person  not  of  their  body, 
it  was  held  that  there  was  no  cause  for  a  new 
trial.     Jarnagin  v.  State,  10  Terg.  529. 

212.  Change  of  officer.  The  jury  retired 
to  deliberate  with  an  officer  who  had  been 
sworn  to  take  charge  of  them ;  but  before 
the  court  adjourned  a  second  officer  was 
sworn  in  court  to  attend  ujjon  them ;  and 
after  the  court  adjourned,  another  officer  was 
sworn  for  the  same  service.  Held  not  ground 
for  a  new  trial.  Com.  v.  Jenkins,  Thach. 
Crim.  Cas.  118. 

213.  Papers  handed  to  jury  by  officer. 
Where  on  a  trial  for  murder  the  sherift',  after 
the  jury  had  retired  to  deliberate,  handed  to 
them  loose  papers  purporting  to  be  evidence, 
it  was  held  that  the  refusal  of  the  court  be- 
low to  grant  a  new  trial  was  error.  Pound 
V.  State,  43  Ga.  88. 

214.  But  where  after  the  jury  had  retired 
to  deliberate  on  a  trial  for  murder,  a  con- 
stable, upon  the  request  of  one  of  their  num- 
ber, handed  him  a  paper  on  which  was 
marked  the  several  punishments  fixed  by 
law  for  the  diflferent  degrees  of  manslaugh- 
ter, it  was  held  not  a  ground  for  a  new  trial, 
it  appearing  that  the  prisoner  had  not  been 
prejudiced  thereby.  Wilson  v.  People,  4 
Parker,  619. 

215.  Jury  taking  out  documents.  Where 
the  jury  took  to  their  room  two  papers  which 
were  in  evidence,  inadvertently  without  the 


permission  of  the  court,  but  through  no  im- 
proper intervention  of  any  one,  and  it  was 
not  shown  what,  or  whether  any  use  of  them 
was  made  by  the  jury  in  their  deliberations, 
it  was  held  not  a  ground  for  a  new  trial. 
Bersch  v.  State,  13  Ind.  434, 

216.  Examination  of  statutes.  On  a 
trial  for  murder,  after  the  jury  had  retired, 
one  of  their  number  inquired  of  a  constable 
who  was  in  attendance  whether  the  jury 
could  not  bring  in  a  verdict  of  manslaughter, 
saying  that  if  they  could  do  so,  the  jury 
would  agree.  He  said  he  thought  they 
could,  but  added  that  they  had  better  con- 
sult their  foreman,  who  being  a  justice  of 
the  peace,  would  probably  know.  The 
Revised  Statutes  were  then  sent  for  by  the 
jury  and  examined  in  relation  to  murder  and 
manslaughter.  Held  that  this  was  sufficient 
to  vitiate  the  verdict,  unless  it  appeared  be- 
yond all  reasonable  doubt  that  no  injury  had 
resulted  to  the  prisoner  therefrom.  People 
V.  Hartung,  4  Parker,  256. 

217.  Reading  newspapers.  Suffering 
jurors  to  have  daily  access  to  newspapers 
containing  imperfect  accounts  of  the  trial 
being  had  before  them,  with  comments 
upon  the  person  and  character  of  those 
connected  with  it,  is  ground  for  setting  aside 
the  verdict.  Walker  v.  State,  37  Texas, 
366. 

218.  Where  it  appeared  that  after  the 
jury  were  impaneled  on  a  trial  for  murder, 
they  saw  newspaper  accounts  of  the  testi- 
mony, but  that  such  accounts  had  no  influ- 
ence on  their  minds  in  finding  the  verdict, 
it  was  held  not  to  be  sufficient  ground  for  a 
new  trial.  U.  S.  v.  Reid,  12  How.  U.  S. 
361. 

219.  And  where  the  jury,  while  being  kept 
together  in  a  capital  case,  were  allowed  by 
the  officer  in  charge  of  them  to  read  the 
newspapers,  the  officer  first  inspecting  tlie 
papers  and  cutting  out  everything  which 
related  to  the  trial,  it  was  held  that  there 
was  no  cause  for  setting  aside  the  verdict. 
U.  S.  V.  Gibert,  2  Sumner,  10. 

220.  Receiving  additional  evidence. 
Where,  after  a  cause  has  been  submitted, 
the  jury  receive  additional  evidence  which 
is  material,  it  will  be  fatal  to  the  verdict. 


NEW  TRIAL. 


401 


Grounds  for.     Irregularities  in  the  Care  of  Jury.       Improper  Rendering  of  Verdict. 


Hudson  V.  State,  9  Yerg.  408 ;  Booby  v.  State, 
4  lb.  111. 

221.  Where,  on  a  trial  for  murder,  after 
the  evidence  was  all  in,  several  of  the  jury 
while  taking  exercise,  with  the  consent  of 
the  court  accompanied  by  an  ofBcer,  visited 
and  examined  the  locality  of  tbe  homicide, 
it  was  held  good  ground  for  a  new  trial. 
Eastwood  V.  People,  3  Parker,  25.  See  ante, 
sui.  94. 

222.  On  the  trial  of  an  indictment  for 
burglary  and  larceny,  the  jury  came  into 
court  after  they  had  retired,  and  asked  for 
an  explanation  from  a  witness,  whereupon 
the  witness  stated  a  fact  to  which  he  had 
not  testified  before,  but  the  jury  were  in- 
structed by  the  court  not  to  regard  the 
additional  testimony.  Held  not  a  ground 
for  a  new  trial.     Hudson  v.  State,  s^vpra. 

223.  Where,  on  a  trial  for  murder,  after 
the  prosecution  had  rested,  one  of  the  jurors 
at  the  adjournment  of  the  court,  took  up  and 
examined  the  skull  of  the  murdered  man, 
which  was  on  the  district  attorney's  table, it 
was  held  not  a  ground  for  a  new  trial. 
Wilson  V.  People,  4  Parker,  619. 

224.  Juror  communicating  information 
to  his  fellows.  Where,  on  a  trial  for  felony, 
the  evidence  on  a  material  point  is  conflict- 
ing, and  after  the  jury  retire  to  deliberate, 
one  of  their  number  makes  statements  not 
previously  disclosed,  conducing  in  some 
degree  to  the  determination  of  the  contro- 
verted point  against  the  jorisoner,  the  verdict 
will  be  set  aside.  In  such  case,  the  burden 
is  not  upon  the  prisoner  to  show  that  he  has 
been  prejudiced.  It  is  sufficient  that  he  may 
have  been.     Sam  v.  State,  1  Swan,  61. 

225.  Where,  after  the  jury  had  retired  to 
deliberate,  one  of  their  number  stated  to  the 
others  that  the  defendant  had  stolen  a  hog, 
which  was  not  proved  on  the  trial,  but  which 
the  jury  regarded  as  evidence,  it  was  held 
that  the  defendant  was  entitled  to  a  new 
trial.     Booby  v.  State,  4  Yerg.  111. 

226.  Where  one  of  the  jurors  told  the 
others,  after  tliey  had  retired,  that  he  had 
heard  the  principal  witness  in  the  case  ex- 
amined before  the  grand  jury,  and  that  the 
witness  then  made  the  same  statement  that 
he  made  at  the  trial,  and  it  appeared  that 


such  declarations  of  the  juror  had  a  power- 
ful influence  on  them  in  finding  the  prisoner 
guilty,  it  was  held  ground  for  a  new  trial. 
Donston  v.  State,  6  Humph.  375. 

(h)  Improper  rendering  of  verdict. 

227.  Resorting  to  calculation.  Where 
the  jury,  in  order  to  agree  on  the  period  of 
imprisonment,  arranged  that  each  juror 
should  write  his  figures,  the  whole  be  added, 
the  amount  divided  by  twelve,  and  the  quo- 
tient be  their  finding,  it  was  held  ground  for 
a  new  trial.  Crabtree  v.  State,  3  Sneed, 
303. 

228.  But  where,  on  a  trial  for  murder,  the 
jury  having  agreed  as  to  the  guilt  of  the 
prisoner,  and  the  only  question  being  as  to 
the  punishment,  the  result  was  arrived  at  by 
each  juror  setting  down  the  number  of  years 
he  thought  the  ofiense  merited,  adding 
these  numbers,  dividing  the  aggregate  by 
twelve,  and  adopting  the  quotient  for  their 
verdict,  it  was  held  not  cause  for  a  new  trial. 
Thompson  v.  Com.  8  Gratt.  637. 

229.  Disclosing  verdict.  The  fact  that 
the  jury  disclosed  their  verdict  by  order  of 
the  court,  is  not  ground  for  a  new  trial,  as 
it  might  be  if  disclosed  without  such  order. 
State  V.  Bryant,  21  Vt.  479. 

230.  Absence  of  prisoner.  The  fact  that 
the  prisoner's  counsel  are  present  in  court 
during  the  trial,  and  at  the  return  of  the 
verdict,  and  do  not  raise  any  objection  on 
account  of  his  absence,  does  not  constitute 
a  waiver  of  his  right  to  be  present.  Rose  v. 
State,  20  Ohio,  31. 

231.  If  after  conviction  of  assault  with 
intent  to  commit  murder,  the  record  does 
not  show  that  the  prisoner  was  present  in 
court  when  the  verdict  was  delivered,  anew 
trial  will  be  granted.  But  if  the  irregularity 
consists  in  pronouncing  sentence  in  the 
prisoner's  absence,  the  judgment  will  be 
reversed,  and  the  cause  remanded,  with 
instructions  to  pronounce  judgment  in  ac- 
cordance with  law.  Cole  v.  State,  5  Eng. 
318.     And  see  Rose  v.  State,  sujjva. 

232.  Jury  not  polled.  In  South  Carolina, 
where  after  conviction  of  murder,  the  judge 
refused  the  prisoner's  application  to  have 
the  jury  polled,  it  was  held  not  a  ground  for 


462 


NEW   TRIAL. 


Grounds  for. 


Improper  Rendering  of  Verdict. 


Wrong  Verdict. 


a  new  trial.     State  v.  Wise,  7  Eich.  413 ; 
State  V.  Whitman,  14  lb.  113. 

233.  Jury  not  acquiescing  in  verdict. 
On  the  trial  of  an  indictment  for  an  affray, 
the  jury  having  intimated  their  intention  to 
acquit  one  of  the  defendants,  the  court  told 
them  that  if  they  believed  the  evidence, 
both  of  the  defendants  were  guilty;  where- 
upon the  prosecuting  attorney  directed  the 
clerk  to  enter  a  verdict  of  guilty  as  to  both, 
which  was  done,  and  the  jury,  being  asked 
if  that  was  their  verdict,  made  no  direct 
assent,  but  by  a  nod  from  each  of  them. 
Held  that  there  must  be  a  new  trial.  State 
V.  Shule,  10  Ired.  153. 

234.  One  of  the  jurors  filed  his  affidavit, 
in  which  he  stated  that  he  believed  that  the 
prisoner  was  not  guilty;  that  he  was  made 
to  believe  by  some  of  the  jurors,  that  there 
were  fatal  defects  in  some  part  of  the  pro- 
ceedings which  would  prevent  the  prisoner 
from  being  sent  to  the  penitentiary;  that 
they  would  find  a  verdict  of  guilty,  and 
recommend  him  to  the,  mercy  of  the  court, 
and  that  the  recommendation  being  sent  to 
the  Governor,  would  procure  his  pardon. 
Held  that  there  must  be  a  new  trial.  Coch- 
ran V.  State,  7  Humph.  544. 

235.  Where  on  the  trial  of  an  indictment 
for  grand  larceny,  it  was  the  duty  of  the 
jury  to  fix  the  term  of  imprisonment,  which 
they  neglected  to  do,  and  were  discharged 
but  were  all  recalled  by  the  judge  before 
leaving  the  court  room,  excepting  one,  who 
had  gone  away  a  short  distance  with  the 
deputy  sheriff",  it  was  held  that  the  verdict 
must  be  set  aside.   Mill's  Case,  7  Leigh,  751. 

236.  Where  after  conviction  for  murder, 
one  of  the  jurors  said  that  he  did  not  agree 
to  find  the  prisoner  guilty  of  murder,  but 
only  of  manslaughter,  and  through  mistake 
of  his  duty  believed  that  he  must  coincide 
with  the  other  jurors,  it  was  held  not 
ground  for  a  new  trial.  Com.  v.  Drew,  4 
Mass.  391. 

237.  Upon  the  jury  being  polled  on  a  trial 
for  murder,  one  of  them  stated  that  when  he 
first  went  out,  he  was  not  in  favor  of  finding 
the  prisoner  guilty,  but  that  a  majority  of 
the  jury  being  against  him,  he  agreed  to  the 
verdict  as  delivered  by  the  foreman.    When 


again  asked  "What  is  your  verdict  now?  " 
he  replied,  "I  find  the  prisoner  guilty." 
Held  no  ground  for  setting  aside  the  verdict. 
State  V.  Godwin,  5  Ired.  401. 

(?)    Wrong  verdict. 

238.  Insufficient  for  judgment.  Although 
when  a  verdict  does  not  pronounce  on  the 
facts  necessary  to  enable  the  court  to  give 
judgment,  the  jury  should  be  directed  to 
retire  for  further  deliberation,  yet  if  the 
court  docs  not  do  this,  it  does  not  entitle  the 
defendant  to  a  discharge,  but  a  new  trial 
may  be  granted.  State  v.  Arthur,  21  Iowa, 
333. 

239.  Under  an  indictment  containing  a 
count  for  selling  liquor  by  measure  in  quan- 
tities less  than  five  gallons,  and  also  a  count 
for  selling  liquor  by  the  glass  to  be  drank 
upon  the  premises,  without  having  a  license 
therefor,  the  proof  was  of  a  sale  of  less  than 
five  gallons  not  drank  on  the  premises,  and 
a  sale  of  one  glass  on  Sunday,  drank  upon 
the  premises,  and  a  general  verdict  of  guilty. 
It  was  held  that  although  there  was  suffi- 
cient evidence  to  have  warranted  the  jury  in 
convicting  the  defendant  under  the  first 
count,  yet  as  their  verdict  was  general,  and 
the  court  could  not  say  that  it  was  based  on 
that  offense,  there  must  be  a  new  trial.  Peo- 
ple V.  Brown,  6  Parker,  66G. 

240.  Against  law  or  evidence.  Where 
the  jury  render  a  verdict  of  guilty,  mani- 
festly against  law  and  evidence,  a  new  trial 
will  be  granted.  State  v.  Sims,  Dudley, 
Ga.  313;  State  v.  Jones,  3  Bay,  530;  State 
V.  Powers,  Ga.  Decis.pt.  1,  150;  U.  S.  v. 
Duval,  Gilpin,  356 ;  State  v.  Rabon,  4  Rich. 
260;  Ball's  Case,  8  Leigh,  726;  State  v. 
Spenlove,  Riley,  269;  Grayson's  Case,  6 
Graft.  712. 

241.  Where  there  is  a  great  preponderance 
of  evidence  against  the  verdict,  a  new  trial 
will  be  granted.  Keithler  v.  State,  10  Smed. 
&  Marsh.  193 ;  Cochran  v.  State,  7  Humph. 
544 ;  Leake  v.  State,  10  lb.  144 ;  Bedford  v. 
State,  5  lb.  552 ;  State  v.  Lyon,  12  Conn. 
487. 

242.  But  the  courts  will  grant  a  new 
trial  with  reluctance,  where  the  proceedings 
have  been  regular,  and  no  misconduct  is  at- 


NEW  TRIAL. 


463 


Grounds  for. 


Wrong  Verdict. 


tributable  to  the  jurors,  merely  because  the 
jury  may  have  mistaken  the  law  of  the  case, 
or  the  weight  of  evidence.  Wickersham  v. 
People,  1  Scam.  130 ;  State  v.  Hooper,  2 
Bail.  29;  State  v.  Anderson,  lb.  565;  State 
v.  Jeffrey,  3  Murph.  480;  Hall's  Case,  2 
Gratt.  594 ;  State  v.  Sartor,  2  Strobh.  60 ; 
Bivens  v.  State,  6  Eng.  455 ;  Mains  v.  State, 
8  lb.  285  ;  Bennett  v.  State,  lb.  694;  Giles 
V.  State,  6  Ga.  276 ;  State  v.  Fisher.  2  Nott 
&  McCord,  261;  Kirby  v.  State,  3  Humph. 
289. 

243.  Where,  however,  the  evidence  is  not 
sufficient  to  sustain  the  verdict,  a  new  trial 
may  be  granted,  although  it  may  not  be  a 
case  in  which  a  like  course  would  have  been 
pursued  in  a  civil  action.  Bedford  v.  State, 
5  Humph.  552.  Where  the  prisoner  has 
been  twice  tried  for  murder,  and  found 
guilty  each  time,  the  court  being  of  opinion 
that  the  evidence  was  wholly  insufficient  to 
sustain  the  verdict,  awarded  a  new'  trial. 
Grayson  v.  Com.  7  Gratt.  613.  But  a  new 
trial  will  .not  be  always  granted  although 
the  court  is  not  satisfied  beyond  a  reason- 
able doubt  of  the  guilt  of  the  accused. 
Kirby  v.  State,  supra. 

244.  The  prisoner  having  been  convicted 
of  murder  in  the  first  degree,  the  Supreme 
Court  in  reversing  the  judgment,  stated  that 
the  facts  would  authorize  a  conviction  of 
murder  in  the  second  degree.  On  the  sec- 
ond trial,  the  jury,  notwithstanding  this  in- 
timation of  the  court,  again  found  the  pris- 
oner guilty  of  murder  in  the  first  degree. 
Held  that  there  was  no  cause  for  a  new  trial. 
Mitchell  V.  State,  8  Yerg.  514. 

245.  Where  after  conviction  of  rape,  it 
appeared  that  the  prosecutrix  was  of  doubt- 
ful character,  that  she  did  not  speak  of  the 
offense  until  asked  about  it,  that  the  ac- 
cused did  not  flee,  that  the  prosecutrix  was 
uncorroborated,  that  the  place  of  the  alleged 
crime  was  such  that  she  might  have  been 
heard,  and  she  made  no  outcry,  it  was  held 
that  the  defendant  was  entitled  to  a  new 
trial.     Whitney  v.  State,  35  Ind.  503. 

246.  Where  under  an  indictment  against 
two,  for  grand  larceny,  the  evidence  against 
both  being  the  same,  the  jury  found  one 
guilty  of  grand  and   the  other  of  petit  lar- 


ceny, a  new  trial  was  granted.     State  v.  Lo- 
rumbo,  Harper,  183. 

247.  Under  a  statute  limiting  prosecutions 
for  the  offense  to  one  year  from  the  time  the 
offense  was  committed,  an  indictment  for 
gaming  was  found  in  March,  and  the  evi- 
dence showed  that  the  alleged  gaming  was 
some  time  during  the  year  previous.  It  was 
further  proved  that  the  defendant  sat  be- 
hind a  table,  commonly  called  a  faro  table ; 
that  he  dealt  or  drew  cards  from  a  box,  and 
used  pieces  of  bone  for  the  purpose  of  carry- 
ing on  the  game ;  but  it  was  not  proved  that 
any  money  was  played  for,  or  that  any  game 
was  actually  played.  The  defendant  having 
been  convicted,  it  was  held  that  there  was 
no  cause  for  a  new  trial.  Stevens  v.  State, 
3  Ark.  66. 

248.  On  a  trial  for  Sabbath  breaking,  a 
witness  testified  that  on  Sunday  he  went  to 
the  back  door  of  the  defendant's  store  and 
applied  to  him  for  goods,  which  the  de- 
fendant refused  to  sell  him,  assigning  as  a 
reason  that  it  was  Sunday ;  that  the  witness 
then  helped  himself  to  the  goods ;  that  the 
defendant  did  not  charge  the  goods  in  his 
account  against  the  witness,  or  at  any  time 
demand  payment,  but  that  he  afterward  re- 
ceived pay  for  them  from  the  witness.  The 
defendant  having  been  found  guilty,  it  was 
held  that  there  was  no  cause  for  a  new  trial. 
Bennett  v.  State.  8  Eng.  694. 

249.  Withholding  from  prisoner  benefit 
of  doubt.  If  the  jury  withhold  from  the 
prisoner  the  benefit  of  a  doubt,  a  new  trial 
will  be  granted.  State  v.  Hammond,  5 
Strobh.  91.  Where  the  judge  before  whom 
the  prisoner  was  tried,  considered  his  guilt 
doubtful,  a  new  trial  was  ordered  uj^on  the 
consent  of  the  prosecuting  attorney.  Dilby 
V.  State,  Riley,  302.  And  where  on  a  trial 
for  murder,  the  evidence  left  it  doubtful 
whether  one  of  the  defendants  was  present 
at  the  homicide,  a  new  trial  was  granted  as 
to  him.     State  v.  Rabon,  4  Rich.  260. 

250.  Verdict  variant  from  charge.  On 
the  trial  of  an  indictment  for  breaking  and 
entering  a  dwelling-house  with  intent  to 
commit  a  felony,  the  court  instructed  the 
jury  that  "if  they  believed  the  defendants 
(however  they  may  have  got  into  the  house) 


4G4 


NEW  TRIAL. 


Grounds  for. 


Wrong  Verdict. 


broke  out  of  it,  they  were  guilty.  Held  that 
as  they  coulJ  not  be  convicted  of  that  with 
which  they  were  not  charged,  the  instruc- 
tion was  erroneous,  and  ground  for  a  new 
trial.     State  v.  McPherson,  70  N.  C.  239. 

251.  In  South  Carolina,  on  the  trial  of  an 
indictment  for  stealing  fifteen  hogs,  under  a 
statute  imposing  a  penalty  of  five  dollars  for 
each  hog  stolen,  it  was  proved  that  the  de- 
fendant only  stole  three  hogs.  Held  that 
the  defendant  was  entitled  to  a  new  trial  on 
the  ground  that  the  charge  was  not  proved 
as  laid,  notwithstanding  the  prosecution  of- 
fered to  obtain  a  remission  of  the  penalty, 
excepting  for  the  three  hogs.  State  v.  Her- 
ring, 1  Brev.  159. 

252.  On  the  trial  of  an  indictment  for 
arson,  charging  the  defendant  in  the  first 
count  with  burning  a  barn,  parcel  of  the 
mansion  house,  and  in  the  second  count 
with  burning  a  barn  not  being  parcel  of  the 
mansion  house,  the  evidence  sustained  the 
second  count,  but  the  jm-y  notwithstanding, 
found  the  defendant  guilty  under  the  first 
count,  and  acquitted  him  as  to  the  second. 
Held  ground  for  a  new  trial.  State  v.  Stew- 
art, 6  Conn.  47. 

253.  Where  under  an  indictment  for  the 
larceny  of  several  books,  the  evidence  showed 
that  the  defendant  stole  but  a  part  of  the 
books,  and  the  jury  found  a  general  verdict 
of  guilty,  it  was  held  that  there  must  be  a 
new  trial,  although  the  punishment  was  the 
same  for  stealing  a  part  as  the  whole.  State 
V.  Somerville,  21  Maine,  20. 

254.  Where  there  is  a  general  verdict  of 
guilty,  under  an  indictment  charging  two 
distinct  offenses,  differently  punished,  a  new 
trial  will  be  granted.  State  v.  Montague, 
2  McCord,  257. 

255.  Under  an  indictment  for  receiving 
stolen  goods  and  charging  a  former  convic- 
tion, the  jury  rendered  a  general  verdict, 
nothing  having  been  said  to  them  as  to  the 
former  conviction.  Held  that  the  verdict 
must  be  set  aside.  Com.  v.  Briggs,  5  Pick. 
429. 

256.  "Where  no  injustice  has  been  done. 
On  the  trial  of  an  indictment  for  receiving 
stolen  goods,  which  misdescribed  a  part  of 
the   goods,   but   contained  a  suflScient   de- 


scription of  the  residue,  the  court  charged 
the  jury  that  there  was  no  misdescription, 
and  a  general  verdict  of  guilty  was  rendered. 
Held  not  ground  for  a  new  trial,  it  appear- 
ing from  the  bill  of  exceptions  that  the 
question  of  the  prisoner's  guilt  was  the  same 
in  respect  to  the  whole  of  the  goods,  he 
having  received  them  from  the  same  person 
by  a  single  act.  People  v.  Wiley,  3  Hill, 
194. 

257.  Presumption  in  favor  of  verdict. 
The  presumption  is  in  favor  of  the  verdict, 
and  unless  affirmatively  overthrown  by  the 
record,  the  verdict  will  not  in  general  be 
disturbed.  Waller  v.  State,  4  Ark.  87.  But 
the  court  may  grant  a  new  trial,  although 
no  error  appear  on  the  record.  Com.  v. 
Green,  17  Mass.  515. 

258.  Where  the  instructions  of  the  court 
contain  an  abstract  proposition  of  law,  it 
will  be  presumed  that  the  jury  correctly 
applied  it  to  the  case  before  them.  People 
v.  Reynolds,  2  Mich.  422. 

259.  If  on  the  trial  of  an  indictment  for 
libel,  the  question  of  malice  has  been  prop- 
erly left  to  the  jury,  and  they  have  found 
malice,  a  new  trial  will  not  be  granted  on 
the  ground  that  the  alleged  libel  was  not 
malicious.     Taylor  v.  State,  4  Ga.  14. 

260.  Where  it  is  the  duty  of  the  jury  to 
assess  the  fine,  a  new  trial  will  not  be  granted 
unless  the  fine  be  so  excessive,  as  to  show 
partiality  or  corruption.  State  v.  Blenner- 
hassett.  Walker,  7. 

261.  Relief  when  granted.  After  a  con- 
viction for  murder,  the  court  are  required 
to  order  a  new  trial,  when  they  are  satisfied 
that  the  verdict  is  against  evidence  or 
against  law,  or  that  justice  requires  a  new 
trial.     ]\Ianuel  v.  People,  48  Barb.  548. 

262.  Where  the  bill  of  exceptions  purports 
to  set  out  all  the  evidence,  and  the  proof 
does  not  sustain  the  indictment,  the  court 
will  set  aside  the  verdict,  although  no  special 
instruction  was  asked  for  by  the  defendant. 
Com.  v.  Merrill,  14  Gray,  415. 

263.  Review  of  decision.  In  Illinois, 
Arkansas  and  Georgia,  the  decision  of  the 
court  below,  refusing  a  new  trial  on  the 
ground  that  the  verdict  was  contrary  to 
evidence,  will  not  be  reviewed.     Halliday 


NEW   TRIAL.— NOLLE   PROSEQUL 


405 


Grounds  for.    Wrong  Verdict.     Effect  of  Setting  Aside  Verdict.     In  U.  S.  Courts. 


V.  People,  4  Oilman,  111  ;  Mayers  v.  State,  2 
Eng.  174 ;  McLane  v.  State,  4  Ga.  335 ;  Glory 
V.  State,  8  Eng.  236. 

264.  In  Virginia,  wliere  the  prisoner  was 
found  guilty  upon  circumstantial  evidence, 
and  the  court  before  which  the  trial  was 
had  refused  to  grant  a  new  trial,  it  was 
held  on  a  hearing  before  the  general  court, 
that  the  verdict  could  not  be  set  aside,  al- 
though the  evidence  did  not  appear  to  be 
sufficient.  McCune's  Case,  2  Rob.  77 ;  Cot- 
trell's  Case,  lb.  And  see  Hill's  Case,  2  Gratt. 
594. 

265.  In  New  York,  on  certiorari  to  a  Court 
of  Sessions,  the  Supreme  Court  will  not 
reverse  the  judgment  on  the  ground  that  the 
jury  mistook  a  question  of  fact.  People  v. 
Butler,  3  Parker,  377;  see  ante,  suh.  10-14. 

3.  Effect  of  setting  aside  verdict. 

266.  Prisoner  to  be  tried  again.  After 
conviction  and  reversal  of  the  judgment  for 
error  in  the  proceedings,  the  prisoner  may 
be  tried  again,  notwithstanding  the  jsro vision 
of  the  bill  of  rights  that  the  accused  shall 
not  be  twice  put  in  jeopardy  for  the  same 
oflfense.  Com.  v.  Gibson,  2  Va.  Cas.  70 ; 
Sutcliffe  V.  State,  18  Ohio,  469. 

267.  Subject  of  rehearing.  When  a 
new  trial  is  granted,  the  prisoner  can  only 
be  tried  upon  those  counts  in  the  indictment 
on  which  he  was  convicted,  and  not  upon 
those  of  which  he  was  acquitted.  Lithgow 
V.  Com.  2  Va.  Cas.  297. 

268.  But  in  South  Carolina,  where  under 
an  indictment  containing  two  counts  against 
road  commissioners  for  obstructing  a  road, 
the  defendants  were  convicted  on  the  second 
count,  it  was  held  that  a  new  trial  restored 
the  case  to  the  position  in  which  it  stood 
upon  the  finding  of  the  indictment.  State 
V.  Commissioners,  Riley,  273. 

See  Appeal  ;  Bill  of  exceptions  ;  Cer- 
tiorari ;  Writ  op  error. 


Nolle  Pro0cqui. 

1.  In  United  States  courts.     Although 
in  a  case  calling  for  such  action,  the  court 
might  decline  to  grant  a  motion  made  by 
30 


the  district  attorney  before  verdict  for  leave 
to  enter  a  nolle  prosequi,  until  the  government 
should  have  had  sufficient  time  to  protect 
itself  against  collusion,  yet  aside  from  this, 
the  motion  must  be  granted  as  a  matter  of 
right.     U.  S.  V.  Watson,  7  Blatchf.  60. 

2.  While  an  accusation  is  under  investiga- 
tion, before  either  a  commissioner  or  the 
grand  jury,  the  United  States  district  attor- 
ney has  no  absolute  power  over  the  case.  Al- 
though his  duty  requires  him  to  attend  the 
sessions  of  the  grand  jury,  to  advise  them  of 
the  law,  to  examine  witnesses,  and  when 
directed,  to  di'aw  indictments,  yet  he  cannot 
control  the  action  of  that  body.  But  after 
indictment  found  and  until  the  juiy  is  im- 
paneled, he  can  enter  a  nolle  prosequi,  even 
without  the  consent  of  the  court.  U.  S.  v. 
Schumann,  2  Abb.  523. 

3.  In  the  State  courts.  In  New  Hamp- 
shire, the  prosecuting  officer  has  a  general 
discretionary  power  to  enter  a  nolle  prosequi 
before  or  after  a  verdict  is  rendered  against 
the  prisoner.  State  v.  Smith,  49  New  Hamp . 
155.  In  Vermont,  it  was  held  that  although 
the  prosecution  might  enter  a  nolle  prosequi 
before  the  trial  commenced,  yet  that  after 
that  time,  it  could  only  be  done  by  leave 
of  the  court.  State  v.  Roe,  12  Vt.  93  ;  but 
not  against  the  wish  of  the  defendant.  State 
V.  I.  S.  S.  1  Tyler,  178. 

4.  In  New  York,  although  the  entry  of  a 
nolle  prosequi  cannot  be  directed  by  the 
court,  yet  the  district  attorney  can  only 
enter  it  with  leave  of  the  court.  People  v. 
McLeod,  1  Hill,  377.  The  necessity  of  pro- 
curing the  consent  of  the  court,  is  of  com- 
paratively recent  statutory  regulation ;  and 
this  restriction  applies  to  district  attorneys 
only,  the  attorney  general  still  having  power 
to  enter  a  nolle  prosequi  upon  any  indictment 
without  the  consent  of  the  court.  People 
V.  Bennett,  49  N.  Y,  137 ;  per  Church,  C.  J. 
The  New  York  Court  of  Sessions  has  no 
authority  to  direct  a  nolle  prosequi  on  an 
indictment  for  an  offense  not  triable  therein. 
People  V.  Porter,  4  Parker,  524. 

5.  In  Massachusetts  where  on  the  trial  of 
anindictment  for  burning  a  barn,  the  allega- 
tion of  ownership  was  not  proved  as  charged, 
it  was  held  that  a  nolle  prosequi  could  not  be 


4GG 


NOLLE   PROSEQUL 


In  State  Courts. 


To  Some  of  Several  Counts. 


entered,  but   that   the   defeudant  must   be 
acquitted.     Com.  v.  Wade,  17  Pick.  o95. 

6.  But  in  the  same  State  it  has  been  held 
that,  although  after  the  jury  are  impaneled 
the  defendant  is  entitled  to  demand  a  ver- 
dict, yet  if  he  do  not  do  so,  it  is  not  a  valid 
ground  of  exception  that  a  nolle  fvo»eqni 
was  entered.     Com.  v.  Kimball,  7  Gray,  328. 

7.  In  Tennessee,  before  conviction,  the 
attorney  general  and  the  court  may  dis- 
charge the  prisoner,  vpithout  acquittal,  by 
voile  prosequi.  State  v.  Fleming,  7  Humph. 
152.  In  North  Carolina,  the  attorney  gen- 
eral may  enter  a  nolle  prosequi^  but  the  court 
will  interfere  if  the  power  be  oppressively 
exercised.  State  v.  Thompson,  3  Hawks, 
613.  In  South  Carolina,  before  the  jury  is 
impaneled,  a  nolle  prosequi  may  be  entered 
at  the  pleasure  of  the  prosecuting  officer; 
but  if  entered  afterward,  without  the  con- 
sent of  the  prisoner,  it  will  operate  as  an  ac- 
quittal.    State  V.  McKee,  1  Bailey,  G51. 

8.  In  Georgia,  the  prosecution  may  enter 
a  nolle  prosequi  upon  a  first,  or  any  subse- 
quent indictment,  for  the  same  olfense,  be- 
fore tbe  case  has  been  submitted  to  the 
jury,  either  for  defects  in  the  pleadings, 
want  of  proof,  or  any  other  cause.  Durham 
V.  State,  9  Ga.  306.  But  see  Reynolds  v. 
State,  3  Kelly,  53.  In  Virginia,  it  was  held 
that  the  prosecuting  attorney  could  not  en- 
ter a  nolle  prosequi  without  the  consent  of 
the  court.     Anon.  1  Va.  Cas.  139. 

9.  The  meaning  of  "jeopardy,"  in  the 
Constitution  of  Alabama,  is  that  which  arises 
on  the  first  trial,  and  commences  as  soon  as 
the  parties  are  at  issue  upon  a  sufficient  in- 
dictment. After  the  case  is  submitted  to 
the  jury,  the  State  cannot  enter  a  nolle  prose- 
qui wUhout  the  consent  of  the  defendant ; 
and  if  done,  the  defendant  is  entitled  to  be 
discharged,  as  upon  an  acquittal.  Grogan 
V.  State,  44  Ala.  9. 

10.  To  part  of  charge.  After  verdict,  a 
voile  prosequi  may  be  entered  as  to  a  part  of 
a  count,  whereby  the  charge,  as  set  forth,  is 
reduced  in  its  degree  of  criminality.  State 
V.  Burke,  38  Me.  574. 

11.  Where  the  defendant  was  charged 
with  receiving  stolen  goods,  and  in  the  same 
indictment  it  was  alleged  that  he  had  be- 


fore been  convicted  of  the  like  offense,  it  was 
held  that  if  there  was  a  general  verdict,  a 
nolle  prosequi  as  to  the  aggravation  might  be 
entered  after  conviction.  Com.  v.  Briggs,  7 
Pick.  177. 

12.  Jn  New  York,  it  has  been  held  that 
when  a  nolle  j^rosequi  is  entered  to  part  of  an 
indictment  containing  a  single  count,  it 
operates  upon  the  whole,  and  entitles  the 
prisoner  to  his  discharge.  People  v.  Porter, 
4  Parker,  524.  In  Tennessee,  it  has  been 
held  that  where  an  indictment  for  a  felo- 
nious assault  contains  but  one  count,  a  nolle 
prosequi  entered  as  to  the  felony  is  a  dis- 
charge of  the  entire  accusation.  Brittain  v. 
State,  7  Humph.  159. 

13.  To  some  of  several  counts.  Where 
the  defendant  is  found  guilty  under  an  in- 
dictment containing  two  counts,  the  prose- 
cution may  enter  a  nolle  prosequi  as  to  one  of 
the  counts.     State  v.  Bruce,  11  Shepl.  71. 

14.  In  Massachusetts  a  complaint  before  a 
justice  of  the  peace  for  selling  spirituous 
liquor  without  a  license,  contrary  to  the 
statute  (R.  S.  ch.  143,  §  5),  contained  six 
counts,  upon  all  of  which  the  justice  found, 
the  defendant  guilty.  On  appeal  to  the 
court  of  Common  Pleas,  the  jury  found  the 
defendant  guilty  on  one  of  the  counts,  but 
disagreed  as  to  the  other  counts.  The  attor- 
ney for  the  prosecution  thereupon  entered  a 
nolle  prosequi  as  to  the  latter  counts.  Held 
proper.     Com.  v.  Stedman,  12  Mete.  444. 

15.  Two  slaves  being  charged  with  man- 
slaughter, and  a  severance  granted,  one  of 
them  was  found  "guilty  as  charged  in  the 
first  count,"  and  a  nolle  prosequi  entered  in  his 
case  as  to  the  second  count.  The  other  de- 
fendant, in  whose  case  a  demurrer  was  er- 
roneously sustained  to  the  second  count,  was 
tried  and  acquitted  on  the  first  count.  Held 
not  good  ground  for  arrest  of  judgment  after 
a  second  conviction  on  the  first  count  in  the 
case  of  the  first  defendant.  Aaron  v.  State, 
39  Ala.  75. 

16.  An  indictment  charged  the  prisoner  in 
one  couut  with  the  murder  of  Lucy  Mc- 
Laughlin, and  in  another  with  the  murder 
of  Kate  Smith.  The  counsel  for  the  prisoner 
moved  the  court  that  the  prosecution  be  re- 
quired to  elect  upon  which  count  the  pris- 


NOLLE  PROSEQUL— NUISANCE. 


467 


Is  not  a  Bar  to  Further  Prosecution. 


Nature  and  Requisites. 


■oner  should  be  tried.  The  court  reserved 
the  question.  During  the  trial  it  was  proved 
by  the  prosecution  that  the  deceased  was 
usually  known  by  the  name  of  Kate  Smith, 
but  there  was  some  evidence  tending  to 
show  that  her  name  was  Lucy  McLaughlin. 
At  the  close  of  the  evidence  the  prosecution 
entered  a  nolle  prosequi  as  to  the  count 
charging  the  murder  of  Lucy  McLaughlin, 
and  the  prisoner  was  found  guilty  upon  the 
other  count  for  the  murder  of  Kate  Smith. 
Held,  that  as  there  was  nothing  to  mislead 
the  prisoner,  there  was  no  error.  O'Brien  v. 
People,  48  Barb.  274 ;  atR'd  36  N.  T.  276. 

17.  Where  an  indictment  contained  three 
counts,  the  first  of  which  charged  the  burn- 
ing of  a  dwelling-house  in  the  night,  the 
second  the  burning  of  a  barn  in  the  night,  by 
means  of  which  said  dwelling-house  was 
burned,  and  the  third  the  burning  in  the 
night  of  a  barn  within  the  curtilage  ©f  said 
•dwelling-house,  it  was  held  that  the  want  of 
an  averment  that  the  different  counts  were 
different  descriptions  of  the  same  act,  was 
cured  by  the  entry  of  a  nolle  prosequi  of  the 
first  and  second  counts,  which  was  proper 
after  a  motion  to  quash  had  been  overruled, 
but  before  the  jury  had  been  impaneled. 
Com.  v.  Cain,  103  Mass.  487.  See  Com.  v. 
Holmes,  103  lb.  440. 

18.  Is  not  a  bar  to  further  prosecution. 
A  nolle  prosequi,  even  where  it  is  to  the 
whole  indictment,  is  not  a  bar  to  another  in- 
dictment for  the  same  offense.  Com.  v. 
"Wheeler,  3  Mass.  172 ;  State  v.  McNeill,  3 
Hawks,  183;  State  v.  Haskett,  Riley,  97: 
State  v.  Thornton,  13  Ired.  256  ;  State  v. 
Dover,  46  New  Hamp.  453. 

19.  In  North  Carolina,  a  nolle  prosequi 
having  been  entered  to  an  indictment  in  the 
•county  court,  a  second  indictment  was  found 
against  the  defendant  in  the  Superior  Court 
for  the  same  offense.  Held  proper,  the  de- 
fendant being  amenable  to  another  indict- 
ment in  any  court  having  jurisdiction  of  the 
offense.     State  v.  McNeill,  supra. 

20.  In  Alabama,  it  was  held  that  the 
statute  (Penal  Code,  ch.  8,  §  11)  which 
authorized  the  entry  of  a  nolle  prosequi 
where  the  prisoner  would  not  consent  to 
tlie  amendment  of  the  indictment,  the  vari- 


ance between  the  allegations  and  the  proof 
being  such  as  would  entitle  him  to  acquittal, 
could  not  be  extended  by  construction  so  as 
to  permit  a  nolle  prosequi  to  be  entered  and 
a  new  indictment  to  be  found  with  allega- 
tions essentially  dissimilar,  and  that  such 
second  indictment  would  not  come  within 
the  saving  clause  in  respect  to  the  statute  of 
limitations.     State  v.  Dunham,  9  Ala.  76. 

21.  Effect  on  bond.  The  entry  of  a  riolle 
prosequi  is  a  release  of  the  bond  and  its  ifor- 
feiture.     State  v.  Langton,  6  La.  An.  282. 

22.  Withdrawal  of.  Where  leave  was 
granted  the  prosecution  to  enter  a  nolle 
prosequi  as  to  certain  portions  of  the  indict- 
ment, and  the  same  was  entered  on  the 
docket,  and  afterward,  during  the  progress 
of  the  trial,  leave  was  granted  the  prosecu- 
tion to  strike  this  entry  off,  it  was  held 
proper,  none  of  the  rights  of  the  prisoner 
being  thereby  impaired.  State  v.  Nutting, 
39  Maine,  359. 


^fiusaucc. 


1. 

2. 

3. 
4. 
5. 

6. 

7. 

8. 

9. 
10. 
11. 
12. 
13. 
14. 
15. 


Nature  and  requisites. 
Acts  endangering  life. 
Acts  detrimental  to  health. 
Obstructing  highway. 
Neglect  to  repair  highway  or 

BRIDGE. 

Obstructing  river. 

Disorderly  house. 

Gaming  house. 

Bowling  alley. 

Trial. 

Indictment. 

Evidence. 

Verdict. 

Judgment. 

Ab.vtement  of  nuisance. 


1.  Nature  and  requisites. 

1.  Must  be  an  annoyance  to  the  public. 

To  render  an  act  indictable  as  a  nuisance,  it 
must  be  inconvenient  and  troublesome  to 
the  whole  community,  and  not  merely  to  in- 
dividuals. State  V.  Schlottman,  53  Mo. 
164 ;  s.  c.  1  Green's  Crim.  Reps.  553.  Pub- 
lic  profanity   is   indictable    as  a    common 


4G8 


NUISANCE. 


Nature  and  Requisites. 


Acts  Endangering  Life. 


nuisance.  State  v.  Graham,  3  Sneed,  134. 
But  where  persons  assembled  in  a  jniblic 
place,  and  with  loud  quarreling  and  pro- 
fane swearing  disturbed  and  broke  up  a 
a  singing  school,  it  was  held  that  they  were 
not  guilty  of  a  nuisance.  State  v.  Baldwin, 
1  Dev.  &  Batt.  195. 

2.  In  Massachusetts,  an  indictment  for  a 
public  nuisance  in  uttering  loud  cries  and 
exclamations  in  a  jjublic  street  was  held 
sustained  by  proof  that  one  or  two  persons 
were  awakened  from  sleep  and  disturbed 
thereby.  Com.  v.  Oaks,  113  Mass.  8.  In 
the  same  State,  to  constitute  the  offense  of 
uttering  loud  exclamations  and  outcries,  and 
thereby  drawing  together  a  number  of  per- 
sons, to  the  great  damage  and  common  nuis- 
ance of  all  the  citizens,  the  act  must  be  of 
such  a  nature  as  tends  to  annoy  good  citi- 
zens, and  does  in  fact  annoy  such  of  them 
as  are  present  and  not  favoring  it.  But  the 
fact  that  there  are  also  persons  present  who 
give  encouragement  and  countenance  to  the 
illegal  act  is  no  defense.  Com.  v.  Harris, 
101  lb.  29.     See  Com.  v.  Smith,  6  Cush.  80. 

3.  Nature  of  the  acts  to  be  regarded, 
and  not  time.  To  constitute  the  offense  of 
disturbing  the  public  peace  by  the  assembly 
of  noisy  and  dissolute  persons  in  a  house  or 
tenement,  and  thus  creatmg  a  common  nui- 
sance, the  nature  of  the  acts  are  to  be  re- 
garded, and  not  the  length  of  time  during 
which  they  are  committed.  Com.  v.  Gal- 
lagher, 1  Allen,  592. 

4.  On  the  trial  of  an  indictment  for  keep- 
iug  a  disorderly  house,  it  appeared  that  the 
dwelling  of  the  defendant  where  the  dis- 
order occurred  was  in  the  country,  not  on  or 
near  a  public  road,  and  that  there  were  only 
five  families  within  a  mile;  that  two  of 
these  families  were  often  disturbed  at  a  late 
hour  of  the  night  by  the  drunken  orgies  of 
the  sous  of  the  defendant,  but  that  the  other 
three  families  were  not  disturbed  by  them; 
that  the  defendant  did  not  join  his  sons  in 
making  the  noise,  and  at  times  tried  to  keep 
them  quiet.  Held  that  the  house  was  not  a 
common  nuisance.  State  v.  Wright,  6  Jones, 
25. 

5.  On  the  trial  of  an  indictment  for  keep- 
ing a  disorderly  common  tippling  house,  the 


jury  found  a  special  verdict  that  the  de- 
fendant on  one  occasion  kept  a  house  in 
which  there  was  a  collection  of  twenty  or 
thirty  negroes,  who  got  drunk,  danced  and 
disturbed  the  neighborhood  with  noise. 
Held  not  sufficient  to  support  a  conviction. 
Dunnaway  v.  State,  9  Yerg.  350. 

6.  Must  be  obnoxious  in  fact.  The  com- 
mon council  of  a  city  cannot  declare  that  to 
be  a  nuisance  which  is  not  such  in  fact, 
and  they  m.ust  confine  their  prohibitory 
action  aimed  at  fixing  the  locality  of  any 
business  to  future  erections.  Wreford  v. 
People,  14  Mich.  41. 

7.  In  Massachusetts,  under  the  statute 
(Gen.  Stats,  ch.  64),  the  determination  of 
the  mayor  and  aldermen  of  a  city  of  the 
places  in  which  the  poles  of  telegraph  com- 
panies may  stand  is  conclusive  upon  the 
rightfulness  of  their  erection  within  the 
limits  of  a  highway,  so  that  they  cannot 
lawfully  be  removed  by  the  city  or  any  of 
its  officers  or  treated  as  a  public  nuisance- 
Com.  V.  City  of  Boston,  97  Mass.  555. 

8.  A  statute  which  legalizes  an  existing 
nuisance  maybe  repealed.  Reading  v.  Com- 
11  Penn.  St.  196. 

2.  Acts  ekdangering  life. 

9.  Keeping  explosives.  A  nuisance  at 
common  law,  may  consist  in  the  keeping  or 
manufacture  of  gunpowder,naphtha,  or  other 
explosive  or  inflammable  substances  in  such 
quantities  and  places,  or  in  such  a  manner 
as  to  be  dangerous  to  the  persons  and  prop- 
erty of  the  people  of  the  neighborhood. 
Com.  V.  Kidder,  107  Mass.  188. 

10.  Spring  guns.  The  mere  act  of  set- 
ting spring  guns  on  one's  own  premises  is  not 
unlawful ;  but  the  doing  of  it  may  make  the 
person  responsible  for  any  injury  thereby 
occasioned  to  individuals,  and  he  may  be  in- 
dictable for  the  erection  of  a  nuisance,  if  the 
public  are  subjected  to  danger  and  annoy- 
ance.    State  V.  Moore,  31  Conn.  479. 

11.  In  Connecticut,  the  placing  of  spring 
guns  in  a  shoj)  for  its  protection  against 
burglars  is  lawful,  and  the  person  so  doing, 
will  be  justified,  although  the  death  of  the 
burglar  be  thereby  occasioned.  Placing 
however,  a  loaded  gun  in  a  shop  so  as  to 


NUISANCE. 


4G!) 


Acts  Endangering  Life. 


Acts  Detrimental  to  Health. 


range  over  a  highway,  cocked,  and  with 
strings  attached  to  the  trigger,  so  that  it  may 
be  discharged  by  an  object  coming  in  con- 
tact with  the  string,  and  sufficiently  near  and 
unprotected  to  inflict  injury  if  any  one 
should  then  be  within  its  range  on  the  high- 
way, is  a  public  nuisance;  but  otherwise,  if 
the  shot  would  not  pass  through  the  side  of 
the  shop  with  sufficient  force  to  inflict  injury, 
although  jiersons  passing  on  the  highway 
are  annoyed  and  alarmed,  and  apprehensive 
of  danger  from  an  accidental  discharge  of 
the  gun.     State  v.  Moore,  supra. 

12.  Improper  driving.  An  indictment 
may  be  maintained  at  common  law  for  driv- 
ing through  a  crowded  street  in  such  a  way 
as  to  endanger  the  lives  of  the  citizens.  U. 
S.  V.  Hart,  Pet.  C.  C.  390. 

3.  Acts  detrimental  to  health. 

13.  Offensive  trade.  While  an  ofiensive 
or  unwholesome  trade  or  business  is  carried 
on  at  a  point  so  remote  from  others  as  in  no 
manner  to  afl^ect  or  disturb  them,  the  pursuit 
is  lawful.  But  it  becomes  unlawful  when 
the  adjacent  territory  is  devoted  to  domestic 
or  business  uses,  and  the  inhabitants  are 
disturbed  and  rendered  uncomfortable  by 
the  continuance  of  the  establishment.  Tay- 
lor V.  People,  6  Parker,  347. 

14.  The  defendants  were  indicted  for  cre- 
ating a  nuisance  by  unwholesome  smells, 
smokes  and  stenches,  rendering  the  air  cor- 
rupt, offensive,  uncomfortable  and  unwhole- 
some. The  Legislature  had  authorized  them 
to  manufacture  gas  to  be  used  for  lighting 
streets  and  buildings  in  the  city  of  New 
York.  It  also  required  that  the  act  be  favor- 
ably construed  in  all  the  courts  for  the  pur- 
poses expressed  therein.  It  appeared  that 
persons  residing  near  were  much  disturbed, 
and  sometimes  sickened,  by  the  oppressive 
smell  in  certain  conditions  of  the  atmos- 
phere. Held,  that  although  private  persons 
might  perhaps  maintain  an  action  for  dam- 
ages, yet  that  the  people  were  barred  by  the 
act  of  the  Legislature  from  making  a  public 
complaint  by  indictment  for  such  a  cause 
while  the  defendants  conducted  their  busi- 
ness with  skill  and  care.  People  v.  N.  Y. 
Gas  Light  Co.  64  Barb.  55. 


15.  The  continuance  of  an  offensive  busi- 
ness for  more  than  twenty  years  before  the 
existence  of  a  public  way  or  dwelling-houses 
in  the  vicinity,  is  no  defense  to  an  indict- 
ment for  a  nuisance.  Com.  v.  Upton,  6 
Gray,  473. 

16.  In  Maine,  it  was  held  not  a  defense  to 
an  indictment  for  carrying  on  a  noxious 
trade,  that  the  selectmen  had  not  previously 
assigned  some  place  for  exercising  the  trade 
under  the  statute  (ch.  1G4,  §  2).  State  v. 
Hart,  34  Maine,  36. 

17.  Corrupting  water.  It  is  indictable 
to  render  water  unwholesome  by  throwing  a 
dead  animal  into  ic.  State  v.  Buckman,  8 
New  Ilamp.  203. 

18.  An  information  for  a  nuisance,  was 
held  sufficient  at  common  law,  which 
charged  the  defendant  with  urinating  in  a 
spring  of  water  near  a  public  highway,  out 
of  which  many  persons  in  the  vicinity  and 
travelers  along  the  road  were  accustomed  to 
use  water,  thereby  rendering  the  spring  un- 
fit for  use  and  indecent,  and  to  the  obstruc- 
tion of  the  free  use  of  the  water  thereof  by 
the  citizens  of  the  State.  State  v.  Taylor, 
29  Ind.  517.     See  Sloan  v.  State,  8  lb.  312. 

19.  Poisoning  air  with  stagnant  water. 
Where  a  mill-dam  across  a  stream,  by  caus- 
ing the  water  to  stagnate,  corrupts  the  air, 
producing  sickness  in  a  whole  neighborhood ; 
or  if  without  occasioning  sickness,  it  renders 
the  enjoyment  of  life  and  property  in  the 
community  uncomfortable  by  disagreeable 
smells,  it  is  a  public  nuisance,  for  which  an 
indictment  wUl  lie,  notwithstanding  the  dam 
has  been  kept  up  in  the  same  place  for 
seventy  years,  and  it  only  became  ofiensive 
during  the  last  year  of  its  existence.  State 
V.  Rankin,  3  South  Car.  438;  s.  c.  1  Green's 
Crim.  Reps.  503. 

20.  But  to  constitute  a  nuisance  in  dam- 
ming up  the  water  of  astream,thereby  making- 
it  stagnant,  it  must  be  proved  that  the  dam 
was  placed  in  the  stream  so  near  the  high- 
way, or  some  public  place,  that  the  stagnant 
water  afibcted  the  public.  Com.  v.  Webb, 
6  Rand.  726. 

21.  Where  the  authorities  of  a  city  by 
changing  the  grade  of  a  street  in  front  of 
the  defendant's  premises  caused  water  to  ac- 


470 


NUISANCE. 


Acts  Detrimental  to  Health. 


Obstructing  Highway. 


cumulate,  Tvhich  became  putrid  and  noxious, 
it  was  held  that  an  indictment  against  the 
defendant  for  keeping  and  permitting  a 
nuisance  could  not  be  sustained.  Barring 
V.  Com.  2  Duvall,  Ky.  95. 

22.  Where  a  pond,  without  creating  sick- 
ness, produces  smells  which  impair  the  en- 
joyment of  life  and  property  in  the  neigh- 
borhood, it  is  indictable  as  a  public  nui- 
sance, and  no  length  of  time  will  legalize  it. 
But  if  other  causes  to  which  the  owner  of 
the  pond  does  not  contribute,  and  which  do 
not  arise  from  his  agency,  produce  the  un- 
pleasant effects,  he  is  not  liable.  State  v. 
Rankin,  3  Rich.  N.  S.  438. 

23.  It  is  no  defense  to  an  indictment  for  a 
nuisance  in  maintaining  a  mill-dam  whereby 
the  surrounding  country  is  flooded  with  stag- 
nant water,  that  the  dam  is  not  more  detri- 
mental to  the  public  health  than  such  struc- 
tures usually  are,  or  that  the  dam  was  erected 
before  that  section  was  settled.  Douglass  v. 
State,  4  Wis.  387. 

4.  Obstructing  highway. 
..  '24.  Highway,  how  created.  Land  does 
not  become  a  public  highway  by  dedication 
without  user  for  twenty  years,  or  acceptance. 
Repairing  it  by  a  surveyor  of  highways  does 
Bot  constitute  such  acceptance.  State  v. 
Bradbury,  40  Maine,  154. 

•25.  The  mere  use  of  a  way  or  road  by  the 
people  of  a  neighborhood  for  a  long  period 
of  time  to  go  to  church,  and  other  neighbor- 
ing places,  the  road  not  being  of  the  width 
prescribed  by  law  for  highways,  nor  treated 
as  a  highway  by  the  appointment  of  an  over- 
seer with  laborers  to  keep  it  in  repair,  is  not 
a  public  road  which  it  is  indictable  to  ob- 
struct.    State  V.  McDaniel,  8  Jones,  284. 

26.  In  New  Hampshire,  it  has  been  held 
that  a  highway  may  be  accepted  by  a  vote 
raising  money,  or  other  act  recognizing  an 
obligation  to  repair,  or  by  twenty  years'  user, 
or  by  substituting  it  for  an  ancient  highway 
which  has  been  allowed  to  go  to  decay. 
State  V.  Atherton,  16  New  Hamp.  203.  Se- 
lectmen are  required  in  the  exercise  of  their 
power  in  laying  out  a  road,  to  proceed  upon 
their  own  convictions  of  what  the  public 
good   and  convenience  demand.     Where  a 


road  was  laid  out  by  them  in  pursuance  of 
the  instructions  of  the  town,  it  was  held 
illegal ;  the  record  not  showing  that  their 
doings  were  of  that  judicial  character  that 
the  law  exacts,  or  that  improper  influences 
were  not  brought  to  bear  upon  them.  State 
v.  Newmarket,  20  lb.  519,  Where  no  notice 
was  given  of  the  laying  out  of  a  highway 
over  land  on  which  there  was  a  house,  it 
was  held  that  an  indictment  for  a  nuisance 
in  continuing  the  house  in  the  highway 
could  not  be  maintained.  State  v.  Reed,  38 
lb.  59. 

"  27.  What  deemed  a  highway.  On  the 
trial  of  a  complaint  for  a  nuisance  in  erect- 
ing and  continuing  a  fence  upon  ''  a  public 
highway,  and  traveled  road,"  the  following 
instruction  was  held  correct :  That  if  the  jury 
found  there  was  at  the  time  of  the  acts  com- 
plained of,  and  had  been  for  more  than 
twenty  years  before,  a  road  or  way  open  to 
the  whole  public  without  limitation  or  re- 
striction, and  it  was  in  fact  so  used  by 
travelers  on  foot,  or  with  horses  and  car- 
riages, during  all  that  time,  and  was  recog- 
nized as  such  jjublic  way  by  the  town,  by  ex- 
pending money  on  it  for  repairs  during  all 
those  years,  it  was  such  a  highway  or  public 
road  as  would  sustain  the  complaint.  State 
V.  Bunker,  59  Maine,  360. 

28.  In  New  York,  a  road  used  as  a  com- 
mon highway  subsequent  to  the  year  1777, 
but  not  recorded  as  such,  was  held  not  a 
public  highway  within  the  meaning  of  the 
statute  relative  to  highways  (Sess.  36,  ch.  33, 
§  24),  so  as  to  render  an  obstruction  of  it  a 
nuisance.    People  v.  Lawson,  17  Johns.  277. 

29.  The  public  easement  is  not  necessarily 
limited  to  the  traveled  path  and  the  ditches 
on  each  side.  But  where  the  road  has  been 
fenced  out  for  many  years,  about  the  usual 
width,  and  there  is  nothing  to  control  it,  a 
jury  will  be  justified  in  finding  that  the 
whole  space  between  the  fences  is  a  public 
highway.     State  v.  Morse,  50  New  Hamp.  9. 

20.  Right  of  way.  Where  a  town  has  a 
right  of  way,  it  will  be  deemed  a  private 
way,  and  if  any  one  other  than  an  inhabit- 
ant of  the  town  passes  over  it,  he  will  be  a 
trespasser.  If  obstructed,  an  indictment  can- 
not be  maintained  for  the  obstruction ;  and 


NUISANCE. 


471 


Obstructing  Highway. 


the  towu  will  not  be  liable  for  neglecting  to 
repair  it.     Com.  v.  Low,  3  Pick.  408. 

31.  Where  a  way  has  always  been  used  as 
a  public  highway  by  the  land  owners  for  ac- 
cess to  their  farms,  and  for  Airming  purposes, 
the  public  right  will  not  be  deemed  to  have 
been  lost  by  abandonment.  State  v.  Morse, 
50  New  Hamp.  9. 

32.  A  way  of  necessity  does  not  give  the 
public  a  permanent  easement  in  the  adjoin- 
ing land.  State  v.  Northumberland,  44  New 
Hamp.  638. 

33.  Acts  rendering  party  liable.  The 
obstruction  of  any  road  laid  by  public  au- 
thority is  a  nuisance.  State  v.  Mobley,  1 
McMullan,  44.  And  although  a  road  be 
opened  as  a  highway  by  an  erroneous  judg- 
ment of  the  court,  it  will  be  a  nuisance  to 
obstruct  it  before  the  judgment  is  reversed. 
State  v.  Spainhour,  2  Dev.  &  Batt.  547. 

34.  The  proprietors  of  a  distillery  in  a  city 
were  in  the  habit  of  delivering  the  grains 
after  distillation  to  purchasers,  by  passing 
the  grain  through  pipes  to  the  public  street, 
opposite  their  distillery,  where  it  was  re- 
ceived into  casks  standing  in  wagons  and 
carts,  which  were  accustomed  to  collect 
there  in  great  numbers  to  receive  and  take 
away  the  article ;  and  in  consequence  of 
their  remaining  there  to  await  their  turns. 
and  of  the  strife  among  the  drivers  for  pri- 
ority, and  of  their  disorderly  conduct,  the 
street  was  obstructed.  Held  that  the  de- 
fendants were  liable  to  indictment  for  nui- 
sance.   People  V.  Cunningham,  1  Denio,  534. 

35.  Placing  or  maintaining  a  building, 
stones,  or  other  obstructions,  in  a  public 
highway  without  lawful  authority,  is  an  in- 
dictable nuisance  at  common  law.  Com.  v. 
Blaisdell,  107  Mass.  334.  The  temporary 
obstruction  of  part  of  a  street  or  highway, 
by  persons  engaged  in  building,  or  in  receiv- 
ing or  delivering  goods,  is  allowed,  from  the 
necessity  of  the  case;  but  not  the  systematic 
and  continued  encroachment  upon  a  street, 
though  for  the  purpose  of  carrying  on  a  law- 
ful business.     People  v.  Cunningham,  supra. 

36.  Oflicers  who  obstruct  a  highway  by 
holding  sales  therein,  may  be  indicted  as  a 
nuisance.  Com.  v.  Williams,  18  Serg.  & 
Rawlc,  403. 


37.  Where  a  person  who  occupies  land 
over  which  a  public  road  runs,  maintains  a 
fence  across  the  road,  which  he  did  not 
originally  erect,  he  is  liable  to  an  indict- 
ment for  a  nuisance.  State  v.  Hunter,  5 
Ired.  369. 

38.  Where  an  act  of  the  Legislature  au- 
thorized the  owner  of  land  lying  on  the  East 
River  to  construct  wharves  and  bulkheads 
in  the  river  in  front  of  his  land,  and  there 
was  at  that  time  a  public  highway  through 
said  land  terminating  at  the  river,  it  was 
held  that  he  could  not,  by  filling  up  the 
land  between  the  shore  and  the  bulkhead, 
obstruct  the  public  right  of  passage  from 
the  land  to  the  water,  without  being  liable 
to  indictment  for  nuisance.  People  v.  Lam- 
bier,  5  Denio,  9. 

39.  Where  a  public  highway  was  discon- 
tinued for  a  time,  and  a  new  road  used  by 
the  public,  by  permission  of  the  owners  of 
the  land,  it  was  held  that  any  obstruction 
placed  across  the  old  road  was  a  nuisance. 
Elkins  V.  State,  3  Humph.  543. 

40.  Partial  encroachment.  A  mere  en- 
croachment upon  some  portion  of  the  high- 
way limits,  whereby  the  highway  is  rendered 
less  commodious,  is  a  nuisance.  State  v. 
Merrit,  35. Conn.  314. 

41.  Where  a  petition  to  county  commis- 
sioners for  laying  out  a  highway  prayed  that 
it  might  be  laid  across  a  bridge  thirty-two 
feet  wide,  it  was  held  that  they  might  lay  out 
the  way  fifty  feet  wide,  if  they  thought  that 
the  public  convenience  required  it ;  but  that 
if  they  so  adjudged,  and  afterward  deter- 
mined that  only  thirty-two  feet  in  width 
should  be  completed  at  that  time,  an  ob- 
struction on  the  unfinished  part  was  a 
nuisance  for  which  an  indictment  might  be 
maintained.  Com.  v.  Boston  &  Lowell  R.  R. 
Corp.  13  Cush.  254. 

42.  Sidewalk.  In  Pennsylvania,  it  is  an 
indictable  ofiense  to  obstruct  a  sidewalk. 
Reading  v.  Com.  11  Penn.  St.  196. 

43.  Passageway.  The  obstruction  of  a 
passageway  from  one  highway  to  another 
is  a  nuisance,  such  passageway  being 
deemed  a  highway.  State  v.  Duncan,  1 
McCord,  404. 

44.  But  to  make  the  obstruction  of  a  way 


472 


NUISANCE. 


Obstructing  Highway. 


an  indictable  offense,  it  must  injuriously 
affect  some  public  right.  An  alley  or  cid  de 
sac  in  the  interior  of  a  city  block,  not  form- 
ing a  passage  from  one  street  to  another,  is 
not  a  way  for  the  obstruction  of  which  an 
indictment  will  lie.  People  v.  Jackson,  7 
Mich.  432. 

45.  Encroachment  by  railroad.  The  un- 
lawful obstruction  of  a  highway  by  a  railroad 
is  a  nuisance,  and  the  remedy  is  by  indict- 
ment against  the  company.  Com.  v.  Vt.  & 
Mass.  R.  R.  Corp.  4  Gray,  22 ;  State  v.  Vt. 
Cent.  R.  R.  Co.  27  Vt.  103. 

46.  A  railroad  company  is  liable  to  in- 
dictment for  a  nuisance  in  erecting  and 
continuing  a  building  and  leaving  their  cars 
in  the  highway ;  and  it  is  liable  for  the  acts 
of  its  agents  done  by  its  implied  authority, 
though  there  be  no  written  appointment 
under  seal,  nor  a  vote  of  the  company  con- 
stituting the  agency.  State  v.  Morris  &  Essex 
R.  R.  Co.  3  Zabr.  3G0. 

47.  But  an  indictment  cannot  be  main- 
tained against  a  railroad  company  for  a 
nuisance  in  obstructing  a  street  by  a  switch 
when  the  street,  which  was  dedicated  to 
public  use  by  the  owner,  has  never  been 
accepted  by  the  town.  Gedge  v.  Com.  9 
Bush,  Ky.  61. 

48.  And  when  a  railroad  is  in  the  hands 
of  a  receiver,  and  the  company  are  under  an 
injunction  not  to  intermeddle  with  its  con- 
cerns, the  company  is  not  liable  to  an 
indictment  for  a  nuisance  in  blocking  up  a 
highway  with  freight  cars,  engines,  &c. 
State  V.  Vt.  Cent.  R.  R.  Co.  30  Vt.  108. 

49.  Encroachment  on  public  square. 
Where  a  public  square  was  illegally  scjld  by 
city  authorities,  and  jjrivate  houses  erected 
thereon,  it  was  held  that  the  owners  of  the 
houses  were  indictable  for  a  nuisance  in 
erecting  them.  Com.  v.  Rush,  14  Penn.  St. 
18G. 

50.  Where  county  buildings  were  erected 
on  part  of  a  public  square,  and  occupied 
several  years,  when  new  buildings  were 
erected  on  another  part  of  the  same  square, 
and  the  old  buildings  rented  for  other  than 
county  purposes — held  that  the  county  com- 
missioners, and  also  the  persons  who  occu- 
pied the  old  buildings,  were  liable   to   an 


indictment  for  a  public  nuisance.     Com.  v. 
Bowman,  3  Barr,  202. 

51.  Though  the  fee  of  land  be  in  a  town 
or  be  private  property,  yet  if  the  use  be 
given  to  the  public,  and  it  is  so  used  for  a 
long  time,  an  obstruction  of  it  may  be  prose- 
cuted by  indictment.  State  v.  Atkinson,  24 
Vt.  448. 

52.  Cattle  in  street.  Where  the  ordinance 
of  a  city  provided  that  no  owner  or  person 
having  the  care  of  cows  or  other  grazing 
animals  should  permit  them  to  go  at  large, 
or  stop  to  feed  on  any  street,  it  was  held  that 
a  complaint  which  alleged  that  the  defend- 
ant having  the  care  of  two  cows,  permitted 
them  to  stop  and  feed  in  certain  streets,  was 
insufficient  even  after  verdict,  the  manifest 
intention  of  the  statute  being  to  prohibit  the 
grazing  of  cattle  in  the  streets.  Com.  v.  Bean, 
14  Gray,  52. 

53.  Obstructing  railroad.  As  placing  a 
single  piece  of  timber  on  a  railroad  track 
constitutes  an  unlawful  obstruction,  the  fact 
that  the  indictment  charges  that  several 
pieces  of  timber  were  placed  upon  it,  and  it 
is  proved  that  only  one  was  placed  there,  is 
not  a  variance.  Allison  v.  State,  42  Ind. 
354. 

54.  On  the  trial  of  an  indictment  for 
placing  obstructions  on  a  railroad  track,  it 
is  proper  for  the  court  to  refuse  to  charge 
that  "  if  the  jury  believe  from  the  evidence 
that  the  defendant  owns  the  land  where  the 
obstruction  was  laid  upon  the  railroad  track, 
and  the  railroad  company  had  not  obtained 
tlie  right  of  way  over  the  same,  the  defend- 
ant had  a  right  to  place  what  he  pleased 
upon  his  own  land,  and  should  be  acquit- 
ted."    State  V.  Hessenkamp,  17  Iowa,  25. 

55.  The  defendant,  with  a  heavily  loaded 
team,  was  on  a  public  street,  with  one  of  his 
wheels  on  the  track  of  a  horse  railroad,  when 
the  cars  came  up  behind  him.  The  defend- 
ant's team  was  moving  at  the  usual  rate  for 
teams  of  that  class,  but  at  a  less  rate  of  speed 
than  the  cars  were  in  the  habit  of  moving, 
with  room  outside  the  track  for  vehicles  to 
pass.  The  conductor  requested  the  defend- 
ant to  remove  his  team  from  the  track,  which 
he  did  not  do,  but  continued  upon  it  at  the 
same  rate  of  speed  several  hundred  feet,  and 


NUISANCE. 


473 


Neglect  to  Repair  Highway  or  Bridge. 


then  turned  off.  Held  that  he  was  liable  to 
indictment  for  the  willful  and  malicious  ob- 
struction of  the  railroad,  and  that  it  was  no 
excuse  that  he  did  not  get  upon  the  track  in 
the  first  instance  with  the  intention  of 
obstructing  the  passage  of  the  cars,  or 
slacken  his  pace  on  their  approach.  Com. 
V.  Temple,  14  Gray,  69. 

5.  Neglect  to  repair  highway  ok  bridge. 

56.  May  be  punished  criminally.  The 
party  obliged  by  law  to  rejiair  a  public 
bighway  or  toll-bridge  is  liable  criminally 
for  neglecting  to  do  so;  and,  in  general,  an 
indictment  may  be  maintained  whenever  an 
action  for  damages  will  lie.  State  v.  Inhabs. 
of  Madison,  63  Maine,  546. 

57.  Liability  of  turnpike  company.  In 
Tennessee,  where  a  turnpike  company  neg- 
lected to  repair  their  road,  and  thereby 
forfeited  their  right  to  toll,  it  was  held  that 
the  company  was  liable  to  indictment  for  a 
nuisance.     Simpson  v.  State,  10  Yerg.  525. 

58.  In  Massachusetts,  where  by  the  turn- 
pike law  (R.  S.  ch.  39,  §  42),  the  corporation 
is  amenable  to  indictment  whenever  a  person 
liable  to  2)ay  toll  has  sustained  injury  by 
reason  of  the  road  being  out  of  repair,  it  is 
likewise  amenable,  although  no  person  pay- 
ing toll  has  sustained  injury  by  reason  of 
such  want  of  repair.  Com.  v.  Hancock  Free 
Bridge  Corp.  2  Gray,  58. 

59.  Where,  by  the  act  of  incorporation  of 
a  turnpike  and  bridge  company,  it  was  made 
the  duty  of  the  president  and  directors  to 
keep  the  road  in  repair,  and  the  neglect  to  do 
so  was  declared  a  misdemeanor  in  the  pres- 
ident and  individual  directors  for  the  time 
being,  it  was  held  that  an  individual  director 
might  be  indicted  for  such  neglect,  either 
separately  or  jointly  with  his  codirectors, 
and  on  conviction  might  be  punished  sepa- 
rately, although  the  board  of  directors  con- 
sisted of  several  members,  and  the  concur- 
rence of  a  majority  was  necessary  to  the 
doing  of  a  corporate  act.  Kane  v.  People,  8 
Wend.  203. 

60.  Neglect  of  town  to  repair  road. 
The  conditional  acceptance  of  a  road  by  a 
town  is  void ;  and  where  it  was  covered  by 
water  and  only  traveled  in  the  winter  upon 


the  ice,  it  was  held  that  such  travel  could 
not  establish  the  road  by  user,  for  the  non- 
repair of  which  in  summer  the  town  could 
be  indicted.  State  v.  Calais,  48  Maine,  456. 
But  if  a  town  has  neglected  to  repair  a  part 
of  the  road  which  it  is  its  duty  to  maintain, 
it  is  no  defense  that  this  part  would  be  of 
no  immediate  practical  use  because  a  bridge 
company  has  also  been  guilty  of  a  neglect  of 
duty.  Com.  v.  Inhabs.  of  Deerfield,  6  Allen, 
449. 

61.  An  order  of  court  establishing  a  high- 
way having  length  but  no  definite  width, 
imposes  no  duty  or  obligation  on  the  town 
to  open  and  work  such  highway.  State  v. 
Town  of  Leicester,  33  Vt.  653.  The  grant- 
ing of  a  writ  of  certiorari^  however,  to  quash 
the  proceedings  of  the  county  commissioners 
in  laying  out  a  highway  is  not  tantamount 
to  quashing  such  proceedings ;  but  it  is  to 
be  regarded  as  a  valid  and  subsisting  high- 
way until  judgment  to  quash  is  rendered. 
State  V.  Inhabs.  of  Madison,  63  Maine, 
546. 

62.  Neglect  to  repair  streets.  Where 
the  mayor  and  aldennen  of  a  municipal 
corporation  are  bound  to  keep  the  streets  in 
repair,  they  may  be  indicted  and  punished 
individually  for  neglect  of  that  duty.  Hill 
V.  State,  4  Sneed,  443. 

63.  Duty  to  repair  bridge.  When  the 
duty  of  building  and  keeping  in  repair  a 
public  bridge  is  imposed  by  law  upon  any 
person  or  cori^oration,  such  person  or  cor- 
poration is  liable  to  indictment  at  common 
law  for  neglecting  this  duty.  State  v.  Morris 
Canal  Co.  2  Zabr.  537. 

64.  When  a  flood  in  a  river  has  washed 
away  a  part  of  its  banks,  and  so  widened 
the  bed  of  the  stream,  the  obligation  of  a 
corporation  having  the  franchise  of  a  toll- 
bridge  across  the  river  to  maintain  and  keep 
the  bridge  in  repair  will  require  the  exten- 
sion of  the  bridge  to  the  new  bank  thus 
created,  if  there  is  no  other  limitation  of  the 
franchise;  and  this  will  carry  with  it  a  like 
duty  as  to  the  abutments  and  approaches  to 
the  bridge  to  that  which  devolved  upon  the 
corporation  when  the  bridge  was  first  built. 
Com.  V.  Inhabs.  of  Deei-field,  6  Allen,  449. 

65.  In  Maine,  a  structure  for  the  passage 


474 


NUISANCE. 


Neglect  to  Repair  Highway  or  Bridge. 


Obstructing  River.     Disorderly  House. 


of  travelers  over  a  railroad  where  it  crosses 
ii  highwaj',  is  a  bridge  within  the  statute, 
for  the  want  of  repair  of  which  by  the  rail- 
road company  an  indictment  will  lie.  State 
V.  Inhabs.  of  Gorham,  37  Maine,  451. 

66.  Towns  lying  on  the  Connecticut  and 
Merrimack  rivers  extend  to  the  center  of  the 
river,  and  are  liable  to  indictment  for  neg- 
lecting to  build  the  portion  of  the  bridge 
required  in  their  town  for  a  public  highway 
across  the  river.  State  v.  Canterbury,  28 
New  Hamp.  195. 

67.  Where  the  proprietor  of  a  mill  con- 
structs a  canal  across  a  public  road,  and 
erects  a  bridge  over  the  canal,  he  is  not 
liable  to  indictment  for  suffering  the  bridge 
to  be  out  of  repair.  State  v.  Yarrell,  13  Ired. 
130. 

68.  Neglecting  to  keep  bridge  lighted. 
Where  the  charter  of  a  bridge  company 
provided  that  the  bridge  should  "at  all 
times  be  kept  in  good,  safe,  and  passable 
repair,"  it  was  held  that  the  company  was 
bound  to  keep  the  bridge  artificially  lighted 
during  the  night,  provided  such  lighting 
was  necessary  to  the  safety  and  convenience 
of  the  public,  and  that  a  neglect  of  the  duty 
rendered  the  company  liable  to  indictment 
for  a  nuisance.  Com.  v.  Centr.  Bridge  Corp. 
ISCush.  242. 

6.  Obstructing  river. 

69.  Indictable  at  common  law.  Where 
a  river  up  to  a  certain  point  had  been  fre- 
quently used  by  the  public  as  a  navigable 
river,  and  by  an  act  of  the  Legislature  was 
placed  in  charge  of  public  officers,  and 
worked  by  the  public,  it  was  held  a  public 
highway,  for  the  obstruction  of  which  an 
indictment  would  lie  at  common  law.  State 
V.  Thompson,  2  Strobh.  12. 

70.  The  unauthorized  erection  of  a  bridge 
over  a  public  navigable  river,  thereby  ob- 
structing the  navigation,  is  an  offense  at 
common  law,  on  the  same  principle  upon 
which  the  erection  of  gates  across  a  public 
road  has  been  held  to  be  a  nuisance.  But 
the  Legislature  may  authorize  the  construc- 
tion of  a  bridge  across  navigable  or  tide 
waters,  though  the  navigation  may  thereby 


be  injured.     State  v.  Inhabs.  of  Freeport,48 
Maine,  198. 

71.  Erection  of  dam.  At  common  law, 
an  indictment  cannot  be  maintained  for  a 
nuisance  in  erecting  a  dam  across  a  river 
not  navigable  by  which  fish  are  prevented 
from  ascending  the  river.  Com.  v.  Chapin, 
5  Pick.  199. 

72.  The  statute  of  8  Anne,  ch.  3,  prohibit- 
ing the  setting,  erecting,  or  making  on  or 
across  any  river,  any  incumbrances,  and  en- 
acting that  all  such  incumbrances  which  hin- 
der the  passage  of  fish  are  nuisances,  is  in 
force  in  Massachusetts.  But  a  seine  or  net 
is  not  an  obstruction  within  the  meaning  of 
the  statute.    Com.  v.  Ruggles,  10  Mass.  391. 

73.  In  New  Hampshire,  the  maintenance 
of  dams  without  fishways  in  a  river  not  navi- 
gable, issuing  from  an  inland  lake,  and 
thereby  preventing  the  passage  of  fish  from 
the  sea  to  the  lake  is  a  criminal  offense  at 
common  law ;  and  a  right  to  so  obstruct  the 
river  will  not  be  acquired  against  the  State 
by  twenty  years  of  adverse  user.  State  v. 
Franklin  Falls  Co.  49  New  Hamj}.  240. 

74.  Where  the  charter  of  a  company  per- 
mitted them  to  build  a  dam  across  a  stream 
at  a  certain  place,  it  was  held  that  if  they 
erected  the  dam  higher  up  the  stream,  and 
thereby  obstructed  navigation,  they  were 
liable  for  a  nuisance.  State  v.  Godfrey,  13 
Maine,  361. 

75.  Where  indictable.  An  obstruction 
in  the  Hudson  River  above  low-water  mark, 
is  indictable  in  New  Jersey,  while  obstruc- 
tions below  low-water  mark  can  only  be  pun- 
ished by  proceedings  in  the  courts  of  New 
York,  or  of  the  United  States.  State  v.  Bab- 
cock,  1  Vroom  (30  N.  ,J.)  29.    ■ 

7.  Disorderly  house. 

76.  What  is.  A  place  of  public  resort  in 
which  illegal  practices  are  habitually  carried 
on,  or  which  is  the  habitual  resort  of  thieves, 
drunkards,  prostitutes,  or  other  idle  and 
vicious  persons  who  gather  there  for  the 
Ijurpose  of  gratifying  their  depraved  appe- 
tites, or  to  make  it  a  rendezvous  where  plans 
may  be  concocted  for  depredations  upon  so- 
ciety, is  a  disorderly  house.  State  v.  Wil- 
liams, 1  Vroom  (30  N.  J.)  102. 


NUISANCE. 


475 


Disorderly  House. 


Gaming  House. 


Bowling  Alley. 


77.  To  constitute  a  disorderly  house,  the 
noises  must  be  usual  or  common  occurrences, 
and  must  disturb  the  neighborhood,  and  not 
merely  one  person.  Palfus  v.  State,  3Ci  Ga. 
280. 

78.  In  Iowa,  a  person  is  guilty  of  keeping 
a  disorderly  house  under  the  statute,  whether 
the  lighting,  quarreling,  &c.,  occur  in  it,  or 
on  the  sidewalk  in  front  of  it,  if  it  was  the 
character  of  the  house  which  attracted  the 
disorderly  persons  there  and  which  caused 
the  disturbances.  State  v.  Webb,  25  Iowa, 
235.     See  Cable  v.  State,  8  Blackf.  531. 

79.  Deemed  a  nuisance.  The  habitual 
disturbance  of  a  neighborhood  by  the  noises 
of  disorderly  persons  in  a  house,  is  a  nui- 
sance.    People  V.  Carey,  4  Parker,  238. 

80.  Liability  of  keeper.  The  keeper  of 
a  disorderly  house  is  liable  to  indictment  for 
a  nuisance ;  and  it  need  not  be  alleged  that 
the  house  was  kept  for  gain.  State  v.  Bailey, 
1  Foster,  343. 

81.  An  indictment  for  a  nuisance  may  be 
maintained  against  a  jjerson  for  keeping  a 
house  wherein  offenses  are  committed  that 
are  punishable  by  fine.  Smith  v.  Com.  6  B. 
Mon.  21. 

82.  A  common  tippling  house  is  a  public 
nuisance,  and  the  keeper  liable  to  indict- 
ment. State  V.  Berthol,  6  Blackf.  474 ;  Bloom- 
huff  V.  State,  8  lb.  205. 

83.  Liability  of  landlord.  A  person  who 
aids  and  assists  others  in  keeping  a  house  of 
ill-fame,  is  equally  guilty  in  the  eye  of  the 
law,  with  those  who  actually  hire  and  con- 
trol the  house.    Cora.  v.  Gannett,  1  Allen,  7. 

84.  One  who  leases  a  house,  knowing  that 
it  is  to  be  used  for  the  pui'pose  of  prostitu- 
tion, is  in  law  a  participator  in  the  crime  of 
keeping  the  house.  Smith  v.  State^  6  Gill, 
425. 

85.  Renting  a  house  to  a  woman  of  ill 
fame,  knowing  her  to  be  such,  with  the  in- 
tent that  it  shall  be  used  for  the  purpose  of 
prostitution,  is  indictable  at  common  law. 
Com.  V.  Harrington,  3  Pick.  26;  Jennings  v. 
Com.  17  lb.  80.  Brockway  v.  People,  2  Hill, 
558,  is  not  authority  so  far  as  it  conflicts 
with  this  rule.  People  v.  Erwin,  4  Denio, 
129. 

86.  Mere  non-feasance  on  the  part  of  the 


landlord  cannot  involve  him  in  the  guilt  of 
the  tenant.  The  fact  of  his  being  landlord 
of  a  disorderly  house,  receiving  the  rent  of 
it,  and  that  he  has  power  to  expel  his  tenant 
for  non-payment  of  rent,  does  not  of  itself 
make  him  responsible.  To  make  him  liable, 
he  must  have  known  for  what  purpose  the 
house  was  intended  to  be  used  when  he 
rented  it,  or  afterward  aid,  assist,  or  give 
his  consent  to  its  being  so  kept.     lb. 

87.  One  who  permits  the  promiscuous  as- 
sembling about  his  shop  where  spirituous 
liquor  is  sold,  of  persons  who  make  loud 
noises,  quarrel,  and  swear,  may  be  indicted 
for  keeping  a  disorderly  house.  State  v. 
Thornton,  Busbee,  252. 

8.  Gaming  house. 

88.  Indictable   at    common  law.      The 

keeping  of  a  common  gaminghouse  is  an  in- 
dictable offense  at  common  law,  by  reason  of 
its  tendency  to  bring  together  disorderly 
persons,  to  promote  immorality,  and  to  lead 
to  breaches  of  the  peace.  People  v.  Jack- 
son, 3  Denio,  101. 

89.  Under  an  indictment  at  common  law 
for  keeping  a  gaming  house,  or  house  of  ill- 
fame,  proof  of  the  act  alleged,  fer  se  proves 
a  case  of  common  nuisance.  And  the  same 
is  true  where  the  prosecution  is  under  a  stat- 
ute which  declares  that  all  buildings  used  for 
certain  specified  jjurposes,  shall  be  common 
nuisances.     Com.  v.  Buxton,  10  Gray,  9. 

90.  A  house  in  which  a  faro  table  is  kej)t 
for  the  purpose  of  gambling,  is  a  nuisance, 
without  proof  of  frequent  frays  and  disturb- 
ances there;  and  the  use  of  the  table  is  not 
rendered  lawful  by  a  tax.  State  v.  Doon,  R. 
M.Charlt.  1. 

91.  But  maintaining  a  billiard  room  with- 
out noise  or  disturbance  of  the  neighbor- 
hood, and  without  any  betting,  is  not  a 
public  nuisance,  unless  it  be  in  a  place  where 
it  is  made  a  nuisance  by  statute.  People 
agst.  Sergeant,  8  Cow.  139. 

9.  Bowling  alley. 

92.  Deemed  a  nuisance.  Erections  for 
the  profit  of  the  owner,  adapted  to  sports 
and  amusements  which  are  not  useful,  are 
deemed  nuisances.     This  has  been  held  in 


476 


NUISANCE. 


Bowling  Alley. 


Trial. 


Indictment. 


respect  to  a  bowling  alley  for  gain  and 
common  use,  resorted  to  by  the  public  in 
the  day  and  night  time.  State  v.  Haines, 
30  Maine,  65.  But  the  owner  of  a  bowling 
alley  is  not  liable  for  the  unauthorized  use 
of  it  by  another  person.  H).  In  New  Jer- 
sey, it  has  been  held  that  a  ten-pin  alley, 
kept  for  gain,  in  a  populous  village,  and 
open  to  public  use,  is  not  per  se  a  nuisance. 
State  V.  Hall,  3  Vroom  (32  N.  J.)  158. 

93.  An  indictment  alleged  that  the  de- 
fendant kejot  in  a  public  place,  "  a  certain 
common,  ill-govemed  and  disorderly  room, 
in  which  for  lucre,  the  defendant  procured 
and  suffered  disorderly  persons  to  meet  by 
night  and  day,  and  to  remain  there  drink- 
ing, tippling,  cursing,  swearing,  quarreling, 
making  great  noises,  rolling  bowls  in  and 
at  a  game  called  ten-pins."  Held  that  the 
offense  charged  was  a  public  nuisance. 
Bloomhuff  V.  State,  8  Blackf.  205. 

10.  Tkial. 

94.  By  jury,  right  to.  Keeping  a  bawdy- 
house  being  an  indictable  offense  at  common 
law,  the  Legislature  cannot,  by  classing  it 
"with  those  acts  which  constitute  disorderly 
persons,  withdraw  from  the  accused  the 
right  which  the  Constitution  has  secured  to 
him  of  a  trial  by  jury ;  and  if  he  offer  to 
give  bail  for  his  api^earance  before  the  next 
grand  jury,  it  is  the  duty  of  the  magistrate 
to  take  it.     Warren  v.  People,  3  Parker,  544. 

11.  Indictment. 

95.  Right  to,  not  affected  by  penalty. 

The  right  of  indicting  a  public  nuisance  is 
not  affected  by  a  statute  imposing  a  penalty 
for  the  offense,  unless  there  are  negative 
"words  showing  that  that  is  the  intention. 
Renwick  v.  Morris,  7  Hill,  575. 

96.  "Who  not  liable  to.  Where  an  al- 
leged public  nuisance  is  not  the  natural, 
direct  and  proximate  result  of  the  defend- 
ant's own  act,  but  is  occasioned  by  the  acts 
of  others  so  operating  on  his  acts  as  to  cause 
the  injurious  consequences  complained  of, 
he  is  not  liable.  State  v.  Rankin,  3  South 
Car.  438;  b.  c.  1  Green's  Crim.  Reps.  503. 

97.  Where  a  gate  was  unlawfully  erected 
across  a  public  road,  and  the  owner  of  the 


land  afterward  sold  the  land  to  A.,  who 
never  actually  entered,  but  leased  it  to 
others  who  kept  up  the  gate,  it  was  held 
that  A.  was  not  indictable  for  the  contin- 
uance of  the  nuisance.  State  v.  Pollock,  4 
Ired.  303. 

98.  In  Alabama,  it  was  held  that  to  render 
a  person  liable  under  the  act  of  1836,  for 
an  obstruction  erected  previous  to  the  pas- 
sage of  the  act,  he  must,  subsequent  to  its 
passage,  have  done  something  showing  an 
intention  to  continue  the  nuisance.  Free- 
man V.  State,  6  Porter,  372. 

99.  An  infant,  two  years  of  age,  upon 
whose  land  a  nuisance  is  erected,  is  not  lia- 
ble to  indictment.  People  v.  Townsend,  3 
Hill,  479. 

100.  Liability  of  attorney.  Where  a 
municipal  corporation  agreed  with  the 
owner  of  land,  that  in  consideration  of  a 
release  of  damages  for  widening  a  street, 
the  corporation  would  set  back  the  fence 
and  grade  the  land,  but  afterward  the  cor- 
poration refused  to  do  so,  and  the  attorney 
of  the  ownei-,  the  latter  being  an  infant  and 
married  woman,  replaced  the  fence  in  its 
former  position  so  as  to  obstruct  the  street, 
it  was  held  that  the  attorney  was  liable  to 
indictment  for  a  nuisance.  Com.  v.  Smyth, 
14  Gray,  33. 

101.  Husband  and  wife  may  be  jointly 
indicted,  and  both  be  convicted  of  keeping 
a  common  nuisance,  by  maintaining  a  house 
for  the  illegal  sale  of  intoxicating  liquors. 
Com.  V.  Tryon,  99  Mass.  442 ;  or  they  may 
be  prosecuted  severally.  Com.  v.  Heffron, 
102  lb.  148. 

102.  Landlord  and  tenant  In  New 
York,  it  has  been  held  that  an  indictment 
for  a  misdemeanor  in  letting  a  house  with 
the  intent  that  it  shall  be  kept  for  the 
purposes  of  public  prostitution,  and  which 
is  accordingly  kept  for  that  jjurpose,  should 
charge  the  defendant  as  the  keeper  of  a 
common  bawdy-house  in  the  ordinary  form  ; 
and  the  tenant  who  lives  in  and  conducts 
the  house,  may  be  joined  with  the  landlord 
in  the  indictment.  People  v.  Irwin,  4  Denio, 
129. 

103.  Corporation.  An  indictment  for  a 
nuisance   will    lie    against    a  corporation. 


NUISANCE. 


477 


Indictment. 


Btate  V.  Morris  &  Essex  R.  R.  Co.  3  Zabr.  360. 
An  information  against  a  railroad  company, 
for  neglecting  to  ring  their  bell  or  blow  their 
whistle  when  about  to  pass  a  highway,  is 
sufficient  which  designates  the  respondent 
as  "  The  Vt.  Cent.  R.  R.  Co.,  a  corporation 
existing  under  and  by  force  of  the  laws  of 
this  State,  duly  organized  and  doing  busi- 
ness," without  alleging  when  and  where 
the  existence  of  the  company  commenced. 
State  V.  Vt.  Cent.  R.  R.  Co.  28  Yt.  583. 

104.  Averment  of  time.  An  indictment 
for  letting  a  house  for  the  jjurposes  of  pros- 
titution, must  contain  an  averment  of  the 
time  of  the  commission  of  the  offense,  and 
state  the  name  of  the  person  to  whom  the 
lease  was  made,  or  that  such  person  was  to 
the  jurors  unknown,  and  that  the  lease  was 
received  and  accepted  by  the  individual  to 
whom  it  was  made.  Com.  v.  Moore,  11 
Ciish.  600.  But  see  Com.  v.  Harrington,  3 
Pick.  26. 

105.  Averment  of  place.  The  indict- 
ment, in  describing  the  place  of  the  alleged 
nuisance,  must  be  certain  to  a  common  in- 
tent, and  allege  that  it  is  in  the  county. 
State  V.  Sturdivant,  21  Maine,  9.  But  where 
an  indictment  for  a  nuisance  caused  by  a 
mill  and  dam  near  a  highway,  did  not  de- 
scribe the  mill  or  state  that  it  was  in  the 
county,  it  was  held  that  the  indictment  was 
sufficient  after  verdict.  Stephen's  Case,  2 
Leigh,  759.  And  where  a  nuisance  was 
alleged  to  have  been  committed  in  a  certain 
town,  and  a  part  of  the  nuisance  was  in  fact 
committed  in  another  town,  it  was  held 
that  the  offense  was  sufficiently  charged. 
State  V.  Godfrey,  12  Maine,  361. 

106.  An  indictment  for  neglecting  to  repair 
a  highway  must  state  the  town  in  which 
the  road  lies.  Com.  v.  Inhabs.  of  North 
Brookfield,  8  Pick.  463. 

107.  An  indictment  for  keeping  a  disor- 
derly house  need  not  state  the  precise  local- 
ity where  the  offense  was  committed.  If  the 
city  or  town  where  the  building  or  tenement 
is  situated  be  distinctly  set  out,  no  further 
averment  of  place  is  required.  Com.  v. 
Welsh,  1  Allen,  1 ;  Com.  v.  Gallagher,  Tb.  592. 

108.  In  indictments  for  common  nuisances, 
it  is  sufficient  to  name  the  place,  as  a  certain 


building,  a  certain  disorderly  house,  a  cer- 
tain shop,  a  certain  common  gaming  house,, 
&c.,  without  further  description.  Com.  v. 
Skelley,  10  Gray,  464. 

109.  An  indictment  for  a  nuisance  in 
erecting  and  continuing  a  building  on  a 
highway  need  not  state  what  particular  part 
of  the  building  is  an  encroachment.  State 
V.  Atherton,  16  New  Hamp.  203. 

110.  An  indictment  for  obstructing  a 
navigable  stream  must  name  the  stream, 
state  that  it  is  navigable  where  it  is  ob- 
structed, describe  the  place  of  obstruction, 
allege  that  boats  cannot  pass  it,  and  state 
that  the  bed  of  the  stream  has  not  been  sold 
by  the  Government  of  the  United  States. 
Cox  V.  State,  3  Blackf.  193. 

111.  An  indictment  for  a  nuisance  in 
maintaining  a  certain  mill-dam  in  and  about 
and  across  a  certain  stream  of  water  in  said 
county,  called  "Elkhart  river,"  is  bad  for 
uncertainty.  The  land  on  which  the  dam 
was  constructed  should  have  been  described, 
or  reference  made  to  known  objects  near  it. 
Wood  V.  State,  5  Ind.  433. 

112.  Where  an  indictment  for  a  nuisance 
caused  by  a  mill  and  dam  near  a  highway, 
omitted  to  describe  the  mill  or  to  state  that 
it  was  in  the  county,  it  was  held  that  the 
defect  was  cured  by  the  verdict.  Stephen's 
Case,  2  Leigh,  759. 

113.  An  indictment  for  obstructing  a 
river,  and  thereby  overflowing  a  highway, 
need  not  describe  the  length  and  breadth  of 
the  ovei-flow  on  the  highway.  Resp.  v. 
Arnold,  3  Yeates,  417. 

114.  Description  of  highway.  An  indict- 
ment against  a  town  for  a  defective  highway 
need  not  state  the  width  of  the  highway,  or 
allege  the  authority  by  which  it  is  laid  out. 
State  V.  Inhabs.  of  Madison,  63  Me.  546. 

115.  Although  in  indictments  for  not  re- 
pairing highways,  and  for  nuisances  therein^ 
it  is  not  necessary  to  set  out  the  termini,  yet 
if  they  are  set  out,  they  must  be  proved  as 
laid,  and  any  material  variance  will  be  fatal. 
State  V.  Northumberland,  40  New  Hamp. 
156. 

116.  Where  in  an  indictment  for  not  mak- 
ing a  highway  pursuant  to  an  order  of  court, 
the  highway  was  described  by  courses  and 


478 


NUISANCE. 


Indictment. 


distances  only,  and  in  the  description  the 
signs  of  degrees  and  minutes  were  used  in- 
stead of  words,  it  was  held  insufficient  on 
demurrer.     State  v.  Jericho,  40  Vt.  121. 

117.  An  indictment  described  the  place  of 
an  alleged  nuisance  as  "  a  certain  common 
public  highway  and  landing  place  in  the 
town  of  P.,  in  the  county  of  N.,  commonly 
known  by  the  name  of  The  Common,  lying 
west  of  the  highway,  leading  through  a  por- 
tion of  said  P.  from  the  town  of  M.,  in  said 
county,  to  B.  Ferry,  and  extending  from  the 
highway  to  the  shore  in  a  westerly  direc- 
tion." The  evidence  produced  was  the  ob- 
struction of  a  common  which  lay  to  the 
northwest  and  north  of  the  highway.  Held 
that  the  indictment  was  not  sustained.  State 
V.  Peckham,  9  R.  I.  1. 

118.  Description  of  building.  In  Maine, 
an  indictment  under  the  statute  (R.  S.  ch. 
17,  §  1)  for  a  nuisance  in  keeping  a  liquor 
shop,  need  not  allege  that  the  shop  was  "  a 
house  of  ill-fame,"  nor  that  it  "  was  resorted 
to,"  instead  of  "was  used,"  nor  state  the 
names  of  persons  to  whom  liquor  was  sold, 
nor  describe  the  place,  except  by  naming  the 
town  and  county.  State  v.  Lang,  63  Maine, 
215. 

119.  Ownership  of  property.  In  Ver- 
mont, an  indictment  under  the  statute 
(Comp.  Stat.  204)  for  obstructing  railroad  en- 
gines and  cars,  which  alleges  that  they  are 
the  property  of  a  certain  railroad  company, 
is  insufficient ;  the  expression  '■  railroad  com- 
pany "  not  necessarily  importing  that  it  is  a 
corporation,  and  the  court  not  being  able  to 
take  judicial  notice  of  the  fact.  State  v. 
Mead,  27  Vt.  722. 

120.  Statement  of  facts  constituting  of- 
fense. As  a  house  kept  for  tippling  and 
whoring  is  not  a  nuisance  per  se,  but  only 
becomes  so  by  reason  of  the  public  being  af- 
fected by  it,  an  indictment  charging  it  to  be 
a  nuisance  must  allege  the  facts  making  it 
such;  as  that  it  is  in  a  public  place,  or  that 
people  reside  near  it.  Mains  v.  State,  42 
Ind.  327;  Leary  v.  State,  39  lb.  544. 

121.  Where  the  defendant  is  charged  with 
keeping  a  disorderly  house,  the  acts  of  dis- 
order must  be  specified.  Frederick  v.  Com. 
4  B.  Men.  7.     An  indictment  which  alleged 


that  the  defendant  kept  a  disorderly  and  ill- 
governed  house,  and  unlawfully  caused  and 
procured,  for  his  own  lucre  and  gain,  certain 
persons,  as  well  men  as  women  of  evil  name 
and  fame,  and  of  dishonest  conversation,  to 
frequent  and  come  together  in  his  said  houso 
at  unlawful  times,  was  held  sufficiently  de- 
finite. Com.  V.  Stewart,  1  Serg.  &  Rawle, 
342. 

122.  Where  an  indictment  for  a  nuisance 
in  keeping  a  disorderly  house  alleged  vari- 
ous purposes  for  which  the  premises  were 
used,  constituting  the  means  by  which  the 
nuisance  was  created,  it  was  held  that  the 
indictment  was  not  bad  for  duplicity,  al- 
though each  of  the  purposes  was  criminal  in 
its  nature.     Com.  v.  Kimball,  7  Gray,  328. 

123.  An  indictment  which  alleges  that  the 
defendant  kept  and  maintained  a  building 
used  as  a  house  of  ill-fame  "  to  the  common 
nuisance  of  all  good  citizens,"  &c.,  is  suffi- 
cient, without  averring  that  he  kept  and 
maintained  a  common  nuisance.  Wells  v. 
Com.  12  Gray,  326. 

124.  An  indictment  is  not  objectionable  as 
embodying  distinct  offenses,  which  charges 
the  keeping  of  a  bawdy-house,  a  tippling 
house,  and  a  dancing  house,  to  the  nuisance 
of  the  public;  and  the  defendant  may  be 
convicted  if  the  jury  find  that  "  the  house 
was  conducted  in  such  a  manner  as  to  dis- 
turb and  disquiet  the  neighbors,  or  if  its 
business  was  so  carried  on  as  to  tend  to  the 
corruption  of  the  public  morals."  People 
V.  Carey,  4  Parker,  238. 

125.  An  indictment  set  forth  that  ''on  the 
first  day  of  June,  and  on  divers  other  days 
and  times  between  that  day  and  the  first 
day  of  October  then  next  ensuing,  the  de- 
fendants knowingly  kept  and  maintained 
a  certain  common  nuisance,  to  wit,  a  certain 
building,  to  wit,  a  house  of  ill-fame,  situ- 
ate," &c.,  "  and  that  the  said  defendants  in 
said  house,  for  their  own  lucre  and  gain, 
certain  persons,  as  well  men  as  women  of 
evil  name  and  fame  and  dishonest  conversa- 
tion to  frequent  and  come  together,  did  then 
unlawfully  and  willfully  cause,  permit  and 
procure,  and  said  men  and  women  in  said 
house,  as  well  in  the  night  as  in  the  day, 
tlieu  on  said  other  days  and  times  did  sufier 


NUISANCE. 


479 


Indictment. 


and  permit  to  be  and  to  remain  whoring, 
to  the  common  nuisance,"  &c.  Held  not 
bad  for  duplicity.  Com.  v.  Hart,  10  Gray, 
465. 

12S.  An  indictment  for  a  nuisance  at  com- 
mon law  is  good  which  alleges  that  "  the  de- 
fendants, on  a  day  named,  set  up,  erected 
and  maintained  certain  buildings,  and  on 
said  day,  and  on  divers  days  and  times 
between  that  day  and  the  day  of  the  finding 
of  the  indictment,  did  in  said  buildings  un- 
lawfully use  and  employ,  decompose  and 
combine  large  quantities  of  acid,  guano,  tar, 
oil,  bone  and  dead  bodies,  and  other  nox- 
ious and  offensive  substances  in  the  manufac- 
ture of  acids,  colors,  chemicals  and  chemical 
products,  by  means  whereof  divers  noxious, 
offensive  and  unwholesome  smokes,  gases, 
smells  and  stenches  were  issued  and  emitted 
from  said  buildings  during  all  the  time 
aforesaid,  so  that  the  air  then  and  there 
was  thereby  filled  and  impregnated  there- 
with, and  rendered  corrupt,  offensive  and 
unwholesome,  to  the  great  damage  and 
common  nuisance  of  all  persons  then  and 
there  being."  Com.  v.  Rumford  Chemical 
Works,  16  Gray,  231.  As  to  what  is  a  suffi- 
cient indictment  charging  a  common-law 
nuisance,  see  Reed  v.  People,  1  Parker,  481. 

127.  A  count  in  an  indictment  for  nui- 
sance which  alleges  that  swine  were  kept  in 
a  certain  pen  and  yard  near  to  the  public 
highway,  and  that  they  were  fed  with  offal, 
&c.,  does  not  charge  two  offenses.  State  v. 
Payson,  37  Maine,  361. 

128.  An  indictment  for  a  continuing  nui- 
sance need  not  charge  that  it  is  such.  State 
V.  Hall,  21  Maine,  84.  But  the  indictment 
must  set  out  all  of  the  facts.  State  v.  Brown, 
16  Conn.  154. 

129.  InsuflBcient  averment.  An  indict- 
ment which  charges  that  the  defendant 
suffered  and  permitted  an  indecent  and  dis- 
orderly house  to  be  kept  on  his  premises,  is 
bad  for  uncertainty  in  not  showing  that  the 
house  was  maintained  by  the  defendant,  or 
that  he  had  leased  it  to  another  knowing 
the  object  for  which  it  was  to  be  used,  or 
that  the  house  was  under  the  defendant's 
control.     Taylor  v.  Com.  1  Duvall,  Xy.  160. 

130.  An  indictment  alleged  that  the  tle- 


fendant  on  a  specified  day,  at  L.,  "unlaw- 
fully did  keep  and  maintam  a  certain  com- 
mon ill-governed  and  disorderly  tenement 
there  situate."  Held  that  the  indictment 
did  not  describe  the  offense  of  keeping  a 
disorderly  house  or  any  other  offense.  Com. 
V.  Wise,  110  Mass.  181;  s,  c.  3  Green's 
Crim.  Reps.  264. 

131.  A  complaint  alleged  that  the  defend- 
ants with  force  and  arms  were  disturbers 
and  breakers  of  the  peace,  to  the  great  dis- 
turbance of  divers  citizens.  Held  that  no 
offense  was  charged.  It  shouM  have  been 
alleged  that  the  defendants  were  disturbers, 
&c.,  to  the  great  damage  and  common  nui- 
sance of  all  of  the  citizens  of  the  State  then 
inhabiting,  being  and  residing,  &c.  Com. 
V.  Smith,  6  Cush.  80. 

132.  An  indictment  charging  a  party  with 
neglect  to  make  or  repair  a  highway,  does 
not  charge  a  neglect  to  build  and  repair  a 
bridge.  So,  a  count  is  insufficient  which 
alleges  the  laying  out  of  a  new  road  and  an 
order  on  the  town  to  build  their  part,  which 
they  neglected  to  do,  without  alleging  that 
the  road  was  bad  or  needed  making,  or  was 
not  passable,  and  omitting  to  the  common 
nuisance,  &c.  State  v.  Canterbury,  28  New 
Hamp.  195. 

133.  The  charter  of  a  railroad  company 
authorized  them  to  construct  bridges  across 
tide  waters  and  navigable  rivers,  provided 
they  did  not  prevent  the  navigating  said 
waters.  An  indictment  against  them  al- 
leged that  they  did  "  unlawfully  and  in- 
juriously obstruct  and  impede  without  legal 
authority  the  passage  of  said  navigable 
river  by  erecting  a  bridge  across  said  river, 
which  bridge  is  so  constructed  as  to  prevent 
the  navigating  said  river,"  &c.,  "by  means 
whereof  the  passage  of  said  river  hath  been 
obstructed  and  impeded,  and  still  is  ob- 
structed and  imj)eded,"  &c.,  without  alleg- 
ing that  the  bridge  prevented  the  navigating 
the  river.  Held  bad.  State  v.  Portland, 
&c.  R.  R.  Co.  57  Maine,  402. 

134.  Duplicity.  An  indictment  which 
charges  the  maintenance  of  a  stone  building 
overhanging  a  public  street,  and  liable  and 
threatening  to  fall  into  the  same,  to  the 
great  damage  of  people  passing  along  the 


480 


NUISANCE. 


Indictment, 


street,  and  also  the  permitting  to  remain 
in  said  building  large  quantities  of  filth 
emitting  offensive  stenches  dangerous  to 
public  health,  is  bad  for  duplicity.  Chute 
V.  State,  19  Minn.  271. 

135.  Averment  of  defendant's  duty  and 
liability.  An  indictment  for  permitting  a 
public  bridge  to  become  ruinous  must  state 
how  the  defendant  became  liable  to  make 
repairs.     State  v.  King,  3  Ired.  411. 

136.  An  information  against  the  trustees 
of  a  canal  for  a  nuisance  in  neglecting  to 
keep  a  bridge  in  repair,  was  held  bad  in  not 
alleging  that  the  bridge  crossed  the  canal, 
or  that  it  was  the  defendant's  duty  to  keep 
it  in  repair,  and  because  it  did  not  show  by 
what  right  they  became  possessed  of  the 
bridge,  and  how  it  became  their  duty  to 
keep  it  in  repair.  Butler  v.  State,  17  Ind. 
450. 

137.  An  indictment  against  a  bridge  com- 
pany for  a  public  nuisance  was  held  suffi- 
cient which,  after  setting  forth  the  act  of 
incorporation,  the  building  and  use  of  the 
bridge,  alleged  that  the  defendants  were 
bound  "  to  keep  and  maintain  the  same  in 
such  a  condition  as  to  render  the  same  safe 
and  convenient  for  travelers, "  &c. ;  that  the 
defendants,  "  regardless  of  their  duty  in  this 
behalf,  negligently  and  willfully  suffered  and 
permitted  said  bridge  to  be  and  remain  in 
such  a  condition  as  to  render  it  unsafe  and 
inconvenient  for  travelers,  by  neglecting  to 
keep  the  same  properly  and  suitably  lighted 
in  the  night  time,  to  the  great  damage  and 
common  nuisance,"  &c.  Com.  v.  Centr. 
Bridge  Corp.  13  Cush.  243. 

138.  An  indictment  against  a  railroad 
company  for  the  unlawful  and  willful  neg- 
lect to  erect  and  maintain  fences  on  the  sides 
of  its  road  must  aver  that  it  was  the  duty 
of  the  company  to  erect  and  maintain  the 
fences.  People  v.  N.  Y.  Cent.  R.  R.  Co.  5 
Parker,  195. 

139.  In  Maine,  under  the  statute  (R.  S. 
ch.  51,  §15),  which  provides  that  "railroads 
may  cross  highways  in  the  line  of  the  road,'' 
but  that  "the  conditions  and  manner  of 
crossing  are  to  be  first  determined  in  writ- 
ing by  the  county  commissioners,"  an  indict- 
ment against  a  railroad  company  for   erect- 


ing and  maintaining  a  nuisance  in  laying- 
their  tra<^k  across  a  highway,  which  does 
not  allege  that  it  crosses  the  highway  in  a 
manner  not  determined  by  the  county  com- 
missioners, is  fatally  defective.  State  v.. 
Portland,  &c.,  R.  R.  Co.  58  Maine,  46. 

140.  Under  an  indictment  for  not  keeping 
in  repair  a  certain  turnpike  which  defend- 
ant and  another  had  been  authorized  to  con- 
struct by  act  of  Legislature,  the  court  cannot 
take  judicial  notice  of  the  charter,  unless  it 
is  set  out;  and  if  the  indictment  alleges  that 
the  defendant  alone  accepted  the  charter, 
erected  toll-gates,  and  took:  toll,  but  does- 
not  aver  that  the  charter  authorized  him  to 
accept  alone,  or  require  him  to  keep  the 
road  in  repair,  it  will  be  fatally  defective  on 
demurrer.     Moore  v.  State,  26  Ala.  88. 

141.  An  indictment  for  a  nuisance  in 
keeping  fifty  barrels  of  gunpowder  in  a  cer- 
tain building  near  the  dwelling-house  of 
divers  good  citizens,  and  near  a  certain  pub- 
lic street,  was  held  insufficient  in  not  alleg- 
ing that  it  was  negligently  and  improvi- 
dently  kept.     People  v.  Sands,  1  Johns.  78. 

142.  Guilty  intent.  In  Massachusetts,  an 
indictment  under  the  statute  (Genl.  Stats. 
ch.  63,  §  108),  which  alleged  that  the  de- 
fendant, on  the  fifth  of  March,  intending  to 
obstruct  an  engine  passing  upon  a  railroad, 
did,  on  the  first  of  the  same  month,  place  a 
rail  across  the  track,  without  averring  that 
the  act  was  done  with  a  criminal  intent,  or 
that  the  intent  charged  was  accompanied  by 
any  act,  was  held  insufficient.  Com.  v. 
Bakeman,  105  Mass.  53. 

143.  An  indictment  for  a  nuisance  in  sell- 
ing and  furnishing  unwholesome  water  to 
an  entire  community  must  either  allege  that 
the  defendant,  his  agents  or  servants  im- 
parted to  the  water  its  unwholesome  quality, 
or  that  he  knew  it  was  unwholesome.  Stein 
V.  State,  37  Ala.  133. 

144.  In  Massachusetts,  an  indictment 
under  the  statute  (R.  S.  ch.  130,  §  8),  for 
keeping  a  house  of  ill-fame,  resorted  to  for 
the  purposes  of  prostitution  and  lewdness, 
need  not  allege  that  the  defendant  kept  the 
house  for  lucre,  or  that  it  was  resorted  to  by 
divers  persons,  men  as  well  as  women.  Com. 


NUISANCE. 


481 


Indictment. 


Evidence. 


V.  Ashley,  2  Gray,   350 ;  Com.  v.  Wood,  97 
Mass.  225, 

145.  An  iudictment  against  a  railroad 
company  for  maintaining  a  nuisance  need 
not  contain  the  word  "  unlawfully,"  the 
words  "injuriously  and  wrongfully  "  being 
sufficient.  State  v.  Vt.  Cent.  R.  R.  Co.  27 
Vt.  103. 

146.  Conclusion.  An  indictment  for  a 
nuisance  concluding  "  to  the  common  nui- 
sance of  the  commonwealth  citizens,"  was 
held  bad.  It  should  have  concluded  to  the 
common  nuisance  of  all  the  citizens  of  the 
commonwealth  who  resided  in  that  place, 
or  had  to  pass  it.  Com.  v.  Farris,  5  Rand. 
691.     See  Com.  v.  Smith,  6  Cush.  80. 


12.  Evidence. 

147.  Place.  Where  a  nuisance  is  charged 
to  be  situated  on  a  particular  tract  of  land, 
the  prosecution  must  prove  the  location  as 
alleged.  W^ertz  v.  State,  42  Ind.  161 ;  s.  c. 
2  Green's  Crim.  Reps.  681. 

148.  An  indictment  charged  the  obstruc- 
tion of  a  public  landing.  The  proof  showed 
that  the  obstruction  was  in  a  road  leading 
to  the  landing  one  hundred  yards  from  it. 
Held  that  the  variance  was  ground  for  a  new 
trial.     State  v.  Graham,  15  Rich.  310. 

149.  Where,  on  the  trial  of  an  indictment 
for  obstructing  a  highway,  a  local  descrip- 
tion sufficient  to  identify  .and  fix  the  precise 
point  of  obstruction  is  given  as  well  as  the 
termini  of  the  road,  the  latter  may  be  dis- 
regarded; and  proof  that  a  road  existed  at 
the  place  of  obstruction  is  alone  necessary. 
But  when  the  allegation  is  general  that  a 
road  leading  from  one  place  to  another  has 
been  obstructe:!,  its  existence  between  the 
points  named  must  be  proved  as  a  matter  of 
essential  description.  Houston  v.  People, 
63  111.  185. 

150.  A  variance  between  the  indictment 
and  the  evidence  as  to  the  precise  situation 
of  a  dam,  by  means  of  which  the  defendant 
caused  a  nuisance  in  a  highway  by  overflow- 
ing the  same,  and  rendering  it  impassable, 
is  not  material,  the  gist  of  the  offense  not 
being  the  erection  of  the  dam,  but  the 
obstruction  of  the  highway.  The  nuisance 
being  in  New  Hampshire,  it  is  not  important 

31 


that  the  dam  is  in  Maine.     State  v.  Lord,  16 
New  Hamp.  357. 

151.  An  indictment  for  a  nuisance  in 
maintaining  a  ruinous  building,  alleged  that 
the  building  was  situated  upon  lots  one  and 
two,  in  block  three.  It  was  proved  that  the 
building  was  in  part  on  lots  one,  two,  and 
three,  in  block  three.  Held  a  case  of  re- 
dundancy of  proof,  and  not  a  variance. 
Chute  V.  State,  19  Minn.  271 ;  s.  c.  1  Green's 
Crim.  Reps.  571. 

152.  The  offense  of  keeping  a  house  of 
ill-fame  is  local,  and  must  be  proved  to  have 
been  committed  in  a  particular  town,  and 
not  merely  within  the  county.  State  v. 
Nixon,  18  Vt.  70. 

153.  In  order  to  sustain  an  indictment  for 
keeping  a  disorderly  house,  it  is  not  neces- 
sary to  prove  that  the  whole  building  was 
used  for  the  unlawful  purpose.  State  v. 
Ganty,  46  New  Hamp.  61.  Evidence  that 
a  single  room  was  so  used,  is  sufficient. 
Com.  V.  Bulmaii,  118  Mass.  456. 

154.  View  of  premises.  In  Minnesota, 
under  the  statute  (Gen.  Stats,  ch.  114,  §  10), 
the  propriety  of  allowing  the  jury  to  view 
an  alleged  nuisance  is  in  the  discretion  of  the 
court.  Chute  v.  State,  19  Minn.  271 ;  s.  c.  1 
Green's  Crim.  Reps.  571.  Evidence  to  show 
the  condition  of  the  premises  after  the  find- 
ing of  the  indictment,  is  not  admissible. 
Taylor  v.  People,  6  Parker,  347. 

155.  Owner  of  property.  Where  an  in- 
dictment charged  the  obstructing  of  the  en- 
gines of  a  railroad  company,  and  the  evi- 
dence was  that  the  true  name  was  railroad 
corporation,  it  was  held  that  the  variance 
was  fatal.     Com.  v.  Pope,  12  Cush.  272. 

156.  Person  committing  injury.  On  the 
trial  of  an  indictment  for  a  nuisance,  it  is 
not  sufficient  merely  to  show  that  the  de- 
fendant is  the  owner  of  the  land ;  but  it 
must  be  proved  that  he  either  erected  or 
continued  the  nuisance,  or  in  some  way 
sanctioned  its  erection  or  ccmtinuance.  Peo- 
ple v.  Townsend,  3  Hill,  479. 

157.  In  Massachusetts,  on  the  trial  of  an 
indictment  under  the  statute  (of  1849,  ch. 
49),  for  keeping  a  disorderly  house,  to  the 
common  nuisance,  &c.,  it  need  not  be  proved 
that  the  house  was  used  by  the  defendant, 


482 


IN^UISANCE. 


Evidence. 


or  by  whom  it  was  used,  or  that  it  was  used 
for  all  of  the  purposes  alleged.  Com.  y. 
Kimball,  7  Gray,  328. 

158.  Acts  constituting  offense.  The 
keeping  of  a  disorderly  house  must  be 
shown  as  a  fact,  and  not  by  evidence  of 
reputation.  State  v.  Foley,  45  New  Hamp. 
466.  It  is  not  therefore  competent  to  prove 
that  the  house  was  a  matter  of  general  com- 
plaint in  the  neighborhood.  Com.  v.  Stew- 
art, 1  Serg.  &  Rawle,  342. 

159.  On  the  trial  of  an  indictment  for 
keeping  a  disorderly  house,  it  is  correct  to 
charge  the  jury  that  to  authorize  a  convic- 
tion, it  must  be  proved  that  the  house  was 
kept  in  a  manner  to  annoy  and  disturb  the 
persons  living  near  or  having  occasion  to 
pass  by  it ;  that  it  need  not  be  proved  that 
all  of  such  persons  were  thus  annoyed ;  and 
that  it  was  competent  to  show  that  large 
numbers  of  disorderly  persons  were  seen 
going  in  and  out,  and  conducting  them- 
selves in  a  disorderly  manner,  though  the 
witnesses  did  not  see  or  hear  what  was 
done  inside  the  house.  Com.  v.  Davenport, 
2  Allen,  299. 

160.  In  Ohio,  where  a  person  w^as  indicted 
for  keeping  a  disorderly  tavern,  the  journal 
of  the  court,  with  the  entering  or  granting 
a  license,  was  held  sufficient  proof  that  the 
defendant  kept  a  tavern.  Baldwin  v.  State, 
6  Ohio,  15. 

161.  On  the  trial  of  an  indictment  for 
keeping  a  disorderly  house,  after  proof  of 
specific  acts,  other  acts  not  specified,  which 
do  not  amount  to  a  distinct  offense,  and  for 
which  a  distinct  pi'osecution  will  not  lie,  are 
admissible  in  evidence  under  the  general 
charge.    Frederick  v.  Com.  4  B.  Mon.  7. 

162.  In  Connecticut,  on  the  trial  of  an 
information  for  the  violation  of  the  statute 
(of  1843,  ch.  20),  prohibiting  houses  of  ill- 
fame,  the  prosecution  must  prove — 1st,  that 
the  general  reputation  of  the  house  was  that 
of  a  bawdy-house ;  2d,  that  it  was  such  in 
fact.  To  show  the  character  of  the  house, 
evidence  is  admissible  to  prove  that  it  was 
reputed  to  be  a  house  of  ill-fame  previous 
to  the  enactment  of  the  statute.  Cadwell 
V.  State,  17  Conn.  467 ;  approved  in  State  v. 
Blakesley,  38  Conn,  523. 


163.  Land  on  Charleston  Neck  was  dedi- 
cated by  the  owners  to  the  public,  for  an 
open  square.  The  defendants,  who  were 
commissioners  of  roads  on  the  Neck,  in- 
closed the  square  with  a  railing,  with  gates 
at  convenient  distances.  Being  indicted  for 
a  nuisance,  it  was  held,  that  the  prosecution 
must  prove  that  the  defendants  had  violated 
the  public  uses  of  the  square,  and  that  in 
the  absence  of  such  proof,  the  verdict 
against  them  must  be  set  aside,  and  a  new 
trial  granted.  State  v.  Comm'rs,  3  Hill, 
S.  C.  149. 

164.  Proof  must  tend  to  support  cliarge. 
On  a  trial  for  erecting  and  maintaining  a 
powder  house,  and  keeping  therein  a  large 
quantity  of  powder  near  a  city,  a  witness 
for  the  prosecution  testified  that  he  had 
been  in  the  infantry  and  artillery  service  of 
the  United  States  for  three  years,  and  a  por- 
tion of  the  time  had  charge  of  an  ordnance 
bureau ;  and  he  was  asked,  what  was  the 
ordinary  mode  of  constructing  powder  mag- 
azines. Held  that  the  question  was  imma- 
terial and  incompetent.  Bradley  v.  People, 
56  Barb.  72,  Mullin,  J.,  dissenting. 

165.  An  indictment  under  a  statute  in 
respect  to  nuisances,  prohibiting  the  erec- 
tion of  a  building  or  other  obstruction  in 
a  highway,  charged  that  the  defendant  erect- 
ed a  store  in  the  highway,  by  which  the 
passage  of  travelers  was  obstructed.  It  was 
proved  that  the  defendant  purchased  the 
store  thirty  years  after  it  was  built,  and  neg- 
lected to  remove  it  from  the  highway  when 
notified  to  do  so  by  a  committee  of  the 
town.  Held  that  the  variance  was  fatal. 
State  V.  Brown,  16  Conn.  54. 

166.  On  the  trial  of  an  indictment  for 
maintaining  a  ruinous  building,  the  court 
admitted  in  evidence,  against  the  defend- 
ant's objection,  the  record  of  the  proceed- 
ings of  the  city  council  in  which  the  build- 
ing was  situated,  showing  that  at  a 
meeting  holden  on  a  certain  day  the  de- 
fendant was  present  as  an  alderman,  and 
that  a  resolution  was  then  passed  declaring 
the  building  unsafe,  and  a  public  nuisance. 
Held  that  although  the  testimony  was  un- 
objectionable, if  its  only  eflect  was  to  show 

'  notice  and  knowledge  on  the  defendant's 


NUISANCE. 


483 


Evidence. 


part,  of  the  condition  of  the  building,  yet, 
as  it  might  have  influenced  the  minds  of  the 
jury  in  reference  to,  the  main  question 
whether  or  not  a  nuisance  existed,  its  ad- 
mission was  error.  Chute  v.  State,  19  Minn. 
271 ;  s.  c.  1  Green's  Crim.  Reps.  571. 

167.  An  indictment  alleged  that  the  de- 
fendant, "  near  a  public  street  and  common 
highway,  and  also  near  the  dwelling-houses 
of  divers  citizens  there  situate,  did  unlaw- 
fully erect  and  maintain  a  certain  buildmg 
for  the  purpose  of  making  neatsfoot  oil,  and 
did  unlawfully  place  and  maintain  in  said 
building  divers  furnaces,  stoves,  caldrons, 
five  coppers,  and  five  boilers,  for  the  pur- 
pose of  boiling  and  trying  putrid  meat, 
bones,  heads,  feet,  «&c.,  by  reason  whereof 
noisome  and  unwholesome  smoke  and  va- 
pors were  emitted  and  issued,  to  the  great 
damage  and  common  nuisance,"  &c.  It  was 
proved  that  the  defendant  kept  hogs  in  a 
yard  on  two  sides  of  his  oil-works,  and  that 
the  bones  after  being  used  in  the  works, 
were  thrown  into  the  hog-yard.  It  was  also 
shown  that  the  emptying  of  the  kettles,  and 
the  carting  away  of  the  bones,  created  a 
stench.  Held,  that  as  the  nuisance  arising 
from  the  hog-yard  and  the  carting  away  of 
the  bones,  was  not  charged  in  the  indict- 
ment, the  evidence  was  improper.  Com.  v. 
Brown,  13  Mete.  365. 

168.  Under  an  indictment  against  a  town 
for  a  defect  in  a  highway,  it  was  held  that  as 
the  averment  that  the  defect  had  been  .con- 
tinued "without  any  sufficient  railing  or 
fence,  and  without  any  sufficient  light  hung 
out  or  placed  in  the  night  time,  to  prevent 
the  injury  and  damage  that  might  happen," 
was  not  necessary,  it  need  not  be  proved. 
State  v.  Bangor,  30  Maine,  341, 

169.  An  indictment  for  a  nuisance  in 
erecting  and  maintaining  a  dam,  charged 
that,  by  reason  of  the  dam,  the  animal  and 
vegetable  substances  brought  down  the 
stream  were  collected  and  accumulated,  and 
became  offensive.  Held  supported  by  proof 
that  the  injury  resulted  from  the  alternate 
rise  and  fall  of  water  in  the  pond,  and  from 
the  action  of  the  sun  upon  the  vegetables 
growing  on  the  margin.  People  v.  Town- 
send,  3  Hill,  479. 


170.  An  indictment  for  horse-racing  on  a 
public  road,  is  sustained  by  proof  of  racing 
with  mules.  Goldsmith  v.  State,  1  Head, 
154. 

171.  Presumptions.  The  record  of  the 
laying  out  of  a  highway,  dated  thirty-nine 
years  previous,  is  admissible  in  evidence  as 
presumptive  evidence  that  the  landowners 
received  due  notice  that  compensation  was 
awarded  them,  and  that  the  road  was  for 
the  public  use;  and  proof  that  highway 
surveyors,  in  the  execution  of  the  warrants 
committed  to  them,  were  accustomed,  soon 
after  the  supposed  laying  out  of  the  road,  to 
work  it,  would  tend  to  confirm  the  pre- 
sumption. State  V.  Alstead,  18  New  Hamp. 
59. 

172.  Where  the  record  of  the  laying  out 
of  a  highway  is  so  ancient  as  to  afl^ord  a  pre- 
sumption that  by  the  death  of  the  actors  it 
cannot  be  amended,  and  what  is  recorded 
leads  to  the  belief  that  the  statute  has  proba- 
bly been  complied  with,  although  some  of 
its  requisites  are  not  stated  in  the  record,  a 
jury  will  be  at  liberty  to  find  from  such  rec- 
ord, with  proof  that  the  way  was  made  by 
the  town,  and  used  many  years,  though  less 
than  twenty,  that  the  proceedings  were 
regular.     State  v.  Morse,  50  New  Hamp.  9. 

173.  On  the  trial  of  an  indictment  for  ob- 
structing a  railroad,  proof  of  the  granting 
to  the  company  of  its  charter,  and  the  pub- 
lic exercise  and  enjoyment  by  it  of  its  fran- 
chises for  many  years,  are  prima  facie  evi- 
dence of  the  existence  of  such  a  corporation, 
of  its  possession  and  management  of  the 
road,  and  of  its  ownership  of  the  engines 
and  carriages.  Com.  v.  Bakeman,  105 
Mass.  53. 

174.  On  the  trial  of  an  indictment  for  a 
nuisance  in  maintaining  a  coal-yard,  the  fact 
that  the  defendant  had  been  the  general 
agent  of  the  owner  of  the  yard  for  several 
years,  and  until  within  a  few  weeks  of  the 
doing  of  the  acts  complained  of,  is  proper 
for  the  consideration  of  the  jury  in  deter- 
mining whether  his  connection  with  those 
acts  aided  and  encouraged  them.  Com.  v. 
Mann,  4  Gray,  213. 

175.  On  the  trial  of  an  indictment  for  a 
nuisance  in  maintaining  a  dam,  it  is  error  in 


484 


NUISANCE. 


Evidence. 


the  court  to  refuse  to  charge  that  a  trial  and 
acquittal  of  the  former  owners  of  the  dam 
under  an  indictment  against  them  therefor,  is 
a  matter  for  the  consideration  of  the  jury ; 
the  record  of  the  former  prosecution  being 
evidence  that  the  dam  was  not  a  nuisance  at 
that  time;  but  not  that  the  dam  had  not 
since  become  a  nuisance.  Crippen  v.  Peo- 
ple, 8  Mich.  117. 

176.  Proof  of  quarreling  and  collision 
among  drivers  while  awaiting  their  turns,  is 
admissible  in  evidence  for  the  purpose  of 
showing  the  fact  of  obstruction.  People  v. 
Cunningham,  1  Denio,  524. 

177.  On  a  trial  for  a  nuisance  in  selling 
and  furnishing  unwholesome  water  to  an  en- 
tire community,  the  prosecution  may  prove 
the  deleterious  effects  of  the  water  on  par- 
ticular persons,  members  of  the  community, 
not  named  in  the  indictment.  Stein  v. 
State,  37  Ala.  123. 

178.  On  the  trial  of  an  indictment  for  a 
nuisance  in  keeping  a  disorderly  house  for 
cock-fighting,  evidence  was  admitted  of  an 
entry  in  the  cash  book  of  a  gas  company, 
showing  that  the  defendant  paid  for  gas 
used  at  the  house  ;  the  object  being  to  prove 
that  the  defendant  was  proprietor  and 
manager  of  the  bouse.  The  entry,  which 
was  made  by  a  former  book-keei)er  of  the 
defendant,  who  was  beyond  the  jurisdiction 
of  the  court  and  in  parts  unknown,  was 
verified  by  proof  of  his  handwriting.  State 
V.  Mace,  6  R.  I.  85. 

179.  On  the  trial  of  an  indictment  for 
keeping  a  house  of  ill-fame,  evidence  of 
the  general  character  for  chastity  of  females 
frequenting  the  house,  is  admissible;  and  it 
is  no  justification  that  there  was  no  noise  or 
disturbance  of  the  peace  in  the  house,  or  an- 
noyance to  persons  residing  in  the  neighbor- 
hood.    Com.  v.  Gannett,  1  Allen,  7. 

180.  On  a  trial  for  keeping  a  bawdy  house, 
80  as  to  be  a  common  nuisance,  it  is  com- 
petent to  show  the  character  of  the  women 
who  lived  in  the  house,  the  character  and 
behavior  while  there  of  the  men  who  fre- 
quented the  house,  and  also  the  effect  of  the 
house  upon  the  peace  of  the  neighborhood. 
Clementine  v.  State,  14  Mo.  112 ;  State  v. 
McDowell,  Dudley,  S.  C.  346. 


181.  Where,  on  the  trial  of  an  indictment 
for  keeping  a  bawdy-house,  witnesses  who- 
frequented  the  house  refuse  to  answer  ques- 
tions in  relation  to  the  conduct  of  the  in- 
mates and  visitors,  upon  the  ground  that  the 
answer  would  degrade  them,  such  refusal 
may  be  the  subject  of  consideration  by  the 
jury.     Clementine  v.  State,  supra. 

Ih2.  Guilty  intent.  On  the  trial  of  an 
indictment  for  obstructing  a  railroad,  it  was 
held  that  the  jury  were  properly  instructed 
that  if  the  defendant  placed  a  rail  upon  the 
track  as  alleged,  and  if  the  ordinary  and 
usual  consequences  of  so  doing  would  be  to 
obstruct  the  cars  running  on  said  track,  and 
thereby  endanger  the  safety  of  persons  con- 
veyed in  the  cars,  it  was  competent  for 
them  to  infer  that  he  did  it  with  that  intent, 
and  that  it  was  not  necessary,  in  order  ta 
complete  the  offense,  that  he  should  have 
had  any  individual  in  his  mind  whom  he 
wished  to  injure,  or  any  jiurpose  other  than 
to  destroy  property  and  endanger  or  destroy 
life.     Com.  v.  Bakeman,  105  Mass.  53. 

183.  On  the  trial  of  an  indictment  for 
willfully  and  maliciously  obstructing  ahorse- 
lailroad,  the  actual  enjoyment  and  use  of 
the  iranchise  by  the  company  is  sufficient  to 
authorize  the  jury  to  find,  in  the  absence  of 
proof  to  the  contrary,  that  the  location  of 
the  road  was  lawful ;  and  it  need  not  be 
proved  that  the  defendant  was  requested 
to  remove  from  the  track,  and  refused  to  do 
so,  if  the  jury  are  satisfied  from  other  evi- 
dence that  his  obstructiT'g  the  cars  was  will- 
ful and  malicious.    Com.v.Hicks,  7  Al!en,573. 

184.  Where,  on  the  trial  of  a  complaint 
for  permitting  cattle  to  go  upon  the  side- 
walks of  a  street,  it  was  proved  that  the  de- 
fendant employed  two  men  to  assist  in 
driving  the  cattle,  it  was  held  competent 
for  him  to  show  that  the  owner  of  the  cattle 
requested  him  to  hire  and  pay  these  men^ 
since,  if  that  constituted  all  his  agency  in 
the  matter,  he  would  not  be  liable;  but  that 
the  way  bills  on  the  railroad  were  not  ad- 
missible to  show  that  he  did  not  own  the 
cattle.     Com.  v.  Leavitt,  12  Allen,  179. 

185.  On  a  trial  for  nuisance,  the  prosecu- 
tion need  not  prove  a  criminal  intent.  Tay- 
lor V.  People,  6  Parker,  847. 


NUISANCE. 


485 


Evidence. 


186.  Admissions  and  declarations.  Ou 
the  trial  of  an  indictment  for  a  nuisance  on 
the  defendants'  land,  they  admitted  that  the 
title  in  fee  was  in  a  third  person  as  trustee 
for  them,  and  that  they  were  cestuis  que 
trust.  Held  not  an  admission  that  they 
were  owners  of  the  land,  or  had  any  estate  in 
it.     People  V.  Townsend,  B  Hill,  479. 

187.  On  the  trial  of  an  indictment  for 
keeping  a  disorderly  house,  the  testimony  of 
witnesses  as  to  what  was  said  and  done  by 
disturbers  of  the  peace  in  the  highway,  at  a 
considerable  distance  from  the  house,  out  of 
the  presence  and  knowledge  of  the  defend- 
ant or  his  family,  is  not  admissible.  Com. 
V.  Davenport,  2  Allen,  299. 

188.  Defense.  On  the  trial  of  an  indict- 
ment for  a  nuisance,  it  is  not  competent  for 
the  defendant  to  prove  in  justification  that 
the  public  benefit  resulting  from  his  acts  is 
equal  to  the  public  inconvenience.  State  v. 
Kaster,  35  Iowa,  221 ;  s.  c.  2  Green's  Grim. 
Reps.  629. 

189.  But  where  a  wharf  is  extended  into 
the  channel  of  a  harbor  beyond  the  line  of 
low  water  mark,  it  is  not  necessarily  a  nui- 
sance ;  and  the  presumption  that  it  is  such 
may  be  repelled  by  proof  that  it  has  increased 
the  accommodation  of  the  public.  Com.  v. 
Wright,  Thach.  Crim.  Cas.  211. 

190.  It  is  not  a  defense  to  an  indictment 
for  a  nuisance,  that  the  defendant  acted  as 
the  agent  of  another.  State  v.  Bell,  5  Porter, 
365. 

191.  On  the  trial  of  an  indictment  for 
maintaining  a  building  overhanging  a  pub- 
lic street,  it  is  not  competent  for  the  defend- 
ant, on  the  question  whether  the  building  is 
or  is  not  a  nuisance,  or  whether  he  is  an- 
swerable for  maintaining  it,  to  prove  that 
he  had  consulted  competent  builders,  by 
whom  he  was  advised  that  the  building  was 
not  in  danger  of  falling.  Chute  v.  State, 
19  Minn.  271 ;  s.  c.  1  Green's  Crim.  Rejis. 
571. 

192.  On  the  trial  of  an  indictment  for 
erecting  a  nuisance  near  dwelling-houses,  it 
cannot  be  proved  in  bar  of  the  prosecution, 
that  the  dwelling-houses  were  erected  after 
the  erection  of  the  alleged  nuisance.  Ellis 
V.  State,  7  Blackf  534. 


193.  It  is  not  a  defense  to  an  indictment 
for  a  nuisance,  that  it  lias  existed  for  such 
length  of  time  as  would  establish  a  prescrip- 
tion against  individuals.  People  v.  Cun- 
ningham, 1  Denio,  524  ;  Com.  v.  Elburger,  1 
Whart.  469. 

194.  The  mere  fact  that  under  the  internal 
revenue  act  of  the  United  States,  a  retailer's 
tax  had  been  paid,  and  a  retailer's  license 
obtained  for  the  defendant's  wife,  does  not 
tend  to  prove  that  the  defendant  did  not  keep 
a  disorderly  house,  or  to  justify  him  in  keep- 
ing it.  State  V.  Foley.  45  New  Hamp. 
466. 

195.  Weight  and  sufficiency  of  proof. 
On  the  trial  of  an  indictment  for  neglect- 
ing to  rebuild  and  keep  in  repair  a  bridge 
across  a  river,  the  question  whether  a  bridge 
at  the  place  in  question  would  be  so  connect- 
ed with  other  public  highways  as  to  be 
convenient  and  useful  to  the  public,  so  that 
the  neglect  to  build  or  repair  it  would  be  a 
nuisance,  is  one  of  fact  for  the  jury.  State 
V.  Northumberland,  44  New  Hamp.  628. 

196.  On  the  trial  of  an  indictment  against  a 
town,  for  allowing  a  highway  to  be  out  of  re- 
pair, the  following  instruction  was  held  prop- 
er :  "  That  the  jury  must  be  satisfied,  having 
reference  to  the  nature  and  amount  of  the 
public  travel,  that  there  was  a  substantial  in- 
convenience in  the  use  of  the  road,  burden- 
some to  the  traveler,  as  compared  with  other 
similar  ordinary  roads,  and  growing  out  of 
causes  which  could  be  removed  by  the  town 
by  a  reasonable  expenditure  of  money." 
Com.  V.  Inhabs.  of  Taunton,  16  Gray,  228. 

197.  An  indictment  alleged  that  the  de- 
fendants' plank-road  had  been  and  still  was 
at  the  finding  of  the  indictment  out  of  re- 
pair, to  the  damage  and  common  nuisance  of 
the  people  of  the  State,  so  that  they  could 
not  pass  over  the  same  without  great  trou- 
ble, annoyance  and  inconvenience.  Held, 
that  before  the  jury  would  be  warranted  in 
finding  the  defendants  guilty,  they  must  find 
from  the  evidence,  not  only  that  the  defend- 
ants permitted  their  road  to  be  out  of  repair 
at  the  time  laid,  but  that  it  continued  and 
remained  out  of  repair  down  to  the  time  of 
finding  the  indictment.  People  v.  Branch- 
port  &c.  Plank  R.  Co.  5  Parker,  604. 


48G 


NUISANCE. 


Evidence. 


Verdict. 


Judgment.      Abatement  of  Nuisance. 


198.  On  the  trial  of  an  indictment  for 
obstructing  a  public  road,  it  was  proved 
that  the  obstructions  were  caused  by  the 
felling  of  timber  to  build  the  defendant's 
house,  that  he  was  about  the  premises  and 
saw  the  obstructions,  but  did  nothing  toward 
their  removal,  and  that  he  had  no  control 
over  the  workmen  engaged  in  building  his 
house.  Held,  that  a  verdict  of  guilty  would 
not  be  disturbed.  Sanders  v.  State,  18  Ark. 
198. 

13.  Verdict. 

199.  In     case  of   several  defendants. 

Where  several  are  joined  in  an  iodictment 
for  a  nuisance,  the  jury  may  find  one  of  the 
defendants  guilty,  and  the  others  not  guilty. 
Bloomhuff  V.  State,  8  Black f.  205. 

14.  Judgment. 

200.  In  case  of  obstruction  of  highway. 

The  object  of  the  prosecution  by  indict- 
ment for  nuisance  to  highways,  is  not  for  the 
punishment  of  the  defendant,  but  the  repair 
of  the  highway  when  it  is  out  of  repair,  or 
the  removal  of  the  nuisance  when  the  high- 
way is  obstructed.  The  judgment  in  such 
cases  is,  that  the  defendant  pay  a  fine  and 
abate  the  nuisance.  People  v.  Branchport 
&c.  Plank  R.  Co.  5  Parker,  604. 

201.  Command  in,  must  be  to  defend- 
ant. A  judgment  tliat  "  the  nuisance  be 
abated  forthwith,  at  the  cost  of  the  de- 
fendant, and  the  sherifi"  is  charged  with  the 
execution  of  this  order,"  being  in  eficct  a 
command  to  the  sheriff  to  abate  the  nui- 
sance, was  held  erroneous ;  but  it  was  held 
that  it  might  be  amended  so  as  to  command 
the  defendant  to  abate  the  nuisance.  Camp- 
bell V.  State,  16  Ala.  144. 

202.  For  removal  of  nuisance.  Where 
the  indictment  does  not  aver  a  continuance 
of  the  nuisance,  a  judgment  for  the  abate- 
ment of  the  nuisance  is  improper;  and  if 
rendered,  it  will  be  reversed  on  writ  of 
error,  and  the  proceedings  be  remitted,  with 
directions  to  the  court  below  to  pass  a 
proper  sentence.  Munson  v.  People.  5  Par- 
ker, 16.  Where,  therefore,  the  indictment 
averred  that  the  defendant  unlawfully  and 


injuriously  slaughtered  animals  at  his  slaugh- 
ter house,  and  that  annoyance  and  disturb- 
ance of  the  public  was  occasioned  by  the 
off"al  and  other  refuse  material  which  he 
caused  and  permitted  to  be  and  remain  near 
the  dwellings  and  highway,  it  was  held  that 
the  court  had  no  power  to  restrain  him  from 
continuing  the  business  of  slaughtering  at 
his  slaughter  house.  Taylor  v.  People,  6 
Parker,  347. 

15.  Abatement  op  nuisance. 

203.  By  private  person.  At  common 
law  an  individual  may  abate  a  nuisance. 
But  no  more  injury  must  be  done  to  prop- 
erty than  is  absolutely  necessary  to  accom- 
plish the  object.  State  v.  Mofi'ett,  1  Iowa, 
347.  Where  a  railroad  bridge  across  the 
Neuse  river  obstructed  the  navigation  of  it 
by  the  defendants'  steamboat,  and  for  that 
reason  they  tore  the  bridge  down,  it  was 
held  that  they  were  justified  in  so  doing. 
State  V.  Parrott,  71  N.  C.  811;  s.  c.  3  Green's 
Grim.  Reps.  755 ;  approving  State  v.  Dibble, 
4  Jones,  107. 

204.  In  Maine,  county  commissioners  have 
no  authority  to  lay  out  roads,  and  construct 
bridges  over  creeks  or  arms  of  the  sea,  where 
canal-boats  and  other  small  craft  have  been 
accustomed  to  be  floated;  and  any  citizen 
having  occasion  to  use  such  waters  for  the 
passage  of  his  vessel,  may  lawfully  remove 
the  obstruction.  State  v.  Anthoine,  40 
Maine,  435. 

205.  By  mortgagor.  Where  a  mortgagor 
removes  from  the  mortgaged  premises  a 
ruinous  building,  in  the  performance  of  his 
duty  to  abate  a  public  nuisance,  such  re- 
moval will  not  make  him  liable  under  a 
statute  (of  Minnesota,  L.  of  1869,  ch.  64)^ 
which  makes  it  a  criminal  ofl'ense  for  a 
mortgagor  to  remove  any  building  situate 
upon  mortgaged  real  estate,  to  the  prejudice 
of  the  mortgagee,  "with  the  intent  to  im- 
pair or  lessen  the  value  of  the  mortgage," 
without  the  consent  of  the  mortgagee. 
Chute  V.  State,  19  Minn.  271 ;  s.  c.  1  Green's 
Crim.  Reps.  571. 

See  Breach  of  the  peace;  Lascivious- 

NESS. 


OBSCENE  PUBLICATIONS.— OFFICER. 


487 


Indictment. 


Authority  and  Duty. 


®b6ccuc  Publications, 

1.  Indictment.  An  indictment  for  pub- 
lishing an  obscene  book  or  picture  nee<i  not 
so  fully  describe  them  as  to  spread  them  out 
on  the  records  of  the  court.  Com.  v. 
Holmes,  17  Mass.  336;  People  v.  Girardin,  1 
Mann.  90. 

2.  Although  an  indictment  for  publishing 
an  obscene  book  need  not  always  set  out  the 
contents  of  the  book,  yet  whenever  it  is 
necessary  to  do  so,  or  whenever  the  indict- 
ment undertakes  to  set  out  the  contents,  the 
alleged  obscene  publication  must  be  set  out 
in  the  very  words  of  which  it  is  composed. 
When,  however,  the  publication  is  so  ob- 
scene as  to  render  it  improper  that  it  should 
appear  on  the  record,  the  statement  of  the 
contents  may  be  omitted,  and  a  description 
of  them  substituted;  but  a  reason  for  the 
omission  must  appear  in  the  indictment,  by 
proper  averments.  Com.  v.  Tarbox,  1  Cush. 
66.. 

3.  In  order  to  sustain  an  indictment  for 
the  publication  of  an  obscene  picture,  it  is 
not  necessary  to  allege  that  the  exhibition 
was  in  a  public  place.  It  is  sufficient  to 
state  that  it  was  exhibited  to  sundry  persons 
for  money.  The  indictment  need  not  de- 
scribe minutely  the  picture,  as  to  its  attitude 
and  posture,  or  allege  that  the  defendant's 
house,  where  the  picture  is  shown,  is  a  nui- 
sance. Com.  V.  Sharpless,  2  Serg.  «fcRawle, 
91. 

See  LAscrviousNEss ;  Libel. 


©bstructiug  tjigijiDa]), 


See  Nuisance. 


©fficer. 


1.  Authority  and  duty. 

2.  Liability. 

3.  Resisting  officer. 

4.  Indictment. 

5.  Evidence. 

1 .  Authority  and  duty. 
1.  Magistrate  when  protected.    Where 


a  magistrate,  in  issuing  a  warrant,  possessed 
and  was  exercising  a  general  jurisdiction  of 
the  subject-matter,  and  not  a  special  juris- 
diction over  a  particular  ofl'ense  created  by 
statute,  and  thereby  restricted  as  to  the 
manner  of  proceeding,  all  that  is  required  to 
protect  him  is  that  the  evidence  was  color- 
able— something  upon  which  the  judicial 
mind  was  called  upon  to  act  in  determining 
the  question  of  probable  cause.  Pratt  v. 
Bogardus,  49  Barb.  89. 

2.  Who  deemed  an  oflBcer  de  facto.  An 
officer  de  facto  is  one  whose  acts,  though  not 
those  of  a  lawful  officer,  the  law,  upon  prin- 
ciples of  policy  and  justice,  will  hold  valid, 
so  far  as  they  involve  the  interests  of  the 
public  and  third  persons,  where  the  duties 
of  the  office  were  exercised :  1st,  without  a 
known  appointment  or  election,  but  under 
such  circumstances  of  reputation  or  acqui- 
escence as  were  calculated  to  induce  people, 
without  inquiry,  to  submit  to  or  invoke  his 
action,  supposing  him  to  be  the  officer  he 
assumed  to  be ;  2d,  under  color  of  a  known 
and  valid  appointment  or  election,  but  where 
the  officer  had  failed  to  conform  to  some  re- 
quirement or  condition,  as  to  take  an  oath, 
give  a  bond,  or  the  like  ;  3d,  under  color  of 
a  known  election  or  appointment,  void  be- 
cause the  officer  was  not  eligible,  or  because 
there  was  a  want  of  power  in  the  electing  or 
appointing  body,  or  by  reason  of  some  de- 
fect or  irregularity  in  its  exercise,  such  in- 
eligibility being  unknown  to  the  public. 
State  V.  Carroll,  38  Conn.  449,  per  Butler, 
C.  J. ;  disapproving  Douglass  v.  Wickwire, 
19  lb.  488. 

3.  Acts  of  officer  de  facto,  how  far  valid. 
Although  a  chief  of  police  de  facto,  at  the 
time  he  serves  a  warrant,  holds  another 
office  incompatible  with  that  of  policeman, 
his  official  act  in  serving  the  warrant  wU  be 
valid  as  to  the  public  and  third  persons. 
State  V.  Clark,  44  Vt.  636. 

4.  Commissioners  of  excise.  In  New 
York,  the  duties  devolved  upon  commis- 
sioners of  excise,  by  "  the  act  to  suppress 
intemperance  and  to  regulate  the  sale  of  in- 
toxicating liquors  "  (Laws  of  1857,  ch.  628), 
call  for  the  exercise  of  discretion  and  judg- 
ment, and  are  to  some  extent  judicial.     The 


488 


OFFICER. 


Authority  and  Duty. 


commissioners  cannot  be  coerced  in  the  ex-, 
crcise  of  their  discretion.     But  for  an  unlaw- 
ful and  corrupt  exercise  of  the  powers  vested 
in   them,  they  are    answerable  criminally. 
People  V.  Jones,  54  Barb.  311. 

5.  Right  to  make  arrest  in  default  of 
property.  The  statute  of  New  Hampshire 
(Gen.  Stats,  ch.  54,  §  8),  authorizing  the  col- 
lector to  arrest  the  body  of  the  delinquent 
taxpayer  for  want  of  goods  and  chattels, 
does  not  require  the  officer  to  search  for 
projierty,  or  to  incur  labor,  expense,  or  risk 
in  taking  it ;  but  only  to  take  such  property 
as  shall  be  specifically  produced,  together 
with  indemnity  if  required.  On  the  trial  of 
an  indictment  for  assaulting  a  tax-collector, 
and  opposing  and  hindering  him  in  the  dis- 
charge of  the  duties  of  his  office,  it  was 
l^roved  that  the  defendant  having  twenty 
head  of  cattle  in  his  barnyard,  pointed  them 
out  to  the  tax-collector,  who  was  standing  in 
the  highway,  and  said,  "  There  are  oxen, 
cows,  steers,  &c.,  take  what  you  will,"  but 
refused,  when  requested  to  turn  them  out 
into  the  road  for  the  collector.  Held  that 
the  tax-collector  was  justified  in  arresting 
the  defendant.  State  v.  Roberts,  52  New 
Hamp.  492  ;  s.  c.  1  Green's  Grim.  Reps.  157. 

6.  Right  of  justice  of  the  peace  to  com- 
mand assistance.  A  justice  of  the  peace 
has  the  same  autliority  to  command  assist- 
ance in  pursuing  and  retaking  an  offender 
whom  he  has  caused  to  be  arrested  for 
an  offense  ccmmitted  in  his  presence,  and 
who  has  escaped,  that  he  has  to  command 
assistance  in  making  the  original  arrest. 
Com.  V.  McGahey,  11  Gray,  194. 

7.  Duty  to  arrest  deserters.  When  offi- 
cers are  ordered  by  their  superiors  to  arrest 
l^ersons  specifically  named  as  deserters,  they 
have  no  right  to  make  their  obedience  de- 
l^endent  upon  the  inquiry  as  to  whether  the 
persons  to  be  arrested  are  or  are  not  de- 
serters.    U.  S.  V.  Gleason,  1  Wool.  C.  C.  128. 

8.  May  enter  house  without  warrant. 
Police  officers  may  enter  the  house  of  a  per- 
son in  the  night  without  a  warrant  and 
arrest  him,  whenever  his  conduct  is  such  as 
to  induce  the  belief  that  he  intends  to  com- 
mit a  felony,  or  even  a  breach  of  the  peace. 
State  V.  Stouderman,  6  La.  An.  286. 


9.  A  constable  has  the  right,  by  virtue  of 
his  office,  and  without  warrant,  to  enter  any 
house  the  door  of  which  is  unfastened,  and 
in  which  there  is  a  noise  amounting  to  a 
breach  of  the  peace,  and  arrest  any  person 
engaged  in  an  affray,  or  in  committing  an  as- 
sault in  his  presence,  and  hold  him  by  suit- 
able means  for  a  reasonable  time  to  prevent 
any  further  assault.  Com.  v.  Tobin,  108 
Mass.  426. 

10.  Right  to  search  house.  Where  an 
officer  having  a  warrant  for  the  arrest  of  a 
person  on  a  criminal  charge,  knocks  at  the 
door  of  a  house  in  the  night  and  is  admitted, 
he  has  a  right,  acting  in  good  faith  and  in  a 
proper  manner,  to  search  the  loremises  for  the 
offender,  if  he  reasonably  and  in  fact  sup- 
poses him  to  be  there ;  and  he  is  not  bound 
to  exhibit  his  warrant  to  the  occupier  of  the 
house,  if  the  latter  has  reasonable  notice 
from  the  officer's  uniform  or  otherwse,  that 
he  is  an  officer  and  is  acting  under  a  warrant 
against  a  person  supposed  to  be  there.  Com. 
V.  Irwin,  1  Allen,  587. 

11.  May  break  open  door  of  house.  A 
sheriff  or  other  officer,  authorized  to  execute 
criminal  process,  may  lawfully  break  open 
the  door  of  the  house  wherein  the  accused 
dwells,  and  enter  and  search  the  dwelling  to 
find  the  offender;  and  if  hindered  and  ob- 
structed in  his  attempt  to  efl^ect  an  entrance 
by  other  persons,  they  will  be  liable  to  pros- 
ecution, although  at  the  time  the  accused 
was  not  in  the  house.  This  right  includes 
the  right  to  break  open  the  inner  doors. 
The  accused  need  not  have  owned  the  house, 
provided  he  dwelt  there  at  the  time.  If  the 
accused  neither  owns  nor  dwells  in  the  house, 
he  must  have  been  therein  at  the  time  of  the 
breaking  and  entering,  or  the  officer  will  not 
be  justified;  and  in  such  case  the  owner, 
after  giving  the  officer  leave  to  enter,  may  at 
any  time  withdraw  it.  Hawkins  v.  Com.  14 
B.  Mon.  395. 

12.  Duty  to  show  his  precept.  An  offi- 
cer when  called  upon  by  a  person  arrested 
to  state  his  authoritj",  is  bound  to  give  rea- 
sonable information ;  but  not  under  all  cir- 
cumstances to  show  his  precept.  His  omis- 
sion to  exhibit  or  declare  his  authority  can 
do  no  more  than  deprive  him  of  the  protec- 


OFFICER. 


489 


Authority  and  Duty. 


Liability. 


Resisting  Officer. 


tion  wliicli  the  law  throws  around  him  when 
in  the  rightful  discharge  of  his  official  duty. 
A  prisoner  who  escapes  without  questioning 
the  officer's  authority,  is  not  entitled  to  the 
same  extent  to  demand  the  authority  when 
rearrested  that  he  had  before  his  escape. 
State  V.  Phimiey,  42  Maine,  384. 

13.  "When  justified  in  taking  life.  At 
common  law,  if  a  felony  has  been  committed, 
an  officer  in  arresting  or  preventing  the  es- 
cape of  the  offender,  will  be  justified  in  tak- 
ing the  life  of  the  offender  when  there  is  an 
absolute  necessity  for  his  so  doing.  Where 
no  process  has  been  issued,  a  homicide  can 
only  be  justified,  even  by  an  officer,  by  show- 
ing the  actual  commission  of  a  felony,  and 
that  there  was  a  positive  necessity  to  take 
life  in  order  to  arrest  "or  Retain  the  felon. 
Conraddy  v.  People,  5  Parker,  234. 

14.  May  take  into  his  custody  stolen 
property.  An  officer  charged  with  the 
execution  of  a  warrant  for  grand  larceny, 
may  not  only  make  the  arrest,  but  also  take 
into  his  custody  the  property  described  in 
his  warrant  if  he  finds  it  on  the  person  or  in 
the  possession  of  the  accused.  But  he  has 
no  power  to  search  the  house  or  premises  for 
concealed  property,  another  process  being 
required  for  this  purpose.  Houghton  v. 
Bachman,  47  Barb.  388. 

15.  Right  of  magistrate  to  order  de- 
livery of  stolen  property.  In  New  York, 
if  the  evidence  adduced  before  the  magis- 
trate satisfies  him  judicially  that  the  prop- 
erty found  on  the  accused  has  in  fact  been 
stolen,  and  that  the  claimant  is  the  actual 
owner,  he  has  authority  in  his  judicial  ca- 
pacity to  order  its  delivery  to  such  claimant. 
3  N.  Y.  R.  S.  5th  ed.  1042.  The  order  of 
the  magistrate  in  such  case  is  not  an  estoppel 
upon  the  question  of  title.  It  simply  dis- 
poses of  the  possession  of  property  already 
in  the  custody  of  the  law,  leaving  the  title 
open  to  vindication  by  any  party  claiming 
to  have  it.     Houghton  v.  Bachman,  supi'a. 

16.  Has  custody  of  prisoner.  An  ofliccr 
who  arrests  a  party  upon  a  warrant  return- 
able before  a  justice  of  the  peace,  is  deemed 
to  have  the  party  in  custody  by  virtue  of  the 
original  warrant,  until  he  is  discharged  by 
the  court,  or  a  new  wan-ant  for  commitment 


is  made  and  delivered  to  him  by  the  justice. 
Com.  V.  Morihan,  4  Alien,  585. 

17.  Duty  to  return  warrant.  Although 
a  writ  issued  by  a  court  having  jurisdiction 
of  the  subject-matter,  and  regular  on  its  face, 
will  protect  the  officer  who  executes  it,  yet 
to  have  that  effect,  the  warrant  must  be 
regularly  returned.  Slomer  v.  People,  25 
III.  70.  The  fact  that  a  warrant  does  not 
command  the  officer  to  make  due  return  of 
it,  with  his  doings  thereon,  is  not  a  valid 
ground  for  the  discharge  of  the  prisoner. 
Com.  V.  Boon,  2  Gray,  74. 

2.  Liability. 

18.  Neglect  of  duty.  Whenever  a  duty 
of  a  public  natm'e  is  cast  on  a  person,  any 
neglect  of  the  duty  or  act  done  in  violation 
of  it  is  indictable.  Robinson  v.  State,  2 
Cold.  Tenn.  181. 

19.  Fraudulent  conversion.  It  is  not  a 
defense  to  an  indictment  against  an  officer 
for  the  fraudulent  conversion  of  moneys, 
that  he  and  his  sureties  are  liable  for  the 
same  on  his  bond,  and  that  it  is  not  public 
money  until  paid  into  the  treasury.  State 
V.  Walton,  62  Maine,  106. 

20.  Overdrawing  account.  In  New  Jer- 
sey, it  is  a  misdemeanor  under  the  statute 
(R.  S.  135),  for  a  director  or  officer  of  a  bank 
knowingly  to  overdraw  his  account  with  the 
bank,  although  done  without  fraudulent 
intent,  and  without  defrauding  the  bank ; 
and  the  indictment  need  not  allege  the 
manner,  by  whose  checks,  in  how  many 
checks,  or  in  what  funds,  he  overdrew  his 
account.     State  v.  Stimson,  4  Zabr.  478. 

21.  Buying  order.  It  is  not  a  defense  to 
an  indictment  against  a  county  treasurer  for 
buying  an  order  on  the  county  for  less  than 
its  par  value,  that  the  person  of  whom  he 
bought  had  no  title  to  the  order.  Wilder  v. 
State,  47  Ga.  522. 

3.  Resisting  officer. 

22.  What  is.  To  constitute  the  offense 
of  resisting  an  officer,  the  officer  or  person 
resisted  must  be  authorized  to  execute  the 
process  in  the  execution  of  which  he  is 
resisted  ;  the  process  must  be  legal,  and  this 


490 


OFFICEK. 


Resisting  Officer. 


Indictment. 


must  be  alleged  and  proved.  A  general 
averment  that  it  was  lawful  process,  and 
the  person  resisted  a  public  officer,  au- 
thorized to  execute  the  same,  is  a  sufficient 
allegation  of  the  validity  of  the  process  and 
the  jurisdiction  of  the  officer.  Bowers  v. 
People,  17  111.  373. 

23.  To  constitute  the  offense  of  resisting 
an  officer  in  the  lawful  execution  of  process, 
within  the  statute  of  Wisconsin  (R.  S.  ch. 
167,  §18),  the  resistance  must  be  direct  and 
forcible.  The  mere  frightening  away  or 
removing  horses  from  a  field  to  prevent  their 
seizure  by  an  officer  under  a  writ,  is  not 
sufficient.  But  threats  against  the  officer 
with  the  present  ability  and  apparent  in- 
tention to  execute  them,  might  constitute 
the  offense.     State  v.  Welch,  37  Wis.  196. 

24.  Hindering  person  deputed  to  serve 
process.  In  Connecticut,  the  hindering  and 
obstructing  an  indifferent  person  regularly 
deputed  to  serve  a  writ  of  attachment,  while 
such  person  is  engaged  in  the  performance 
of  his  duty  in  serving  such  process,  has  been 
held  to  be  a  violation  of  the  statute  (Rev. 
Stat.  p.  261),  which  provides  that  "Every 
person  who  shall  hinder,  obstruct,  resist  or 
abuse  any  justice  of  the  peace,  or  resist 
hinder,  obstruct,  or  abuse  any  sheriff,  deputy 
sheriff,  constable,  or  other  officer,  in  the 
execution  of  his  office,  shall  be  punished," 
&c.  State  V.  Moore.  39  Conn.  244 ;  s.  e.  1 
Green's  Crira.  Reps.  296. 

25.  Resistance  by  tax-payer.  In  New 
Hampshire,  a  tax-payer  will  not  be  justified 

•in  resisting  the  officer,  even  though  the 
assessment  of  the  tax  was  irregular,  or  the 
tax  illegal,  or  the  warrant  defective.  State 
V.  Roberts,  52  New  Hamp.  492. 

26.  Resisting  seizure  of  property.  It  is 
not  a  defense  to  an  indictment  for  obstruct- 
ing an  officer  in  the  service  of  process  of 
attachment,  that  the  goods  attached  be- 
longed to  the  defendant,  and  not  to  the 
party  to  the  process.  State  v.  Fifield,  18 
New  Hamp.  34  ;  State  v.  Richardson,  38  lb. 
208. 

27.  Whenever  the  question  of  property  is 
so  far  doubtful  that  the  creditor  and  officer 
may  be  supposed  to  act,  and  do  in  fact  act 
in  good  faith  and  on  reasonable  grounds  for 


believing  the  property  to  be  that  of  the 
debtor,  the  owner  has  no  right  to  resist  an 
execution  or  attachment  by  a  breach  of  the 
peace.     Faris  v.  State,  3  Ohio,  N.  S.  159. 

28.  After  an  officer  has  taken  possession 
of  the  right  personal  property  under  a  de- 
fective writ,  a  person  who  has  been  tried 
and  convicted  for  resisting  the  seizure  can- 
not reverse  the  conviction  on  the  ground 
that  the  writ  was  defective.  Nolty  v.  State, 
17  Wis.  668. 

29.  Duty  of  soldier  to  obey  orders. 
A  soldier  is  only  bound  to  obey  the  lawful 
orders  of  his  superiors.  U.  S.  v.  Carr,  1 
Woods,  480.  If  in  obeying  an  illegal  order, 
he  commits  an  offense,  the  order  will  be  no 
justification.  But  a  soldier  would  be  bound 
to  obey  any  order  given  by  his  superior 
officer  which  did  not  show  its  illegality  on 
its  face;  and  such  an  order  would  be  a 
protection  to  him.  Riggs  v.  State,  3  Cold. 
Tenn.  85. 

4.  Indictment. 

30.  For  misconduct  in  office.  An  indict- 
ment charged  that  the  defendant  being 
register  of  deeds,  made  and  signed  a  certif- 
icate that  he  had  examined  the  title  to  a 
certain  lot  and  found  no  incumbrance  there- 
on, whereas,  there  was  an  incumbrance  on  it 
by  attachment  which  was  entered  in  the 
registry;  that  the  defendant  knew  the  fact 
when  he  gave  the  certificate,  and  knew 
that  his  certificate  was  false,  and  knowingly, 
designedly,  and  unlawfully  issued  the  same. 
Held  that  the  facts  set  forth  showed  "mis- 
conduct in  office "  within  the  statute  of 
Maine  (Stat,  of  1857,  ch.  7,  §15),  although 
there  was  no  intent  to  defraud,  and  it  was 
no  part  of  the  defendant's  duty  to  make 
sitch  examination  or  issue  such  certificate ; 
that  the  writ  of  attachment  need  not  be  set 
out;  and  that  the  allegation,  "  all  of  which 
then  and  there  appeared  by  the  records  of 
said  registry  of  deeds  "  sufficiently  averred 
that  the  attachment  was  recorded.  State  v. 
Leach,  60  Maine,  58. 

31.  An  indictment  for  the  willful  neglect 
of  duty  and  misbehavior  in  office  as  a  justice 
of  the  peace  charged  that  the  defendant, 
having  in  his  possession  as  justice  of  the 


OFFICER. 


491 


Indictment. 


peace  $60  20,  received  by  him  in  satis- 
faction of  a  judgment  recovered  before 
him  by  one  A.,  did  "willfully,  corruptly, 
and  fraudulently  witlihold  it "  from  A. ;  that 
A.,  having  called  on  him  and  made  inquiry 
of  him  about  said  judgment,  he  "  willfully 
and  corruptly,  and  with  intent  to  injure  and 
defraud  the  said  A.,"  withheld  from  him  the 
knowledge  that  the  judgment  had  been  sat- 
isfied, and  neglected  to  pay  over  to  him  the 
amount  received  in  satisfaction  of  the  judg- 
ment, and  "  then  and  there  willfully  and 
corruptly  advised  the  said  A.  to  sell  the  said 
judgment;  "  and  that  afterward  he  paid  of 
the  money  so  received  to  B.  $51,  and  did 
then  and  there  willfully  and  corruptly  re- 
serve to  himself  the  remainder  of  said  judg- 
ment money,  amounting  to  $9  20,  "with 
intent  to  injure  and  defraud  the  said  A." 
Held  that  the  indictment  was  bad  for  du- 
plicity, and  in  not  showing  that  any  crime 
had  been  committed.  State  v.  Coon,  14 
Minn.  456. 

32.  Taking  iinlawful  fee.  An  indictment 
under  a  statute  punishing  the  taking  or  re- 
ceiving for  an  official  service  or  duty  a 
greater  fee  or  compensation  than  is  author- 
ized by  law,  must  state  the  service  or  duty 
for  which  the  money  was  taken.  State  v. 
Packard,  4  Oregon,  157.  And  see  State  v. 
Perham,  lb.  188. 

33.  Failure  to  execute  warrant.  Where 
a  constable  is  indicted  for  not  executing  a 
warrant  commanding  him  to  arrest  a  person 
charged  with  crime,  the  indictment  must 
show  that  the  person  who  issued  the  war- 
rant had  jurisdiction,  and  the  indictment 
must  allege  that  the  facts  recited  in  the 
warrant  are  true.  People  v.  Weston,  4  Par- 
ker, 226. 

34.  Making  false  return.  An  indictment 
against  an  officer  for  making  a  false  return 
to  process  must  state  wherein  the  return  was 
false,  and  the  facts  in  relation  to  the  trans- 
action whereof  the  return  was  made.  Tib- 
bals  V.  State,  5  Wis.  596. 

35.  Falsely  personating  officer.  In 
Massachusetts,  an  indictment  for  falsely 
personating  a  sheriff,  in  violation  of  the 
statute  (R.  S.  ch.  128,  §  19),  must  allege  that 
the  defendant  falsely  assumed  or  pretended 


to  be  a  sheriff  of  the  commonwealth,  and 
took  upon  himself  to  act  as  such.  Com.  v. 
Wolcott,  10  Cush.  61. 

36.  Resisting  officer.  In  charging  a  per- 
son with  knowingly  and  willfully  resisting  an 
officer  in  the  execution  of  a  legal  writ,  it  is 
not  necessary  to  aver  that  the  officer  at  the 
time  informed  the  defendant  that  he  acted 
under  a  warrant.  The  indictment  need  not 
set  forth  the  acts  of  the  officer,  or  show  that 
in  making  the  arrest  he  complied  with  the 
statute.  The  officer  will  be  presumed  to 
have  discharged  his  duty ;  and  the  fact  that 
he  did  not  do  so  is  proper  matter  of  defense. 
State  V.  Freeman,  8  Iowa,  428. 

37.  Whether  an  indictment  for  resisting^ 
an  officer  ought  to  specify  the  process 
under  which  he  acted,  state  the  manner 
of  executing  it,  and  of  the  resistance, 
and  allege  that  the  defendant  knew  he  was 
an  officer — qxierij.  Faris  v.  State,  3  Ohio,  N. 
S.  159.  An  indictment  for  resisting  process 
which  shows  that  the  time  of  the  commission 
of  the  offense  was  after  the  return  day  is  bad 
on  error.     McGehee  v.  State,  26  Ala.  154. 

38.  In  New  Hampshire,  an  indictment 
under  the  statute  (Gen.  Stats,  ch.  259,  §  6), 
for  willfully  obstructing  or  assaulting  an 
officer  or  other  person  in  the  service  ©f 
criminal  process,  need  not  state  that  the 
officer  was  duly  appointed  or  qualified  to 
serve  the  process,  or  that  it  was  "  a  lawful 
process,"  or  that  the  complaint  on  which 
the  process  was  issued  was  signed  or  ad- 
dressed to  any  magistrate,  or  that  the 
process  was  under  the  seal  of  the  justice  by 
whom  it  was  issued.  State  v.  Cassady,  52 
New  Hamp.  500. 

39.  An  indictment  under  a  statute  pun- 
ishing a  person  who  should  willfully  ob- 
struct or  assault  any  officer  or  person  duly 
authorized,  in  the  discharge  of  any  duty  of 
his  office,  was  held  sufficient  which  charged 
that  "  the  defendant,  with  force  and  arms, 
upon  one  H.,then  and  there  being  a  col- 
lector of  taxes  for  said  town  of  J.,  and  in 
the  due  discharge  of  the  duties  of  his  said 
office,  to  wit,  in  the  service  of  a  certain 
warrant  for  the  collection  of  taxes,  thereto- 
fore issued  and  directed  to  said  H.  by  the 
selectmen  of  said  J.,  then  and  there  made 


492 


OFFICER. 


Indictment. 


Evidence. 


an  assault,  and  him,  the  said  H.,  so  being 
in  the  discharge  of  the  duties  of  his  said 
office,  then  and  there  did  willfully  obstruct, 
oppose,  and  hinder,  and  then  and  there  did 
beat,"  &c.,  -without  alleging  that  H,  was 
"duly  authorized,"  and  in  the  discharge  of 
his  duty.  State  v.  Roberts,  52  New  Hamp. 
493;  s.  c.  1  Green's  Crim.  Reps.  157. 

40.  An  information  for  hindering  and  ob- 
structing G.,  an  ofHcer,  in  the  execution  of 
process,  alleged  that  "  G.  was  lawfully  de- 
puted according  to  the  statute  in  such  cases 
provided,  as  an  indifferent  person,  by  A.  B., 
a  justice  of  the  peace,  and  as  such  indifferent 
person,  had  in  his  hands  a  writ  of  attach- 
ment issued  by  said  justice,  which  was  law- 
fully issued  and  perfected  in  all  respects 
according  to  law,  and  which  was  directed 
to  the  said  G.,  as  an  indifferent  person, 
commanding  him,"  &c.,  without  alleging 
that  G.  was  an  cificer,  or  that  the  plaintiff 
in  the  writ,  or  his  agent,  took  the  oath  re- 
quired by  law,  or  that  a  bond  for  prosecution 
was  given.  Held  that  the  information  was 
sufficient  after  verdict.  State  v.  Moore,  39 
Conn.  244 ;  s.  c.  1  Green's  Crim.  Reps.  296. 

41.  Where  an  indictment  charged  the 
defendant  with  having  willfully  obstructed 
J.  P.,  a  deputy  sheriff,  in  the  service  of  a 
writ,  which  was  set  out  and  averred  to  be 
lawful  process  in  a  civil  case,  it  was  held 
sufficient  without  alleging  that  the  writ  was 
ever  in  the  hands  of  the  officer,  or  that  it 
was  returned.  State  v.  Fifield,  18  New 
Hamp.  34. 

42.  It  is  essential  to  an  indictment  for 
obstructing  an  officer  in  the  service  of  legal 
process,  that  it  show  that  such  process  was 
legal ;  and  it  is  not  enough  to  allege  that 
the  officer  was  "  in  the  due  and  lawful  exe- 
cution of  his  office."  If  the  process  was  a 
writ  of  replevin,  the  indictment  should  allege 
that  a  bond  w^as  given.  State  v.  Beasom,  40 
New  Hamp.  367. 

43.  An  indictment  for  obstructing  and 
resisting  an  officer  in  the  service  of  an  exe- 
cution, which  is  set  out,  need  not  allege  that 
a  judgment  was  rendered  upon  which  the 
execution  issued.  State  v.  Dickerson,  24 
Mo.  365. 

44.  For  rescue.     An  indictment  for  a  res- 


cue, must  state  the  nature  and  cause  of  the 
imprisonment  of  the  person  alleged  to  have 
been  rescued,  and  whether  the  party  from 
whom  the  rescue  was  made  was  a  public 
officer  or  private  person.  If  the  latter,  the 
defendant  would  not  be  liable  unless  he 
knew  that  the  prisoner  was  under  arrest. 
State  V.  Hilton,  26  Mo.  199. 

45.  An  indictment  for  attempting  forcibly 
to  rescue  a  prisoner  held  in  the  lawful  cus- 
tody of  an  officer,  need  not  allege  the  pro- 
cess by  which  he  was  held  or  the  circum- 
stances of  the  holding.  Com.  v.  Lee,  107 
Mass.  207. 

46.  An  indictment  for  rescue  must  aver 
that  an  order  for  bail  was  made  previous  to 
issuing  the  capias  ad  respondendum  upon 
which  the  party  rescued  was  arrested.  State 
V.  Dunn,  1  Dutch.  214. 

47.  Removal.  Fonn  of  information  and 
decree  for  the  removal  of  a  public  officer. 
Com.  V.  Cooley,  1  Allen,  35S. 


y 


5.  Evidence. 

48.  Proof  of  authority.  Where  it  is 
shown  that  a  person  has  acted  notoriously 
as  a  public  offcer,  it  is  prima  facie  evidence 
of  his  official  character,  without  proving  his 
commission  or  appointment.  State  v.  Roberts, 
52  New  Hamp.  492 ;  s.  c.  1  Green's  Crim. 
Reps.  157. 

49.  Proof  that  a  person  is  an  acting  offi- 
cer, is  evidence  of  his  authority,  notwith- 
standing in  the  given  case,  the  power  of  ap- 
pointing officers  depends  upon  the  adoption 
by  the  town,  of  the  police  law,  which  fact  is 
not  shown.  State  v.  Butman,  42  New 
Hamp.  490. 

50.  The  legal  presumption  that  officers  are 
authorized  to  act,  and  that  papers  bearing 
their  official  signature  are  genuine,  applies 
to  a  warrant  in  the  hands  of  an  officer,  and 
purporting  to  be  signed  by  the  tax-collector 
and  treasurer  of  a  town.  Com.  v.  Gearing, 
1  Allen,  595. 

51.  Intent  to  defraud.  On  the  trial  of  an 
indictment  against  a  register  of  deeds  for 
"  official  misconduct "  in  making  and  sign- 
ing a  certificate  that  he  had  examined  the 
title  to  a  certain  lot,  and  found  no  incum- 
brance thereon,  whereas  there  was  an  in- 


OFFICER.— OUTLAWKY.— PARDON. 


495 


Evidence. 


Prosecution  to.       Power  of  Executive  to  Grant. 


cumbrance  oa  it,  which  was  entered  in  the 
registry,  the  history  of  the  certificate  and  of 
the  uses  made  of  it  by  the  holder  in  obtain- 
ing a  loan,  are  admissible  to  show  an  intent 
to  defraud ;  also  proof  that  a  lien  by  at- 
tachment was  perfected  by  levy ;  and  like- 
wise the  record  of  the  attachment  notwith- 
standing there  is  a  variance  between  that 
and  the  writ  in  the  middle  initial  letter  of 
the  attaching  creditor.  State  v.  Leach,  60 
Maine,  58. 

52.  Original  process.  In  Connecticut,  on 
the  trial  of  an  information  for  obstructing 
and  hindering  an  officer  in  the  execution  of 
process,  it  was  held  that  the  original  process 
was  admissible  in  evidence  although  it  had 
not  been  returned  to  court ;  the  offense  be- 
ing complete  upon  the  obstruction  of  the 
process,  and  it  not  being  a  question  of  the 
justification  of  the  officer.  State  v.  Moore;, 
39  Conn.  244;  s.  c.  1  Green's  Crim.  Reps. 
296. 

53.  Officer  need  not  be  witness.  When 
an  officer  is  charged  with  misconduct  which 
may  be  a  ground  for  his  removal  or  im- 
peachment, though  not  an  indictable  offense, 
he  is  not  bound  to  be  a  witness  against  him- 
self.    U.  S.  V.  Collins,  1  Woods,  499. 

See  Arrest  ;  Embezzlement. 


©utlaujrij. 


1.  Prosecution  to.  In  Virginia,  where 
the  defendant  was  indicteil  for  a  trespass,  it 
was  held  that  he  might  be  prosecuted  to 
outlawry.     Com.  v.  Hale,  2  Va.  Cas.  241. 

2.  Process  of.  In  Pennsylvania,  in  pro- 
cess of  outlawry,  the  township  of  which  the 
defendant  was  inhabitant  must  be  alleged. 
But  if  he  is  proved  to  hav'e  been  there,  it  is 
sufficient,  though  not  his  place  of  residence. 
Resp.  V.  Steele,  2  Ball.  93. 


|3arbou. 


1.  Power  of  executive  to  grant.  Where 
the  punishment  is  in  the  discretion  of  the 
presiding  judge,  the  pardoning  power  should 
only  be  exercised  in  extreme  cases.    Whether 


the  governor  has  power  to  [)ardon  a  portion 
of  the  supposed  punishment  (when  it  is  dis- 
cretionary) before  it  is  determined  by  judg- 
ment—^i^ery.     State  V.  Mclntire,  1  Jones,  1. 

2.  In  Massachusetts,  under  the  State  Con- 
stitution (ch.  2,  art.  8,  §  1),  thegovenior  has 
power,  by  and  with  the  advice  of  the  coun- 
cil to  pardon  a  prisoner  after  verdict,  and 
while  exceptions  allowed  by  the  judge  who 
presided  at  the  trial  are  pending  in  the  Su- 
preme Court  for  argument ;  and  the  pris- 
oner, upon  waiving  his  exceptions,  and 
pleading  the  pardon,  is  entitled  to  his  dis- 
charge. Com.  V.  Lockwood,  109  Mass.  323; 
8.  c.  1  Green's  Crim.  Reps.  168. 

3.  Remission  of  part  of  fine.  The  gov- 
ernor, under  the  power  of  pardoning,  may 
remit  part  of  a  fine.  State  v.  Twitty,  4 
Hawks,  193.  And  see  Rowe  v.  State,  2 
Bay,  565.  In  South  Carolina,  it  was  held 
that  the  4th  section  of  the  act  of  1827,  which 
provided  that  fines  or  forfeitures  incurred  or 
imposed  in  any  Court  of  Sessions,  should  be 
paid  to  the  commissioners  of  public  build- 
ings for  public  purposes,  did  not  take  from 
the  governor  the  power  to  remit  so  much  of 
any  fine  or  forfeiture  as  was  not  by  law  given 
to  the  informer  or  other  private  persons  for 
private  purposes.  State  v.  Simpson,  1 
Bail.  378. 

4.  The  power  of  pardon  confided  to  the 
President  after  a  judgment  ordering  a  por- 
tion of  a  fine  to  be  paid  to  a  private  citizen, 
is  limited  to  a  remission  of  the  share  of  the 
government  only,  and  is  inoperative  to  di- 
vest an  interest  vested  by  sucli  judgment  in 
the  citizen,     U.  S.  v.  Harris,  1  Abb.  110. 

5.  May  be  conditional.  The  power  of 
the  executive  under  the  Constitution,  to 
grant  pardons,  includes  the  power  of  grant- 
ing a  conditional  pardon.  Such  condition 
may  extend  to  banishment  from  the  United 
States ;  and  where  there  is  a  breach  of  the 
condition,  the  pardon  becomes  void,  and 
the  criminal  may  be  remanded  l)y  the  court 
in  which  he  was  convicted,  or  other  court 
having  criminal  jurisdiction.  People  v. 
Potter,  1  Parker,  47. 

6.  A  pardon  may  be  upon  the  condition 
that  the  offender  leave  the  State  and  never 
return ;  and  upon  a  violation  of  the  condi- 


494 


PARDON. 


May  be  Conditional. 


General  Effect. 


tion,  the  original  sentence  may  be  enforced. 
State  V.  Smith,  1  Bail.  123;  State  v.  Fuller, 
1  McGord,  178. 

7.  In  Arkansas,  where  a  person  having 
been  pardoned  by  the  governor  on  condition 
that  he  should  leave  the  State,  complied 
with  the  condition,  but  afterward  returned 
to  the  State,  it  was  held  that  he  was  not 
liable  to  be  retaken  and  imprisoned  under 
the  former  conviction.  Ex  parte  Hunt,  5 
Eng.  284. 

8.  It  is  a  reasonable  condition  that  the 
defendant  shall  leave  the  county  forthwith  ; 
by  which  the  defendant  would  be  required 
to  depart  and  remain  absent  during  at  least 
the  term  of  sentence.  Com.  v.  Haggerty,  4 
Brewster,  Pa.  326 ;  s.  c.  1  Green's  Crim. 
Eeps.  180. 

9.  Where  it  appeared  from  the  pardon 
that  the  governor  supposing  that  the  de- 
fendant had  been  fined  as  well  as  imprisoned, 
made  his  discharge  conditional  upon  the 
payment  of  the  fine,  it  was  held  that  the 
pardon  was  void.  State  v.  Mclntire,  1 
Jones,  1. 

10.  In  Virginia,  where  a  pardon  was  con- 
ditional, it  was  held  that  the  governor  having 
no  power  to  pardon  upon  condition,  the 
pardon  was  absolute.  Com.  v.  Fowler,  4 
Call,  35. 

11.  By  repeal  of  statute.  Where  a  penal 
statute  is  repealed,  it  operates  as  a  pardon 
of  all  offenses  committed  before  such  repeal. 
Roberts  v.  State,  2  Overt.  423. 

12.  Implied  promise  of.  Where  an  ac- 
complice testifies  in  the  United  States  Circuit 
Court  in  behalf  of  the  prosecution,  there  is 
an  implied  promise  by  the  government  that 
he  shall  not  be  prosecuted  if  he  makes  a 
full  and  honest  disclosure.  U.  S.  v.  Lee,  4 
McLean,  103. 

13.  In  New  York,  an  accomplice  testifying 
and  making  a  full  disclosure  is  entitled  to  a 
recommendation  for  pardon.  People  v. 
Whipple,  9  Cow.  707.  It  was  held  other- 
wise in  "Virginia.  Byrd  v.  Com.  3  Va.  Cas. 
493 ;  Dabney's  Case,  1  Rob.  696. 

14.  An  accomplice  in  murder  who  testifies 
on  behalf  of  the  State,  is  not  before  convic- 
tion entitled  to  avail  himself  of  the  rights 


and  privileges  of  one   claiming  executive 
clemency.     Ex  ^arf^  Birch,  3  Gilman,  134. 

15.  How  proved.  A  pardon  may  be 
proved  by  production  of  the  charter  of 
pardon  under  the  great  seal  of  the  State. 
Roberts  v.  State,  2  Overt.  423;  State  v. 
Blaisdell,  33  New  Hamp.  388. 

16.  How  taken  advantage  of.  A^  pris- 
oner can  only  avail  himself  of  a  pardon  by 
bringing  it  judicially  before  the  court.  U. 
S.  V.  Wilson,  7  Peters,  150. 

17.  Averment.  Where  an  information 
alleges  that  the  prisoner  was  discharged  in 
consequence  of  a  pardon,  it  is  equivalent  to 
an  averment  that  he  was  discharged  "  in 
due  course  of  law."  Evans  v.  Com.  3  Mete. 
453. 

18.  General  effect.  Pardons  are  to  be 
construed  favorably  to  the  convict.  They 
take  eflfect  from  the  delivery,  and  not  only 
relieve  fiom  punishment,  but  remove  the 
guilt  of  the  offense.  Ex  parte  Hunt,  5  Eng. 
284.  A  pardon  removes  disabilities,  whether 
granted  before  or  after  the  term  of  punish- 
ment has  expired.  State  v,  Baptiste,  26  La. 
An.  134. 

19.  When  a  person  sentenced  to  the  State 
prison  for  life,  is  pardoned,  he  is  restored  to 
his  rights  and  duties  as  a  parent,  and  be- 
comes entitled  to  the  custody  of  his  infant 
children,  who  had  been  placed  under  the 
care  of  a  guardian,  but  it  does  not  annul 
the  second  marriage  of  his  wife,  nor  the  sale 
of  his  property  by  persons  appointed  to 
administer  on  his  estate,  nor  deprive  his 
heirs  of  the  interest  acquired  in  his  estate, 
by  reason  of  his  civil  death.  Matter  of 
Deraing,  10  Johns.  232. 

20.  A  pardon  restores  all  the  rights  of 
property  of  the  grantee  for  acts  done  or  per- 
mitted in  aid  of  the  late  rebellion ;  and  he 
may  plead  such  pardon  in  proceedings  for 
the  confiscation  of  his  property.  Brown 
agst.  U.  S.  McCahon's  Kansas,  229. 

21.  Does  not  restore  capacity  of  magis- 
trate. Where  a  justice  of  the  peace  having 
been  convicted  of  felony,  thereby  forfeited 
his  oflace,  it  was  held  that  a  pardon  did  not 
do  away  with  the  forfeiture,  or  restore  his 
capacity.     Fugate's  Case,  2  Leigh,  724. 

22.  Does    not   affect    offense  not  men- 


P  AKDON.— PE  DDLERS. 


495 


Restoration  of  Competency  to  Testify.        Effect  on  Costs. 


Meaning  of. 


tioned.  A  pardon  for  a  specified  offense 
does  not  operate  as  a  pardon  for  a  previous 
felony  not  mentioned  in  such  pardon.  State 
V.  McCarty,  1  Bay,  334. 

23.  It  is  not  a  defense  to  an  indictment 
for  horse  stealing,  that  the  crime  was  com- 
mitted previous  to  the  conviction  of  the 
defendant  for  negro  stealing,  for  which  he 
was  pardoned.  Hawkins  v.  State,  1  Porter, 
475. 

24.  Restoration  of  competency  to  testify. 
The  effect  of  a  pardon,  although  granted 
after  the  convict  has  suffered  the  entire 
punishment  awarded  against  him,  is  to  re- 
move the  common-law  disability  of  incom- 
petency as  a  witness.  State  v.  Blaisdell,  33 
New  Hamp.  388. 

25.  A  clause  in  a  pardon  that  nothing 
contained  therein  is  intended  to  relieve  the 
prisoner  from  the  legal  disabilities  arising 
from  his  conviction  and  sentence,  but  solely 
from  imprisonment,  is  repugnant,  and  may 
be  treated  as  surplusage.  People  v.  Pease,  3 
Johns.  Cas.  333. 

23.  A  pardon  restores  the  competency  of 
a  felon  as  a  witness,  notwithstanding  it  is 
not  affirmatively  shown  that  the  pardon  re- 
stored him  to  the  rights  of  citizenship.  Yar- 
borough  V.  State,  41  Ala.  405. 

27.  The  following  was  held  not  to  be  a 
pardon  entitling  the  convict  to  testify  as  a 
witness,  for  the  reason  that  it  sought  to  re- 
store the  prisoner  to  all  the  rights  of  citizen- 
ship possessed  by  him  before  his  conviction, 
while  he  yet  remained  a  convicted  felon: 
"  Whereas  Charles  Davis,  alias  Charles 
Moore,  has  been  convicted  of  criminal  of- 
fenses against  the  laws  of  the  State  of  Cali- 
fornia, and  whereas  it  is  desirable  for  the 
attainment  of  the  ends  of  justice  that  he 
should  be  restored  to  citizenship ;  therefore 
I,  H.  H.  Haight,  governor  of  said  State,  do 
hereby  restore  said  Davis  to  all  the  rights 
of  citizenship  possessed  by  him  before  his 
conviction  for  the  offenses  above  referred 
to."  People  V.  Bowen,  43  Cal.  433 ;  s.  c.  1 
Green's  Crim.  Reps.  185. 

28.  Although  a  pardon  restores  the  per- 
son's competency  as  a  witness,  yet  a  remis- 
sion merely  of  his  punishment  does  not  have 
that  effect.  Perkins  v.  Stevens,  34  Pick.  277. 


29.  Person  convicted  of  perjury  not 
competent  witness.  In  New  York,  a  per- 
son who  has  been  convicted  of  perjury  can- 
not be  a  witness,  until  the  judgment  is  re- 
versed, though  he  has  been  pardoned  by  the 
governor,  and  the  pardon  purports  to  restore 
him  to  all  his  civil  rights.  Houghtaling  v. 
Kelderhouse,  1  Parker,  241. 

30.  Does  not  remit  interest  in  penalty. 
A  pardon  by  the  president  of  the  United 
States  as  to  all  the  interest  of  the  govern- 
ment in  the  penalty  incurred  by  a  violation 
of  the  embargo  laws,  and  directing  further 
proceedings  to  be  suspended,  does  not  remit 
the  interest  of  the  custom  house  officers  in  a 
moiety.  U.  S.  v.  Lancaster,  4  Wash.  C.  C. 
64. 

31.  Effect  on  costs.  A  general  pardon 
discharging  a  convict  from  a  fine  and  judg- 
ment of  imprisonment  does  not  operate  as  a 
remission  of  the  judgment  for  costs  against 
him.  Estep  v.  Lacy,  35  Iowa,  419;  s.  c.  3 
Green's  Crim.  Reps.  634. 

32.  In  Illinois,  where  a  person  sentenced 
to  imprisonment,  and  to  pay  a  fine  of  one 
hundred  dollars,  was  pardoned  for  the  crime, 
and  an  execution  issued  against  him  for  the 
amount  of  the  fine  and  costs,  it  was  held 
that  the  pardon  discharged  him  from  the 
fine,  but  not  from  the  costs.  Halliday  v. 
People,  5  Gilman,  214.  And  in  Pennsyl- 
vania, it  has  been  held  that  the  pardoning 
power  does  not  include  the  costs  to  which 
the  prisoner  may  have  been  sentenced  upon 
conviction.  Ex  parte  McDonald,  2  Whart. 
440.  It  is  the  same  in  Indiana.  State  v. 
Farley,  8  Blackf.  239. 

33.  But  in  Pennsylvania,  the  pardon  of  a 
person  convicted  of  bastardy,  when  pleaded 
before  sentence,  exempts  the  defendant  from 
the  costs  of  the  proceedings,  as  well  as  from 
the  obligation  to  support  the  bastard  child. 
Com.  V.  Ahl,  43  Penn.  St.  53. 


Ipcace,  iSrcacI)  of. 

See  Affray  ;  Breach  of  the  peace  ;  Riot. 


|3cbMcr0. 

1.  Meaning  of.   A  hawker  and  peddler  is 


490 


PEDDLERS.— PERJURY. 


Meaning  of. 


Perjury. 


When  and  How  Committed. 


one  who  travels  from  town  to  town,  or  from 
house  to  house,  carrying  to  sell,  or  exposing 
for  sale,  goods,  wares,  and  merchandise.  A 
single  shipment  of  goods,  regularly  con- 
signed to  merchants,  by  the  defendant,  and 
sold  for  his  benefit,  is  not  hawking  and 
peddling.    State  v.  Belcher,  1  McMuUan,  40. 

2.  It  is  a  violation  of  the  hawker  and 
peddler  act  of  Massachusetts  (Stat,  of  1846, 
ch.  244)  for  a  person  to  sell  merchandise 
from  house  to  house  by  request  of  buyers, 
notwithstanding  he  was  traveling  in  pursuit 
of  a  lawful  occupation,  and  did  not  previ- 
ously intend  to  sell  such  goods.  But  it  is 
not  a  violation  of  such  act  for  a  carrier  to 
deliver  goods  to  persons  who  had  previously 
ordered  them,  but  who,  when  the  goods 
were  brought,  desired  to  enlarge  their  order 
upon  the  same  terms.  Com.  v.  Ober,  12 
Cush.  493. 

3.  Constitutionality  of  statute.  A  law 
prohibiting  sales  by  hawkers  and  peddlers 
without  license  is  valid,  it  being  an  exercise 
of  the  police  power  of  the  State.  Morrill  v. 
State,  38  Wis.  428. 

4.  Indictment.  An  indictment  against  a 
peddler  must  allege  that  the  person  charged 
with  peddling  had  no  license.  May  v.  State, 
9  Ala.  167. 

5.  An  indictment  for  vending  clocks  with- 
out license  need  not  allege  to  whom  the 
clocks  were  sold,  or  the  price  that  was  given. 
Page  v.  State,  6  Mo.  205. 

6.  In  Indiana,  an  indictment  under  the 
statute  (R.  S.  of  1838,  p.  216),  for  selling 
clocks  without  a  license,  must  show  that  the 
defendant  made  vending  clocks  his  busi- 
ness,    Alcott  V.  State,  8  Blackf.  6. 

7.  In  Maine,  an  indictment  under  the  stat- 
ute (R.  S.  ch.  27,  ?  20),  making  it  unlawful 
for  peddlers  and  dealers  to  carry  for  sale,  or 
offer  for  sale,  or  offer  to  obtain,  or  to  obtain, 
orders  for  the  sale  or  delivery  of  any  spirit- 
uous liquors,  which  charges  a  violation  of  all 
of  the  acts  prohibited,  is  bad  for  duplicity. 
State  v.  Smith,  31  Maine,  386;  s.  c.  2 
Green's  Crim.  Eeps.  462. 

8.  Burden  of  proof  On  the  trial  of  an 
indictment  for  peddling  goods  not  of  the 
production  or  manufi^cture  of  this  country, 
the  burden  of  proof  is  on  the  prosecution 


to  show  that  the  goods  are  foreign.    Com. 
v.  Samuel,  2  Pick.  103. 


Iperjuri)  aub  Subornation 
of  pcrjurij. 

1.  Perjury. 

(«)   When  and  how   committed. 
ill)  Indictment. 

(c)  Evidence. 

(d)  Verdict. 

2.  SURORNATION   OF   PERJURY. 

(a)  Bequisites. 

(b)  Indictment. 
((•)  Ecidence. 

1.  Perjury, 
(«)   When  and  how   committed. 

1.  Meaning  of.  Perjury  is  the  willful 
taking  of  a  false  oath  by  a  person  who 
being  required  to  testify  in  a  judicial  pro- 
ceeding, swears  absolutely  in  a  matter  ma- 
terial to  the  issue.  If  the  testimony  though 
false,  be  immaterial,  it  is  not  perjury ;  and 
it  lies  on  the  pi-osecution  to  show  that  it  is 
material.  Com.  v.  Pollard,  12  Mete.  225; 
State  V.  Simons,  30  Vt.  620.  A  person  can- 
not be  convicted  of  perjury  because  the  jury 
believe  that  he  had  no  reasonable  ground 
for  the  opinion  he  expressed.  Com.  v. 
Brady,  5  Gray,  78. 

2.  In  Tennessee,  an  early  statute  defined 
perjury  as  follows:  "When  a  lawful  oath  or 
affirmation  is  administered  in  some  judicial 
proceeding,  to  a  person  who  swears  or  af- 
fii-ms  willfully,  absolutely,  and  falsely,  in 
a  matter  material  to  the  issue,  or  point  in 
question."     State  v.  Wall,  9  Yerg.  347. 

3.  Perjury  consists  in  s^^-earing  falsely  and 
corruptly  contrary  to  the  belief  of  the  wit- 
ness, and  not  in  swearing  rashly  and  incon- 
siderately according  to  his  belief.  U.  S.  v. 
Shelburne,  1  Bald.  350;  Com.  v.  Pollard, 
supra. 

4.  May  be  under  general  oath.  Where 
a  person  swears  falsely  uuder  a  general  oath, 
when  he  might  have  taken  a  more  restricted 
oath,  he  will  be  guilty  of  perjury.  State  v. 
Keene,  26  Maine,  83. 


PERJURY  AND   SUBORNATION  OF  PERJURY. 


497 


Perjury. 


When  and  How  Committed. 


5.  Swearing  to  fact  without  any  knowl- 
edge of  it.  A  person  may  commit  perjury 
notwithstandicg  lie  believes  what  he  swears, 
if  he  have  no  probable  cause  for  his  belief. 
State  V.  Knox,  Phil.  N.  C.  313. 

6.  Perjury  may  be  committed  not  only  by 
swearing  to  material  facts  known  not  to  be 
true,  but  in  swearing  to  them  without  any 
knowledge  on  the  subject.  State  v.  Gates, 
17  New  Hamp.  373. 

7.  The  following  charge  on  a  trial  for 
perjury,  was  held  correct:  That  if  the  fact 
sworn  to  by  the  prisoner  was  material, 
although  it  was  true,  yet  if  the  jury  believed 
from  the  evidence  that  the  jirisoner  at  the 
time  of  such  testimony  did  not  know  it  to 
be  true,  or  have  such  knowledge  or  informa- 
tion concerning  it  as  fairly  justified  him  in 
believing  it  true,  he  could  properly  be 
convicted.  People  v.  McKinney,  3  Parkei', 
510. 

8.  "Where  it  appeared  that  the  prisoner 
had  testified  that  he  was  present  at  the  mak- 
ing of  a  contract  between  certain  parties, 
and  it  wal  proved  that  although  the  con- 
tract was  made  at  such  time  and  j)lace,  yet 
that  the  prisoner  was  not  present  and  had  no 
knowledge  of  it,  it  was  held  that  such  evi- 
dence was  circumstantially  material,  and 
that  the  prisoner  was  guilty  of  perjury.    lb. 

9.  Swearing  contrary  to  belief.  Peijury 
may  be  committed  by  falsely  swearing  to  an 
account  that  it  is  just  to  the  witness's  belief. 
Patrick  v.  Smoke,  3  Strobh.  147. 

10.  The  cashier  of  a  bank  who  swears 
that  the  return  made  by  him  "is,  according 
to  his  best  knowledge  and  belief,  true," 
knowing  at  the  time  that  it  is  false,  is 
guilty  of  perjury.  Com.  v.  Dunham,  Thach. 
Crim.  Cas.  519. 

11.  A  witness  who  swears  that  a  thing  is 
so,  or  that  he  believes  it  to  be  so,  when  in 
truth  he  does  not  believe  it  to  be  so,  takes  a 
false  oath,  thougli  the  fact  be  really  as 
stated.     State  v.  Cruikshank,  6  Blackf.  62. 

12.  What  material.  Where  several  are 
jointly  indicted  for  an  assault,  evidence  as 
to  the  acts  of  either  is  material,  and  if 
fully  and  falsely  given,  it  is  perjury.  State 
V.  Norris,  9  New  Hamp.  96. 

13.  Land  was  conveyed  by  A.  to  B.,  which 

33 


had  previously  been  mortgaged  to  C.  .Judg- 
ment of  foreclosure  having  been  recovered 
by  C,  a  petition  for  review  was  filed  by  B., 
setting  forth  the  discovery  of  new  evidence, 
and  claiming  a  technical  payment  of  the 
debt  secured  by  the  mortgage.  A.  swore  at 
the  hearing  of  the  petition,  that  he  informed 
B.  when  the  conveyance  was  made,  of  the 
existence  of  the  mortgage.  A.  being  in- 
dicted for  perjury,  a  motion  made  before 
plea,  to  quash  the  indictment,  on  the  ground 
of  the  immateriality  of  such  evidence  to 
the  main  issue  at  the  hearing,  was  denied. 
Com.  V.  Farley,  Th.ich.  Crim.  Cas.  654. 

14.  Where  one  summoned  as  a  trustee  dis- 
charged himself  by  disclosing  that  he  had 
appropriated  the  funds  of  the  principal  de- 
fendant in  his  hands  to  the  payment  of 
money  due  him  by  such  defendant,  without 
disclosing  that  the  debt  was  due  him  on  a 
usurious  contract,  and  being  indicted  for 
perjury  in  such  statement,  and  the  principal 
defendant  being  examined  as  a  witness  in 
support  of  the  charge,  he  denied  the  exiiit- 
ence  of  any  contract  between  him  and  the 
trustee  for  the  payment  by  him  to  the  latter, 
of  any  more  than  lawful  interest. — Held  that 
if  his  testimony  was  false,  he  was  liable  for 
perjury.     Com.  v.  Farley,  supra. 

15.  A.,  who  was  summoned  as  a  trustee  of 
B.,  stated  in  his  answer,  that  from  the  pro- 
ceeds of  property^ placed  in  his  hands  by  B. 
as  security  for  the  indebtedness  of  C,  he  had 
received  a  sum  of  money,  which  pursuant  to 
an  agreement  between  him  and  C,  he  had 
appropriated  in  part  discharge  of  the  indebt- 
edness of  C,  and  that  he  had  appropriated, 
paid  over,  and  accounted  to  C.  for  the  money 
so  received.  After  A.  was  discharged  as 
trustee,  C.  entered  a  complaint  against  him 
before  the  grand  jury  for  perjury,  and  swore 
that  there  never  was  any  agreement  between 
him  and  A.  for  the  payment  by  him  to  the 
latter  of  more  than  lawful  interest  on  any  of 
the  transactions  between  them — Held  that 
the  evidence  of  C.  was  material,  and  if  false, 
he  was  guilty  of  perjury.  Com.  v.  Parker,  3 
Cush.  313. 

16.  False  statement  need  not  tend  di- 
rectly to  prove  the  issue.  To  constitute 
perjury,  the  fact  sworn  to  need  not  be  im- 


498 


PERJURY  AND   SUBORNATION   OF   PERJURY. 


Perjury, 


When  and  How  Committed. 


mediately  material  to  the  issue,  provided  it 
has  such  a  direct  connection  with  a  material 
fact  as  to  give  weight  to  the  testimony  on 
that  point ;  and  it  has  been  held  tliat  a  false 
answer  to  a  question  put  to  the  witness  for 
the  purpose  of  impairing  his  credit  as  to 
points  material  to  the  issue,  is  perjury,  es- 
pecially if  the  witness  be  cautioned  as  to  his 
answer.  State  v.  Norris,  9  New  Hamp.  96 ; 
State  V.  Hattaway,  2  Nott  &  McCord,  118; 
Wood  V.  People,  59  N.  Y.  117;  Com.  v. 
Grant,  116  Mass.  17;  State  v.  Strat,  1  Mur- 
phey,  124. 

17.  Perjury  may  be  committed  in  swearing 
falsely  to  a  collateral  matter  with  intent  to 
&ustain  the  testimony  on  some  other  point ; 
but  such  collateral  matter  must  be  material 
to  the  issue.  Studdard  v.  Linville,  3  Hawks, 
474;  State  v.  Wall,  9  Yerg.  347;  State  v. 
Shupe,  16  Iowa,  86. 

18.  The  swearing  falsely  by  the  prosecutor 
upon  matters  immaterial  to  the  issue,  who  is 
examined  on  the  trial  of  an  indictment  for 
assault  and  battery,  with  the  view  of  miti- 
gating the  sentence,  is  perjury.  State  v. 
Keenau,  8  Rich.  456.  So,  if  on  a  trial  for 
assault  and  battery,  a  witness  falsely  swears 
to  matters  in  aggravation,  he  is  guilty  of  per- 
jury.    Stevens  v.  State,  1  Swan,  157. 

19.  "Where  the  false  testimony  is  in- 
admissible. Although  testimony  be  incom- 
petent and  inadmissible  in  the  action  in 
which  it  is  given,  yet  if  it  is  false,  perjury 
may  be  predicated  upon  it.  Chamberlain  v. 
People,  23  N.  Y.  85. 

20.  Where  the  witness  is  improperly 
sworn.  Perjury  may  be  committed  by  a 
person  who  is  erroneously  sworn.  State  v. 
Molicr,  1  Dev.  263 ;  Montgomery  v.  State, 
10  Ohio,  220;  Van  Steenburgh  v.  Kortz,  10 
Johns.  167. 

21.  Failure  from  defect  of  proof.  If  a 
person  swear  falsely  in  respect  to  any  fact 
relative  to  the  issue  being  tried,  he  is  guilty 
of  perjury,  although  the  case  failed  from  de- 
fect of  proof  of  another  fact,  and  although 
such  other  fact  had  no  existence.  AVood  v. 
People,  59  N.  Y.  117. 

22.  Immaterial  statements.  A  witness 
having  sworn  that  he  was  present  at  a  cer- 
tain transaction,  was  asked  where  he  lived 


at  the  time,  and  he  answered,  near  the  pai'- 
ties ;  and  it  was  proved  that  he  did  not  then 
live  in  the  State,  it  was  held  that  it  was  not 
swearing  to  such  a  material  fact  as  consti- 
tuted perjury.  State  v.  Hattaway,  2  Nott 
&  McCord,  118. 

23.  An  applicant  for  naturalization  is  not 
guilty  of  perjury  in  swearing  falsely  to  his 
residence  in  the  State  previous  to  his  appli- 
cation ;  the  oath  of  the  applicant  on  this 
point  being  voluntary  and  immaterial  under 
the  act  of  Congress  of  1802.  State  v.  Helle, 
2  Hill,  S.  C.  290. 

24.  If  any  other  statements  than  those  re- 
quired by  law  be  introduced  in  a  petition 
for  a  habeas  corpus^  perjury  cannot  be  predi- 
cated upon  them.  A  false  oath  that  the  ac- 
cused "  is  the  father  and  proper  custodian 
of  Catharine,  or  Kate,  a  colored  girl,"  on  an 
application  for  a  writ  of  habeas  corpus,  to 
bring  up  said  Catharine,  is  not  enough  to 
sustain  a  conviction  for  perjury.  Gibson  v. 
State,  44  Ala.  17. 

25.  Mode  of  statement  not  important. 
It  is  not  a  valid  objection  to  an  indictment 
for  perjury  which  alleges  that  the  defend- 
ant knowingly  and  falsely  made  statements 
under  oath  which  were  material,  that  either 
before  or  after  the  oath  was  administered 
the  statements  made  were  reduced  to  writ- 
ing by  another  person  and  signed  by  the 
defendant;  the  offense  consisting  in  the  false 
statement  of  material  facts  under  oath,  know- 
ing them  to  be  false,  without  reference  to 
the  mode  of  statement,  whether  oral  or  writ- 
ten.    Com.  V.  Hatfield,  107  Mass.  227. 

26.  Need  not  have  caused  injury.  It  is 
the  act  of  false  swearing  in  respect  to  a  mat- 
ter material  to  the  point  of  inquiry  which 
constitutes  perjury,  and  not  the  injury  it 
may  have  done  individuals,  or  the  degree  of 
credit  which  was  given  to  the  testimony. 
Where  it  was  charged  that  the  accused 
falsely  testified  as  to  his  qualifications  to  go 
bail  in  the  sum  of  $3,000,  that  he  was  worth 
$40,000  and  owned  400  tons  of  hay,  which 
was  in  a  certain  village  and  worth  $8  per 
ton,  it  was  held  that  the  material  point  of 
inquiry  was  not  whether  the  defendant  was 
worth  the  definite  sum  of  $40,000,  but 
whether  he  was  able  to  respond  to  the  sum 


PEKJUEY  AND  SUBOKNATION  OF  PERJURY 


499 


Perjury. 


When  and  How  Committed. 


of  $3,000,  nor  if  defendant  owned  the  hay, 
■whether  it  was  situated  in  the  village  named, 
or  was  worth  precisely  $8  a  ton.  Pollard  v. 
People,  69  111.  148. 

27.  Where  on  the  trial  of  an  indictment 
for  perjury  it  appeared  that  the  defendant 
having  offered  himself  as  bail, falsely  swore  to 
his  ownershij)  of  jjroperty,  it  was  held  that, 
if  he  did  not  own  all  the  items  of  property 
enumerated,  it  was  false  and  material  as  a 
representation  of  his  responsibility,  even 
though  a  part  of  the  property  was  sufficient 
to  cover  the  amount  of  the  recognizance. 
Com.  V.  Hatfield,  107  Mass.  227. 

28.  False  oath  must  have  been  taken 
willfully.  If  the  prisoner  took  the  oath 
pursuant  to  the  advice  of  his  counsel,  be- 
lieving that  he  might  lawfully  do  so,  the 
element  of  corrupt  intent  would  be  wanting; 
•)ut  not  if  he  sought  such  advice  as  a  mere 
cover.  Tuttle  v.  People,  36  K.  Y.  431  ; 
Hood  v.  State,  44  Ala.  81. 

29.  A  bankrupt  who  willfully  and  fraudu- 
lently exhibits  a  false  schedule  of  his  prop- 
erty is  guilty  of  perjury;  but  not,  if  acting 
under  the  advice  of  counsel,  he  igncrantly 
omits  items  from  his  schedule.  State  v. 
Conner,  3  McLean,  573 ;  Com.  v.  Calvert,  1 
Va.  Cas.  181. 

30.  Where  a  bankrupt  intentionally  leaves 
out  of  his  schedule  part  of  his  property,  and 
swears  that  his  schedule  contains  a  true 
account  of  all  his  eflects,  he  is  guilty  of  per- 
jury under  the  act  of  Congress.  U.  S.  v. 
Nichols,  4  McLean,  23;  U.  S.  v.  Dickey,  1 
Morris,  412. 

31.  Subject  of  offense.  Perjury  may  be 
committed  in  swearing  falsely  in  an  affidavit 
to  hold  to  bail,  or  for  a  continuance.  State 
V.  Johnson,  7  Blackf.  49;  or  in  swearing 
falsely  in  an  affidavit  administered  by  a 
justice  of  the  peace  as  the  foundation  for 
obtaining  a  writ  of  habeas  corpm^.  White  v. 
State,  1  Smed.  &  Marsh.  149;  but  not  by 
swearing  falsely  in  such  affidavit  as  to  mat- 
ters of  inducement  merely.  lb. ;  or  in  swear- 
ing falsely  to  an  affidavit  to  obtain  a  certi- 
orari.    Pratt  V.  Price,  11  Wend.  127. 

32.  It  is  perjury  to  swear  falsely  before  a 
justice  of  the  peace  in  a  matter  isubmitted  to 
arbitration   by  a  rule  of  court  without  the 


consent  of  the  parties.  State  v.  Stephenson, 
4  McCord,  165 ;  but  not  in  a  parol  submis- 
sion not  made  a  rule  of  court.  Mahan  v. 
Berry,  5  Mo.  21.  To  take  a  false  oath  under 
the  insolvent  debtor's  act  is  perjuiy  at  com- 
mon law.  Com.  V.  Calbert,  1  Bald.  350. 
In  Connecticut,  where  a  person  took  the 
oath  provided  for  poor  imprisoned  debtors 
falsely  and  corruptly  before  a  magistrate,  it 
was  held  perjury.  Arden  v.  State,  11  Conn. 
408.  And  it  is  perjury  for  the  defendant  in 
an  action  of  debt  on  a  bond  to  swear  in  an 
affidavit  before  the  justice  trying  the  cause, 
that  he  did  not  execute  the  bond.  Com.  v. 
Litton,  6  Graft.  691. 

33.  It  is  perjury  for  a  witness  falsely  to 
swear  that  he  was  present  and  saw  the  due 
execution  and  acknowledgment  of  a  deed. 
Where  a  person  corrujitly  erased  the  signa- 
ture of  the  subscribing  witness  to  a  deed, 
and  caused  the  instrument  to  be  recorded 
by  falsely  swearing  that  he  was  himself  the 
subscribing  witness,  it  was  held  that  he 
was  guilty  of  perjury.  Tuttle  v.  People,  36 
N.  Y.  431 ;  2  N.  Y.  Trans,  of  Appeals,  306. 

34.  Where  a  person  sued  before  a  justice 
of  the  peace  on  a  promissory  note,  filed  an 
affidavit  as  a  plea,  stating  that  he  did  not 
execute  the  note,  and  that  it  was  wholly  un- 
just and  forged,  it  was  held  that  perjury 
might  be  assigned  on  it.  State  v.  Roberts, 
11  Humph.  539. 

35.  A  false  affidavit  to  procure  a  search 
warrant,  in  order  to  be  the  subject  of  perjury, 
need  not  charge  the  oSense  on  any  particular 
person.  Carpenter v.State,4  How. (Miss.)  163. 

36.  Swearing  falsely  iu  affidavits  by  draft- 
ed men  claiming  exemption  from  military 
service  is  perjury.  U.  S.  v.  Sonachall,  4 
Bis.  425. 

37.  In  naturalization  proceeding.  In 
Pennsylvania,  swearing  falsely  in  a  naturali- 
zation proceeding  is  perjury  at  common  law. 
Rump  V.  Com.  30  Penn.  St.  475.  And  see 
State  V.  Whittemore,  50  New  Ilamp.  245. 
But  in  New  York,  it  has  been  held  that  per- 
jury in  a  naturalization  proceeding  before  a 
county  court  is  an  offense  against  the  laws 
of  the  United  States,  of  which  the  federal 
courts  have  exclusive  jurisdiction.  People 
v.  Sweetman,  3  Parker,  358. 


500 


PERJUKY  AND   SUBORNATION   OF  PERJURY. 


Perjury. 


When  and  How  Committed. 


38.  Before  grand  jury.  Tlie  rule  that 
the  proceedings  before  the  grand  jury  shall 
be  secret,  will  not  protect  witnesses  who 
commit  perjury  in  testifying  before  it  from 
prosecution.     People  v.  Young,  81  Cal.  56.3. 

39.  By  juror.  If  a  juror,  when  examined 
as  to  his  competency  and  qualifications,  will- 
fully and  corruptly  swears  to  what  is  not  true, 
he  is  guilty  of  perjury.  State  v.  Wall,  9 
Yerg.  347. 

40.  In  aflB.davit  required  by  statute.  To 
constitute  perjury  in  swearing  falsely  to  an 
aftidavit  required  by  statute,  it  is  not  neces- 
sary that  the  affidavit  should  be  in  the  words 
of  the  statute.  It  is  sufficient  that  it  sub- 
stantially conforms  to  the  requirements  of 
the  act.     State  v.  Dayton,  3  Zabr.  49. 

41.  Amendment  or  repeal  of  statute. 
Where  a  statute  prescribes  certain  oaths,  and 
false  swearing  in  taking  them  is  declared 
perjury,  and  by  a  subsequent  statute  the 
original  act  is  amended,  and  the  form  of  the 
oaths  altered,  false  swearing  under  the 
amendment  is  peijury,  although  it  be  not 
expressly  declared  to  be  so  in  the  amended 
act.     Campbell  v.  People,  8  Wend.  63G. 

42.  The  repeal  of  a  statute  will  bar  a 
prosecution  for  perjury  committed  under 
the  statute  while  it  was  in  existence.  U.  S. 
V.  Passmore,  4  Dall.  372.  Therefore,  al- 
though a  false  oath  taken  before  commis- 
sioners in  bankruptcy  is  perjury,  yet  the 
moment  the  law  is  repealed  it  ceases  to  be  a 
punishable  ofiense.  Anon.  1  Wash.  C.  C. 
84. 

43.  Tribunal  administering  oath  must 
have  had  jurisdiction.  To  constitute  per- 
jury, it  is  essential  that  the  court  have 
jurisdiction  of  the  subject-matter,  and  power 
to  administer  oaths.  Pankey  v.  People,  1 
Scam.  80 ;  Boling  v.  Luther,  2  Taylor,  202. 
But  where  the  court  has  jurisdiction  of  the 
parties  and  the  subject-matter,  perjury  may 
be  committed  although  the  proceedings  are 
not  strictly  regular.  State  v.  Lavalley,  9 
Mo.  834 ;  State  v.  Hall,  7  Blackf.  25 ;  U.  S. 
Y.  Babcock,  4  McLean,  113. 

44.  Perjury  may  be  committed  by  taking 
a  false  oath  before  a  magistrate  authorized 
to  administer  oaths,  in  pursuance  of  a  regu- 
lation of  the  U.  S.  treasury  department,  or 


in  conformity  with  the  practice  and  usage  of 
the  treasury  department.  U.  S.  v.  Bailey, 
0  Peters,  238. 

45.  Where  an  oath  which  was  required  to 
be  taken  before  a  collector  of  customs,  was 
falsely  made  before  a  deputy  of  the  collector, 
it  was  held  ground  for  an  indictment  for 
perjury.     U.  S.  v.  Barton,  Gilpin,  439. 

46.  Where  an  indictment  alleged  that 
perjury  was  committed  on  a  trial  before  a 
justice  and  six  jurors,  and  the  trial  seemed 
to  have  been  with  the  consent  of  the  parties, 
it  was  held  that  the  consent  was  a  waiver  of 
the  irregularity  as  to  the  jury.  State  v.  Hall, 
7  Blackf.  25. 

47.  Oath  administered  by  unauthorized 
person.  It  is  a  good  defense  to  an  indict- 
ment for  perjury,  that  the  officer  who  ad- 
ministered the  alleged  false  oath  acted  under 
a  void  appointment.  Muir  v.  State,  8  BlackL 
154. 

48.  In  South  Carolina,  where  a  magistrate 
had  taken  the  oath  of  qualification  be- 
fore an  associate  judge,  and  was  therefore 
not  duly  qualified,  it  was  held  that  a  person 
could  not  be  convicted  of  perjury  in  swear- 
ing falsely  before  such  magistrate.  State  v. 
Hayward,  1  Nott  &  McCord,  546. 

49.  Extrajudicial  oath.  Perjury  cannot 
be  predicated  upon  an  extrajudicial  oath. 
U.  S.  v.  Babcock,  4  McLean,  113.  It  cannot 
be  assigned  upon  an  answer  in  chancery, 
unless  the  bill  call  for  a  sworn  answer. 
Silver  v.  State,  17  Ohio,  365. 

50.  It  is  not  perjury  to  swear  falsely  to  a 
protest  before  a  notary  puljlic  as  part  of  the 
preliminary  proofs  in  case  of  a  marine  loss, 
the  oath  in  such  case  being  voluntary  and 
extrajudicial.  People  v.  Travis,  4  Parker,. 
213. 

51.  Where  the  clerk  of  the  United  States 
Circuit  Court  administered  an  oath  as  to  the 
travel  of  a  witness,  which  was  not  required 
by  law  or  by  a  rule  of  court,  it  was  held  not 
perjury.     U.  S.  v.  Babcock,  supra. 

52.  A  petition  for  divorce  having  been 
filed  in  the  Court  of  Common  Pleas  of  Indi- 
ana by  a  non-resident,  falsely  alleging  that 
he  was  a  resident  of  the  county,  and  that  he 
had  resided  in  the  State  one  year,  and  that 
notice  to  the  absent  defendant  had  been  duly 


PERJUHY  AND  SUBOENATION  OF  PERJURY. 


501 


Perjury. 


Indictment. 


published,  the  deposition  of  a  witness  was 
taken  before  a  notary  public  in  Ohio,  testi- 
fying to  the  fact  of  residence,  and  the  causes 
of  divorce  specified  in  the  petition.  Held 
that  the  deposition  of  the  witness  was  not 
extrajudicial,  and  that  perjury  might  be 
assigned  upon  it.  Stewart  v.  State,  32  Ohio, 
N.  S.  477 ;  s.  c.  1  Green's  Grim.  Eeps.  537. 

(b)  Indictment. 

53.  General  requisites.  In  an  indict- 
ment for  perjury  charged  to  have  been  com- 
mitted on  the  trial  of  a  cause  before  the 
court  or  an  officer  thereof,  it  is  essential,  1st, 
That  the  name  of  the  court  should  be  stated, 
and  that  such  court  should  have  a  legal  ex- 
istence. 2d,  That  the  offense  should  be 
charged  to  have  been  committed  in  the 
county  in  which  the  indictment  was  found. 
3d,  That  it  should  appear  on  the  face,  or  be 
alleged  in  the  body  of  the  indictment,  that 
the  evidence  on  which  the  assignment  of 
perjury  is  based,  was  material  to  the  deter- 
mination of  the  issue,  or  at  least  proper  to 
be  offered  on  the  trial  of  such  issue.  Guston 
v.  People,  61  Barb.  35  ;  4  Lans.  487. 

54.  Must  show  that  oflfense  was  com- 
mitted, in  a  judicial  proceeding.  An  in- 
dictment for  peijury  must  show  that  the 
oath  was  had  in  a  judicial  proceeding. 
Such  an  indictment  charged  that  B.  exhib- 
ited his  certain  bill  of  comjjlaint  in  writing 
against  C.  and  others  named,  in  the  Court 
of  Chancery  within  and  for  the  county  of  O., 
then  being  in  session,  which  said  bill  was 
directed  to  the  chancellor  of  the  2d  judicial 
circuit,  "  as  in  and  by  said  bill  of  complaint 
of  the  said  B.,  remaining  filed  of  record  in 
the  said  Court  of  Chancery,  amongst  other 
things,  will  more  fully  appear;"  that  0.  made 
oath  to  his  answer  to  said  bill  in  due  form 
before  a  justice  of  the  peace,  setting  forth  in 
what  respects  such  answer  was  false.  Held 
sufficient  on  the  authority  of  the  precedent 
in  Chitty's  Grim.  Law  (vol.  3,  p.  SSG); 
and  that  it  was  not  necessary  to  allege  that 
C.  was  called  upon  to  make  answer  under 
©ath,or  that  the  bill  of  complaint  was  served 
upon  him.     State  v.  Ciiambcrlin,  30  Vt.  559. 

55.  An  indictment  for  perjury  alleged  that 
C,  on  the  25th  of  June,  18G0,  brought  her 


petition  to  the  Supreme  Court  for  divorce, 
"  stating  in  her  petition,"  &c.,  "  whereupon 
it  became  necessary  to  take  the  testimony  of 
witnesses  in  the  jDremises,"  and  that  the 
accused  "  appeared  before  W.,  a  notary 
public,  and  made  his  deposition  as  to  facts 
in  the  premises,"  &c.  Held  that  it  suffi- 
ciently appeared  that  the  alleged  perjury 
was  committed  in  a  judicial  proceeding. 
State  V.  Sleeper,  37  Vt.  132 ;  State  v.  Ma- 
goon,  lb. 

56.  It  is  not  sufficient  to  aver  that  "the 
perjury  was  committed  in  a  course  of  jus- 
tice." Where  the  perjury  was  alleged  to 
have  been  committed  in  answers  to  certain 
interrogatories  on  a  writ  of  scire  facias,  and 
there  was  no  averment  that  the  interroga- 
tories were  exhibited  in  any  cause  or  pro- 
ceeding pending  or  at  issue,  or  on  trial  be- 
fore the  court,  the  indictment  was  held 
insufficient.     State  v.  Hanson,  39  Maine,  337. 

57.  "Where  an  indictment  for  perjury 
charged  to  have  been  committed  in  a  pub- 
lic prosecution,  did  not  state  whether  it  was 
on  the  trial  of  an  indictment  or  presentment, 
it  was  held  fatally  defective.  Steinston  v. 
State,  6  Yerg.  531. 

58.  Must  state  before  what  tribunal  the 
oath  was  administered.  The  indictment 
should  set  out  the  style  of  the  court  before 
which  the  perjuiy  is  alleged  to  have  been 
committed.    State  v.  Street,  1  Murphey,  156. 

59.  An  indictment  for  perjury  which 
charges  that  the  defendant  went  before  A. 
B.,  a  justice,  and  was  sworn  before  A.  B., 
being  such  justice,  shows  with  sufficient  cer- 
tainty by  whom  the  oath  was  administered. 
State  v.  Ellison,  8  Blackf.  235. 

60.  Must  show  that  court  or  officer  had 
authority  to  administer  the  oath.  An  in- 
dictment for  perjury  must  show  with  cer- 
tainty that  at  the  time  of  the  alleged  offense, 
the  tribunal  which  administered  the  oath, 
and  before  which  the  testimony  was  given, 
had  jurisdiction  of  the  matter  on  trial. 
State  V.  Plummer,  50  Maine,  217. 

61.  It  is  sufficient  to  aver  that  an  issue 
was  duly  joined,  that  it  came  on  to  be  tried 
in  due  form  of  law,  and  that  the  judge  had 
competent  authority  to  administer  the  oath 
in  question,  without  expressly  stating  that 


502 


PERJURY  AND  SUBORNATION  OF  PERJURY. 


Perjury, 


Indictment. 


the  court  had  jurisdiction.  State  v.  New- 
ton, 1  Iowa,  160;  Com.  v.  Knight,  13  Mass. 
274;  Hallock  v.  State,  11  Ohio,  400;  People 
V.  Phelps,  5  Wend.  9. 

62.  Where  an  indictment  for  perjury  al- 
leged to  have  been  committed  in  swearing 
to  a  deposition  taken  to  be  used  in  a  libel 
for  divorce  under  a  rule  of  court  requiring 
testimony  in  such  case  to  be  taken  before 
a  commissioner  appointed  by  the  court, 
charged  that  the  oath  was  administered  by 
the  commissioner  on  a  day  mentioned,  he 
"then  being  a  justice  of  the  peace,  and  duly 
authorized  to  administer  said  oath,"  and 
that  the  commissioner  was  appointed  by  the 
court  at  a  term  subsequent  to  the  time  at 
which  the  oath  was  administered ;  it  was 
held  that  the  latter  averment  might  be  re- 
jected as  surplusage.  State  v.  Langley,  34 
New  Hamp.  529. 

63.  An  indictment  for  peijury  on  an  oath 
taken  before  a  clerk  of  the  Circuit  Court, 
must  show  that  the  oath  upon  which  it  was 
founded  was  one  which  the  clerk  was  com- 
petent to  administer,  a  general  averment 
that  the  clerk  had  the  requisite  power,  will 
not  be  sufficient.  IMcGregor  v.  State,  1 
Carter,  232. 

64.  An  indictment  ibr  per'ury  charged  to 
have  been  committed  before  the  grand  jury, 
must  show  that  the  evidence  related  to  an 
oflfense  committed  in  the  county.  Com.  v. 
Pickering,  8  Gratt.  638. 

65.  Where  perjury  is  charged  to  have  been 
committed  on  the  trial  of  a  former  indict- 
ment, the  finding  of  the  former  indict- 
ment in  the  proper  county,  must  be  alleged, 
and  the  former  indictment  be  set  forth,  or 
so  much  of  it  as  to  show  that  it  charged  an 
offense  committed  in  the  county,  and  of 
which  the  court  had  jurisdiction ;  and  the 
plea  of  the  defendant  to  the  former  indict- 
ment must  be  set  forth.  State  v.  Gallimon, 
2  Ired.  872. 

66.  An  indictment  for  perjury  alleged  to 
have  been  committed  on  an  examination  be- 
fore a  commissioner  of  the  United  States, 
should  state  how,  or  by  whom,  or  under 
what  statute,  or  for  what  purpose,  such  com- 
missioner was  appointed,  that  he  had  au- 
thority to  ailminister  the  oath  ;  that  the  pro- 


ceeding before  him  was  one  in  which  the 
oath  was  required,  and  what  particular 
crime  was  charged.  U.  S.  v.  Wilcox,  4 
Blatchf.  391. 

67.  An  indictment  for  perjury  in  swearing 
falsely  to  an  affidavit  made  for  the  purpose  of 
obtaining  an  audit  of  an  unliquidated  claim 
against  the  city  of  Buffalo,  by  the  common 
council  of  that  city,  did  not  aver  that  the 
affidavit  was  authorized  by  the  city  charter, 
or  that  it  was  made  for  the  purpose  required 
thereby,  or  that  the  claim  to  which  it  was 
appended  was  ever  presented  to  the  common 
council  for  audit.  Held  insufficient.  Ort- 
ner  v.  People,  11  N.  Y.  Supm.  N.  S.  323. 

68.  An  indictment  for  perjury  in  taking  a 
false  oath  before  a  regimental  court  of  in- 
quiry, should  state  the  number  of  officers 
composing  the  court,  and  their  rank,  so  as  to 
show  that  the  court  of  inquiry  was  legally 
organized,  and  also  state  the  subject  of  in- 
quiry before  the  court.  Connor  v.  Com.  2 
Va.  Cas.  30. 

69.  In  an  indictment  for  perjui^  at  a  gen- 
eral election,  an  allegation  of  jurisdiction  to 
administer  the  oath  is  sufficient,  without 
stating  in  detail  the  names  or  the  number  of 
the  inspectors  who  constituted  the  board. 
And  the  indictment  need  not  state  that  the 
inspectors  were  acting  for  the  ward  in  which 
the  alleged  perjury  was  committed.  The 
averment  that  a  general  election  was  held 
pursuant  to  the  laws  and  Constitution  of  the 
State  before  a  board  of  inspectors  legally 
constituted  and  authorized  according  to  law, 
is  sufficient,  without  stating  that  the  place 
had  been  legally  appointed.  Burns  v.  Peo- 
ple, 59  Barb.  531  ;  5  Lans.  189. 

70.  Where  the  perjury  is  charged  to  have 
been  committed  on  the  trial  of  a  cause  at  a 
special  term  of  the  court,  the  indictment 
need  not  set  forth  the  order  of  the  judge 
directing  such  special  term,  nor  the  desig- 
nation by  the  governor,  of  the  judge  who 
held  it.     State  v.  Bedford,  6  Ired.  5. 

71.  In  an  indictment  against  an  insolvent 
debtor  for  taking  a  false  oath  on  presenting 
his  petition  and  the  inventory  of  his  estate, 
it  is  sufficient  to  aver  tliat  the  officer  had 
lawful  and  competent  authority  to  adminis- 
ter the  oath,  without  setting  forth  the  facts 


PERJURY  AND  SUBORNATION   OF  PERJURY. 


503 


Perjury. 


Indictment. 


which  gave  the  officer  jurisdiction.     People 
V.  Phelps,  5  Wend.  9. 

72.  An  indictment  for  perjury  which 
shows  that  the  court  had  no  authority  to 
administer  the  oath  is  bad.  State  v.  Fur- 
long, 2G  Maine,  69. 

73.  Must  show  nature  of  proceedings. 
At  common  law,  where  the  oath  upon  which 
the  perjury  is  assigned  is  taken  in  court,  it 
is  necessary  to  set  forth  the  pleadings,  the 
proceedings  on  the  trial,  the  evidence,  and 
the  assignment  of  perjury  upon  it.  In 
Tennessee  it  is  sufficient  to  state  the  nature 
of  the  proceeding  in  which  the  false  oath 
was  taken,  the  court  or  person  who  adminis- 
tered the  oath;  and  that  it  or  he  had  author- 
ity to  do  so.  State  v.  Stillmau,  7  Cold.  Tenn. 
341. 

74.  In  North  Carolina,  the  indictment 
need  not  set  forth  the  pleadings  in  the  case 
in  which  the  perjury  is  charged  to  have 
been  committed,  the  statute  (of  1843,  ch.  49) 
having  changed  the  common  law  in  that 
respect.     State  v.  Hoyle,  6  Ired.  1. 

75.  An  information  for  perjury  should  set 
out  the  facts  or  show  enough  of  the  nature 
of  the  jwoceedings  and  of  the  purposes  for 
which  the  oath  was  taken,  to  make  it  appear 
that  the  oath  was  either  "  required  or  au- 
thorized by  law."  When  the  perjury  is 
charged  to  have  been  in  swearing  to  an 
answer,  the  bill  and  answer  should  be  set 
out.  Com.  V.  Lodge,  2  Graft.  579.  Where 
an  information  charged  that  the  offense  was 
committed  in  swearing  to  a  bill  in  equity, 
but  did  not  show  on  its  face  that  the  bill 
was  of  a  character  to  require  to  be  verified 
by  the  oath  of  the  complainant  or  of  any 
other  person,  it  was  held  fatally  defective ; 
the  general  allegation  that  the  defendant 
was  "lawfully  required  to  declare  and  de- 
pose "  not  being  sufficient.  People  v.  Gaige, 
26  Mich.  30;  s.  c.  1  Green's  Crim.  Reps. 
524. 

76.  An  indictment  for  perjury  alleged  to 
have  been  committed  in  testifying  before  a 
grand  jury  need  not  set  out  the  facts  con- 
stituting the  offense  which  was  under  inves- 
tigation by  the  grand  jury,  nor  aver  that  the 
party  charged  with  the  offense  was  guilty. 
State  V.  Schill,  27  Iowa,  2G3. 


77.  An  indictment  charging  that  a  juror 
swore  falsely  and  corruptly  upon  his  voir 
dire  that  he  had  not  formed  or  expressed  an 
opinion,  must  allege  that  an  issue  or  ques- 
tion as  to  the  competency  of  jurors  was 
submitted  to  the  determination  of  the  court. 
State  V.  Wall,  9  Yerg.  347 ;  State  v.  Moffatt, 
7  Humph.  250. 

78.  An  indictment  for  perjury  charged  to 
have  been  committed  on  a  reference  need 
not  allege  that  there  was  a  final  determina- 
tion of  the  controversy  by  the  referees. 
State  V.  Keene,  36  Maine,  33. 

79.  An  indictment  for  perjury  in  a  jus- 
tice's court,  which  charges  that  the  offense 
was  "  committed  on  the  trial  of  the  cause  or 
issue"  is  not  bad  for  ambiguity.  State,  v. 
Bishop,  1  Chip.  134. 

80.  Where  an  indictment  for  perjury  al- 
leged to  have  been  committed  at  the  hearing 
of  a  petition  for  review,  stated  that  the  par- 
ties were  "  at  issue  "  at  the  hearing,  no  issue 
having  in  fact  been  there  joined,  it  was  held 
that  the  words  were  to  be  taken  in  their 
popular  signification.  Com.  v.  Farley,  Thach. 
Crim.  Cas.  654. 

81.  An  indictment  for  perjury  alleged  to 
have  been  committed  by  a  petitioner  in 
bankruptcy  need  not  set  out  the  petition. 
State  V.  Deming,  4  McLean,  3. 

82.  An  indictment  for  perjury  need  not 
set  out  the  interrogatories  in  answer  to 
which  the  perjury  is  charged  to  have  been 
committed.     State  v.  Bishop,  1  Chip.  124. 

83.  Averment  of  time  and  place.  Where 
the  indictment  omits  to  state  the  day  the 
trial  was  held  at  which  the  perjury  is 
charged  to  have  been  committed,  the  judg- 
ment will  be  arrested.  U.  S.  v.  Bowman,  3 
Wash.  C.  C.  328.  And  a  variance  b'etween 
the  day  charged  and  that  proved  will  be 
fatal.  U.  S.  V.  McNeal,  1  Gallison,  387 ; 
State  V.  Offutt,  4  Blackf.  855. 

84.  Where  an  indictment  for  perjury 
charges  that  the  oath  was  taken  on  the 
trial  of  a  cause  fully  identified,  the  particular 
day  of  the  trial  need  not  be  averred  so  posi- 
tively that  a  variance  of  a  day  would  be 
fatal.     Keator  v.  People,  32  Mich.  484. 

85.  An  indictment  for  perjury  is  insuffi- 
cient which    avers   in    substance   that  the 


504         PERJURY   AND   SUBORNATION    OF   PERJURY. 


Perjury. 


Indictment. 


defendant  appeared  before  the  court  during 
a  certain  term  named,  and  there  made  the 
false  answers,  without  specifying  any  month 
or  day  of  the  month  during  the  term  when 
the  answers  were  laade.  State  v.  Hanson, 
39  Maine,  337. 

86.  x\n  indictment  for  perjury  in  taking 
the  poor  prisoner's  oath  need  not  allege  that 
the  oath  was  administered  to  the  defendant 
in  the  prison,  or  within  the  yard  or  liberty 
of  the  prison.  Com.  v.  Alden,  14  Mass. 
388. 

87.  Where  an  indictment  for  perjury  al- 
leged that  the  offense  was  committed  in  the 
village  of  S.,  and  that  the  court  at  which  it 
was  committed  was  held  in  the  town  of  K., 
it  was  held  that  the  court  would  take  judi- 
cial notice  that  the  village  of  S.  was  situated 
in  the  town  of  K. ;  but  that  as  the  county 
was  averred,  it  was  all  that  was  essential,  the 
precise  locality  in  the  county  being  mere 
matter  of  description.  Wood  v.  People,  3 
N.  Y.  Supm.  N.  S.  506;  s.  c.  8  lb.  381;  59 
K  Y.  117. 

88.  Averment  of  administration  of  oath. 
An  indictment  for  perjury  must  show  that 
the  defendant  was  sworn.  The  mere  allega- 
tion that  the  defendant  made  and  subscribed 
the  following  false  oath,  reciting  it,  is  not 
sufficient.  State  v.  Divoll,  44  New  Hamp. 
140. 

89.  The  indictment  need  not  state  whether 
or  not  the  witness  was  compelled  to  attend 
by  subi^oena,  or  whether  he  testified  falsely 
in  answer  to  a  question  or  in  the  course  of 
his  own  narration  of  the  facts.  Com.  v. 
Knight,  12  Mass.  274. 

90.  An  indictment  for  perjury  is  sufficient 
which  charges  that  the  defendant  was  duly 
sworn,  without  stating  tiiat  the  oath  was 
administered  by  any  one.  State  v.  O'Hagan, 
38  Iowa,  504. 

91.  An  indictment  for  perjury  in  falsely 
swearing  to  an  affidavit,  must  charge  that 
the  affidavit  was  made  by  the  prisoner.  It 
ought  to  allege  either  that  he  did  corruptly 
say,  depose,  swear,  and  make  affidavit  in 
writing;  or  that  he  did  produce  and  ex- 
hibit an  affidavit  in  writing.  Copeland  v. 
State,  23  Miss.  257. 

92.  Form  of  oath  need  not  be  averred. 


The  indictment  need  not  specify  the  partic- 
ular mode  in  which  the  jirisoner  was  sworn. 
The  averment  that  the  defendant  was  duly 
sworn  is  sufficient.  Patrick  v.  Smoke,  3 
Strobh.  147;  State  v.  Norris,  9  New  Hamp. 
96  ;  Tuttle  v.  People,  36  N.  Y.  431.  It  is, 
therefore,  unnecessary  to  allege  that  the 
oath  upon  which  the  perjury  is  assigned, 
was  taken  upon  the  Gospels  or  Bible,  or 
administered  according  to  the  ceremonies  of 
any  particular  religion,  or  that  the  court 
had  jurisdiction  of  the  prosecutor's  suit. 
State  V.  Farrow,  10  Rich.  165. 

93.  An  indictment  for  perjuiy  is  good, 
although  it  charges  that  the  oath  was  ad- 
ministered to  the  prisoner  on  "the  Holy 
Scriptures,"  instead  of  the  Gospels,  the 
term  used  in  the  statute.  Tuttle  v.  People, 
supra. 

94.  In  New  York,  it  has  been  held  that 
an  indictment  for  peijury  at  a  general  elec- 
tion, need  not  specify  the  particular  mode 
in  which  the  prisoner  was  sworn,  or  the 
particular  oath  which  he  took,  or  show  that 
the  oath  required  by  the  statute  was  admin- 
istered to  the  defendant,  or  that  he  falsely 
swore  to  any  part  of  the  same ;  the  aver- 
ment that  he  was  duly  sworn  and  took  his 
coqjoral  oath  before  the  board,  being  tanta- 
mount to  the  allegation  that  the  proper 
oath  was  administered  to  him.  Burns  v. 
People,  59  Barb.  531 ;  5  Lans.  189. 

95.  But  if  the  form  of  the  oath,  or  man- 
ner of  taking  it,  be  alleged,  it  must  be  stated 
correctly;  great  strictness  being  required  in 
this  respect.  State  v.  Porter,  2  Hill,  S.  C. 
611.  If  it  be  charged  that  the  prisoner 
swore  upon  the  Holy  Evangelists,  and  the 
evidence  shows  that  he  swore  with  the 
uplifted  hand,  tiie  variance  will  be  fatal. 
And  the  same,  where  it  is  charged  that  he 
deposed  directly  and  positively  to  a  fact, 
and  the  proof  is  that  he  deposed  with  a 
qualification  or  reservation,  or  upon  his 
belief  as  informed  by  others.  AYilliams  v. 
State,  7  Humph.  47. 

96.  The  Avords  ''corporal  oath,"  and 
"  solemn  oath,"  are  synonymous,  and  an  oath 
taken  with  the  uplifted  hand,  may  be  de- 
scribed by  either  term.  Jackson  v.  State,  1 
Carter,    189.     An    indictment    for    perjury 


PERJUEY  AND   SUBOENATTON  OF  PEEJUEY. 


505 


Perjury. 


Indictment. 


which  charges  that  the  witness  took  his 
corporal  oath  to  speak  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  is  suffi- 
cient without  alleging  the  form  in  which 
such  bodily  assent  was  signified,  as  by  rais- 
ing the  hand,  or  otherwise.  State  v.  Norris, 
9  New  Hamp.  96. 

97.  Averment  of  substance  of  oath  suf- 
ficient. When  the  oath  is  sf>t  forth  to  be  in 
substance  and  to  the  effect  following, 
there  need  not  be  an  exact  recital.  People 
V.  Warner,  5  Wend.  271.  Where,  therefore 
the  defendant  was  charged  with  having 
sworn  falsely  in  an  affidavit  "in  substance 
and  effect  following,  that  is  to  say,"  «fec., 
that  there  were  60,000  cigars  on  his  prem- 
ises, and  the  affidavit  when  produced  showed 
that  he  had  sworn  to  having  65,000,  it  was 
held  that  the  variance  was  immaterial.  Har- 
ris V.  People,  6  N.  Y.  Supm.  K  S.  206. 

98.  In  New  York,  it  was  held  that  an 
indictment  charging  an  insolvent  with  tak- 
ing a  false  oath  on  presenting  his  petition 
for  a  discharge,  need  only  set  forth  the  sub- 
stance of  the  oath ;  that  it  was  sufficient  to 
allege  the  oath  to  be  "  in  substance,  and  to 
the  eifect  following,  to  wit,"  &c. ;  and  that 
where  the  indefinite  article  was  substituted 
for  the  definite  article,  the  variance  was  not 
material.    People  v.  Warner,  supra. 

99.  The  indictment  need  not  set  out  the 
entire  oath,  but  only  the  portion  of  it  which 
is  false.  State  v.  Neal,  43  Mo.  119.  In  New 
York,  it  was  held  that  an  averment  in  an 
indictment  for  swearing  in  a  vote  at  an 
election,  that  the  defendant  was  sworn  by 
and  before  the  board  of  inspectors,  they 
being  duly  authorized  to  administer  tlie 
oath,  was  sufficient,  and  that  the  whole  oath 
need  not  be  set  out,  but  only  that  part  of  it 
in  which  the  perjury  was  charged  to  have 
been  committed.  Campbell  v.  People,  8 
Wend.  636. 

100.  Averment  of  guilty  knowledge  and 
intent.  The  indictment  must  allege  that 
the  defendant  willfully  and  corruptly  swore 
that  a  certain  thing  was  true,  knowing  it  to 
be  false,  or  denied  it,  knowing  it  to  be  true. 
State  v.  Morse,  1  Iowa,  503;  State  v.  Pow- 
ell, 28  Texas,  626 ;  U.  S.  v.  Babcock,  4  Mc- 
Lean, 113;  State  v.  Perry,  42  Texas,  238. 


101.  The  averment  in  an  indictment  for 
perjury,  that  the  defendant  knew  the  falsity 
of  the  matter  testified  to  by  him,  is  only 
requisite  where  the  assignment  of  perjury  is 
upon  the  statement  by  the  accused  of  his 
belief  or  denial  of  his  belief  of  the  alleged 
false  matter.  State  v.  Raymond,  20  Iowa, 
582. 

102.  An  indictment  against  an  insolvent 
debtor  for  perjury,  in  swearing  to  a  schedule 
which  did  not  include  certain  debts  owing, 
was  held  bad  on  demurrer  for  not  alleging 
that  he  "  well  knew  and  remembered,"  the 
omitted  debts.     Cook's  Case,  1  Rob.  729. 

103.  In  California,  an  indictment  for  per- 
jury which  charged  that  the  defendant  "  did 
willfully,  corruptly,  and  falsely  swear,"  &c., 
without  using  the  word  "feloniously,"  was 
held  sufficient.  People  v.  Parsons,  6  Cal. 
487 ;  People  v.  Olivera,  7  lb.  403. 

104.  In  Vermont,  the  allegation  in  an  in- 
dictment for  perjury,  that  the  accused  swore 
"falsely,  willfully,  and  corruptly,"  was  held 
sufficient,  without  the  word  "knowingly." 
State  V.  Sleeper,  37  Vt.  122. 

105.  In  Iowa,  an  indictment  which  does 
not  charge,  in  the  language  of  the  statute, 
that  the  defendant  deposed,  affirmed,  or  de- 
clared some  matter  to  be  fact,  knowing  the 
same  to  be  false,  or  denied  some  matter  to  be 
fact,  knowing  the  same  to  be  true,  is  fatally 
defective ;  and  the  defect  is  not  cured  by  a 
statute  which  provides  that  "  no  indictment 
shall  be  quashed  if  an  indictable  offense  is 
clearly  charged  therein,  or  if  the  charge  be 
so  explicitly  set  forth  that  judgment  can  be 
rendered  thereon."  State  v.  Morse,  1  Iowa, 
503. 

106.  Averment  of  falsity  of  testimony. 
An  indictment  for  perjury  must  charge  the 
falsity  of  the  statement,  and  not  leave  it  to 
be  adduced  by  argument  and  intendment ; 
and  the  omission  of  such  averment  will  not 
be  cured  l)y  the  conclusion  that  the  defend- 
ant did  "  falsely,  wickedly,  willfully  and 
corruptly,  in  manner  and  form  aforesaid, 
commit  willful  and  corrupt  perjury."  Juar- 
aqui  V.  State,  28  Texas,  625. 

107.  Assignments  of  perjury  must  be 
made  by  special  averment  negativing  the 
oath.     A  general  allegation  that  the  defend- 


506 


PERJURY   AND   SUBORNATION   OF  PERJURY. 


Perjury. 


Indictment. 


ant  swore  falsely  is  not  sufficient.     Burns  v. 
People,  59  Barb.  531 ;  s.  c.  5  Lans.  189. 

108.  In  Maine,  an  indictment  for  perjury 
under  the  statute  (R.  S.  ch.  123,  §  4),  which 
alleges  that  the  accused  "committed  per- 
jury by  testifying  as  follows,"  giving  the 
language,  is  a  sufficient  averment  that  the 
words  sworn  to  were  not  true.  State  v. 
Corson,  59  ]\Iaine,  137. 

109.  Specifying  in  what  the  offense  con- 
sists. The  indictment  should  set  out  the 
substance  and  effect  of  the  testimony  which 
is  alleged  to  be  false.  State  v.  Graves, 
Busbee,  403. 

110.  Where  it  was  alleged  that  the  ac- 
cused had  sworn  that  he  had  not  voted  at 
the  election,  and  the  assignment  of  perjury 
was  that  he  had  voted  previously  in  the 
fourth  ward  of  the  city  of  New  York,  "  in 
the  house  of  T.  L.  W.  in  said  ward,"  without 
stating  that  he  voted  before  a  board  of 
officers  duly  constituted  and  authorized  ac- 
cording to  law,  or  that  a  lawful  election  had 
been  appointed  or  maintained  at  the  place 
named,  it  was  held  that  the  assignment  was 
too  general  and  uncertain,  and  that  the 
defect  was  not  cured  by  the  statute  of 
jeofails.  Burns  v.  People,  59  Barb.  531 ; 
s.  0.  5  Lans.  189. 

111.  An  indictment  for  perjury  in  giving 
false  testimony  before  a  grand  jury  alleged 
that  the  defendant,  being  duly  sworn,  "  did 
depose  and  give  evidence  to  the  grand  jury 
in  substance  and  to  the  effect  following" 
(stating  the  testimony),  "which  said  evi- 
dence was  willfully  false  and  corrupt,  for  in 
truth,"  &c.  (denying  the  facts  deposed  to), 
"  and  so  the  defendant  did,  in  manner  and 
form  aforesaid,  commit  willful  and  corrupt 
perjury.  Held  insufficient  at  common  law. 
Thomas'  Case,  3  Rob.  795. 

112.  An  indictment  against  a  bankrupt  for 
perjury,  must  state  in  what  the  perjury  con- 
sisted, and  it  is  not  sufficient  to  allege  that 
the  defendant  swore  falsely  in  respect  to  his 
schedule  in  taking  the  oath  of  bankruptcy. 
U.  S.  V.  Morgan,  1  Morris,  341. 

113.  But  in  an  indictment  for  perjury 
against  an  insolvent  debtor  for  omitting  to  set 
forth  projjerty  in  his  inventory,  it  is  sufficient 
to  allege  that,with  the  papers  presented  to  the 


officer,  was  one  purporting  to  be  a  full  and 
just  inventory  of  all  the  estate  of  the  in- 
solvent, without  setting  out  the  inventory  or 
stating  the  substance  of  it.  People  v. 
Phelps,  5  Wend.  9. 

114.  Where  the  defendant  is  charged  with 
having  taken  a  false  oath  to  procure  his 
release  from  custody  under  an  execution,  an 
assignment  alleging  that  when  he  took  the 
oath  he  had  property  enough  to  satisfy  the 
debt  for  which  he  was  arrested,  is  sufficient. 
De  Bernie  v.  State,  19  Ala.  23. 

115.  On  a  charge  of  peijury,  where  the 
question  is  whether  certain  goods  .were  sold 
in  part  payment  of  the  one  or  the  other  of 
two  debts,  the  averment  that  the  defendant 
falsely  swore  that  they  were  sold  in  paj't 
payment  of  the  first,  is  sufficient.  Com.  v. 
Johns,  6  Gray,  274. 

116.  It  was  objected  on  motion  in  arrest 
of  judgment,  that  the  portion  ©f  the  oath  on 
which  perjury  was  assigned,  to  wit,  that  the 
defendant  "  saw  the  said  Peter  Martin  enter 
upon  the  premises  of  the  said  Jason  Pang- 
born,"  was  not  negatived  by  the  averment 
that  he  "did  not  see  Peter  Marl  in  enter 
upon  the  premises  of  the  said  Joseph  Pang- 
bom,"  and  that  the  oath  he  ''heard  and  saw 
the  said  Peter  Martin  getting  and  carrying 
away,"  was  not  negatived  by  the  averment 
that  he  did  not  see  and  hear  the  said  Peter 
Martin  gather  and  carry  away.  Held  that 
the  objections  were  not  well  taken.  State 
V.  Raymond,  20  Iowa,  583. 

117.  An  indictment  which  charged  a  per- 
son with  lalsely  swearing,  in  July,  that  he 
had  witnessed  a  certain  transaction  in  Oc- 
tober of  the  same  year,  was  held  not  bad  for 
inconsistency.  State  v.  McKennan,  Harper, 
303. 

118.  Where  the  perjury  consists  in  swear- 
ing to  a  written  instrument,  the  tenor  of  the 
instrument,  or  of  the  part  of  it  alleged  to  be 
false,  should  be  set  out,  and  not  merely  the 
substance  of  it  be  given,  Coppack  v.  State, 
36  Ind.  513. 

119.  Where  the  perjury  is  assigned  on  a 
book  account,  it  is  not  necessary  to  specify 
the  particular  items  of  the  account  to  which 
the  testimony  related.  State  v.  Keene,  36 
Elaine,  33. 


PERJUHY  AND   SUBORNATION   OF  PERJURY. 


507 


Perjury. 


Indictment. 


120.  An  indictment  against  a  bankrupt 
for  pel  jury,  in  not  giving  a  true  and  full 
account  of  Ms  property,  need  not  set  out  the 
items  on  the  schedule.  State  v.  Chapman, 
3  McLean,  390. 

121.  Perjury  cannot  be  charged  on  an  affi- 
davit made  before  the  clerk  of  the  court  for 
an  attachment,  unless  tlie  affidavit  contains 
the  facts  required  by  the  statute,  and  such 
facts  are  alleged  to  be  false.  Hood  v.  State, 
44  Ala.  81. 

122.  An  indictment  for  peijury  is  good 
which  charges  the  making  of  a  false  affidavit 
relative  .to  an  application  for  naturalization 
to  be  made  subsequently,  and  that  the  affiant 
at  the  time  of  making  the  affidavit  was 
sworn  as  a  witness  in  support  of  the  appli- 
cation, without  alleging  that  the  application 
was  ever  made  or  the  affidavit  used.  State 
V.  Whittemore,  50  New  Hamp.  245. 

123.  A  person  was  charged  with  swearing 
to  an  affidavit,  that  a  certain  boat  was,  as  he 
believed,  attempting  to  pass  a  certain  place, 
whereas,  he  did  not  believe  that  the  boat 
was  attempting  to  pass  said  place.  Held 
that  the  indictment  was  not  bad  in  not  stat- 
ing that  the  boat  was  not  attempting  to  pass 
the  place.     State  v.  Cruikshank,  6  Blackf.  63. 

124.  One  assignment  of  perjury  well  made 
will  sustain  an  indictment  for  that  offense. 
Com.  V.  Johns,  6  Gray,  274. 

125.  Must  charge  materiality  of  testi- 
mony. An  indictment  for  perjury  must  show 
that  the  false  testimony  was  material.  Com. 
V.  Knight,  13  Mass.  274 ;  Hembree  v.  State, 
53  Ga.  348;  State  v.  Keel,  54  Mo.  183.  And 
where  the  perjury  is  charged  to  have  been 
committed  by  a  party  to  a  suit,  the  indict- 
ment must  show  by  proper  averments  that 
the  defendant  was  sworn  under  circumstan- 
ces which  authorized  his  testifying  as  a  wit- 
ness in  the  cause.  State  v.  Hamilton,  7  Mo. 
300. 

126.  The  materiality  of  the  alleged  false 
testimony  must  appear  on  the  face  of  the  in- 
dictment. Stating  that  ''  it  became  and  was 
material  to  ascertain  the  truth  of  the  mat- 
ters hereinafter  alleged  to  have  been  sworn 
to,"  setting  out  what  the  defendant  testified, 
is  sufficient.  People  v.  Collier,  1  Manning, 
137;  Com.  v.  Pollard,  12  Mete.  325. 


127.  It  is  not  suthcient  in  an  indictment 
for  perjury  to  charge  generally  that  the  false 
oath  was  material  upon  the  trial  of  the 
issue.  Its  materiality  must  appear  from  the 
facts  set  forth.     State  v.  Holden,  48  Mo.  93. 

128.  An  indictment  for  perjury  which 
dees  not  show  either  by  direct  averment  or 
facts  set  out,  that  the  statement  upon  which 
the  perjury  is  assigned  was  material  to  the 
matter  before  the  court,  is  ftitally  defective. 
State  V.  Beard,  1  Dutch.  384. 

129.  An  indictment  alleged  that  the  de- 
fendant, falsely,  &c.,  swore  to  certain  facts 
before  the  grand  jury,  but  did  not  state  how 
or  in  what  way  the  facts  thus  sworn  to  had 
a  bearing  upon  the  otfense  charged  in  the  in- 
dictment, nor  that  they  were  material.  Held 
insufficient.     State  v.  Dodd,  3  Murphy,  32G. 

130.  Where  an  indictment  for  perjury  al- 
leged to  have  been  committed  before  a  jus- 
tice of  the  peace,  \vt  the  county  of  W.,  upon 
the  trial  of  a  complaint  for  an  assault  and 
battei7  committed  upon  him  by  A.,  B.  and 
C,  at  G.,  in  the  county  of  W.,  charged  that 
the  defendant  falsely  and  corruptly  swore 
that  A.  and  C.  assaulted  him  at  or  near  the 
house  of  C,  without  alleging  that  the  testi- 
mony was  material,  or  that  the  assault  by  A. 
and  C.  was  the  same  assault  as  that  charged, 
or  that  the  house  of  C.  was  in  G.,  or  in  the 
county  of  W.,  or  within  the  State,  it  was 
held  fatally  defective.  Com.  v.  Byron,  14 
Gray,  31. 

131.  An  information  for  perjury  in  falsely 
swearing  to  an  affidavit,  must  show  that  the 
affidavit  was  made  to  be  used,  or  was  actu- 
ally used  in  a  judicial  proceeding.  People 
V.  Fox,  25  Mich.  492. 

132.  When  charged  to  have  been  com- 
mitted in  swearing  falsely  to  an  affidavit  for 
a  continuance,  the  indictment  should  contain 
an  averment  that  a  cause  was  pending  in 
court ;  that  an  application  for  its  continu- 
ance had  been  made,  and  that  the  affidavit 
was  material;  and  then  show  what  facts 
sworn  to  were  false.  Morrell  v.  People,  32 
111.  429 ;  Kerr  v.  People,  43  111.  307. 

133.  The  prisoner  was  convicted  of  per- 
jui-y,  in  swearing  falsely  in  an  affidavit  made 
for  the  purpose  of  obtaining  an  audit  of  a 
claim  against  the  city  of  Buffalo.     The  city 


508 


PERJURY   AND   SUBORNATION   OF   PERJURY. 


Perjury, 


Indictment. 


charter  prohibited  the  common  council  from 
auditing  any  such  claim,  unless  it  was  made 
out  in  detail  with  certain  prescribed  speci- 
fications, and  unless  accompanied  by  an  affi- 
davit that  the  claim,  and  the  items  and 
specifications,  were  in  all  respects  just  and  cor- 
rect. The  indictment  was  held  insufficient, 
because  it  did  not  aver  that  the  affidavit 
was  authorized  by  the  charter,  or  that  it  was 
made  for  the  purpose  required  by  the  char- 
ter, or  that  the  claim  to  which  it  was  ap- 
pended was  presented  to  the  common  coun- 
cil for  audit.  Ortuer  v.  People,  6  N.  Y. 
Supm.  N.  S.  548. 

134.  The  indictment  alleged  that  the 
prisoner  caused  his  claim  to  be  presented  to 
T>.,  the  city  engineer,  and  that  he  made  his 
-affidavit  before  P.,  who  was  a  commissioner 
of  deeds  and  a  clerk  in  the  office  of  D. 
IBut  it  was  not  averred  that  it  was  any  part 
of  D.'s  duties  to  receive  the  bill,  or  that  he 
in  fact  received  it  for  any  purpose  connected 
Tvith  an  audit.  The  oath  was  not  in  fact  re- 
quired, and  it  did  not  appear  that  P.  was 
authorized  to  take  the  affidavit.  Held  that 
the  prisoner  must  be  discharged.     lb. 

135.  An  information  for  perjury  in  swear- 
ing to  a  bill  in  equity,  alleging  that  "  it  then 
and  there  became  a  material  question  in  said 
bill  of  complaint,  and  in  said  judicial  pro- 
ceeding, whether  the  said  T.  had  ^y  claim 
or  title  to  said  stream  or  water- course,"  &c., 
is  defective  in  failing  to  show  the  materiality 
of  the  matter  sworn  to ;  the  bill  not  being- 
one  whose  allegations  could  be  treated  as 
evidence.  People  v.  Gaige,  26  Mich.  30 ;  s. 
c.  1  Green's  Crim.  Reps.  524. 

136.  An  indictment  for  perjury  alleged 
that  "  it  became  and  was  material  to  show 
whether  the  said  S.  was  at  the  house  of  0. 
on  the  morning  of  the  2d  of  November, 
1859,  and  whether  he  then  had  a  conversa- 
tion with  said  C.  in  the  presence  of  certain 
other  jiersons,"  and  then  alleged  that  the 
accused  falsely  swore  that  at  said  time  he 
stopped  at  said  C.'s  house  and  had  a  con- 
versation with  C.  in  the  presence  of  one  M. 
Held  that  it  was  sufficiently  alleged  that  the 
t3vidence  was  material.  State  v.  Sleeper,  37 
Vt.  122 ;  State  v.  Magoon,  lb. 

137.  An  indictment  for  perjury  committed 


in  an  ex  parte  proceeding  sufficiently  charges 
the  materiality  of  the  matter  sworn  to  by 
alleging  that  "it  then  and  there  became 
material  to  him,"  the  defendant,  to  take  the 
oath,  especially  on  a  motion  in  arrest  of 
judgment.     Stofer  v.  State,  3  West  Va.  689. 

138.  Where  an  indictment  for  perjury  al- 
leged that  the  evidence  was  material,  and 
there  was  nothing  in  the  record  of  the  case 
in  which  the  alleged  false  evidence  was  given 
contradicting  it,  it  was  held  that  the  indict- 
ment could  not  l)e  quashed  for  insufficiency. 
Com.  V.  Farley,  Thach.  Crim.  Cas.  654. 

139.  A.,  in  an  action  by  a  bank  on  a 
promissory  note,  in  testifying  in  behalf  of 
the  indorser,  swore  that  B.,  who  at  that 
time  was  president  of  the  bank,  took  usury 
in  discounting  the  note.  Held  that  an  in- 
dictment charging  A.  with  perjury  in  so 
swearing  need  not  allege  that  B.  was  acting 
in  the  transaction  as  an  officer  of  the  bank, 
or  how  he  was  connected  with  the  trans- 
action, but  that  it  was  sufficient  to  aver  that 
it  became  a  material  question  whether  the 
said  B.  discounted  the  said  note,  and 
whether  he  took  usury  in  discounting  it, 
setting  forth  the  testimony  of  the  accused 
and,  the  facts  inconsistent  with  such  testi- 
mony, with  the  usual  allegations  of  falsity 
and  corrupt  intent.  People  v.  Burroughs,  1 
Parker,   211. 

140.  Where  the  materiality  of  the  matter 
which  is  alleged  to  have  been  falsely  sworn 
to  appears  from  the  statement  of  the  matter, 
an  express  allegation  of  its  materiality  is 
unnecessary.  State  v.  Johnson,  1  Blackf. 
49 ;  Com.  v.  Pollard,  12  Mete.  225 ;  Camp- 
bell V.  People,  8  Wend.  638 ;  State  v.  Day- 
ton, 3  Zabr.  49 ;  Hock  v.  People,  3  Mich. 
552 ;  Hendricks  v.  State,  26  Ind.  493 ;  Gal- 
loway V.  State,  29  lb.  442 ;  State  v.  Marshall, 
47  Mo.  378.  It  was  so  held  where  the  false 
swearing  was  by  the  husband  in  his  answer 
to  a  bill  in  chancery  brought  to  foreclose  a 
mortgage  executed  solely  by  the  wife,  which 
bill  alleged  that  her  husband,  who  was  a 
party  to  the  suit,  gave  his  consent  to  the 
execution  of  the  mortgage  by  his  wife,  and 
the  borrowing  by  her  of  the  money  for 
which  the  mortgage  was  given.  State  v. 
Chamberlin,  30  Vt.  559. 


PERJURY   AND   SUBORNATION   OF  PERJURY. 


50f^ 


Perjury. 


Indictment. 


Evidence. 


141.  Perjury  niny  be  assigned  upon  a  false 
oath  to  a  matter  wliicli,  without  additional 
proof,  is  insufficient  to  effect  the  purpose  for 
which  the  oath  was  taken.  State  v.  Dayton, 
3  Zabr.  49. 

142.  Conclusion.  "Where  after  the  alleged 
perjury  was  committed  another  statute  was 
passed  changing  the  punishment,  it  was  held 
that  an  indictment  concluding  "  against  the 
form  of  the  statute  "  was  good.  Strong  v. 
State,  1  Blackf.  193. 

143.  Form.  The  usual  form  of  an  indict- 
ment for  perjury  when  more  than  one  ques- 
tion is  relied  on  as  material,  is  to  aver  that 
certain  questions  became  and  were  material, 
to  wit,  whetlier,  &c.,  and  whether,  &c.,  and 
also  whether,  «S:c.  But  this  form  is  not 
essential.  The  indictment  will  be  sufficient 
if  it  clearly  avers  that  several  matters  were 
material  on  the  trial  in  which  the  defendant 
testified,  and  that  he  committed  perjury 
concerning  them  or  any  of  them.  Com.  v. 
Johns,  6  Gray,  274.  Form  of  an  indictment 
for  perjury  in  falsely  swearing  that  usury 
was  taken  on  a  promissory  note.  People  v. 
Burroughs,  1  Parker,  211 


V 


(c)  Evidence. 

144.  Authority  to  administer  oath.  To 
procure  a  conviction  for  perjury,  it  must  be 
proved  that  the  person  before  whom  the 
oath  was  taken  was  authorized  by  law  to 
administer  it.  Proof  that  the  person  habit- 
ually acted  in  the  capacity  of  a  particular 
officer,  until  rebutted,  is  sufficient  without 
producing  his  commission.  Morrell  v.  Peo- 
ple, 32  lU.  429. 

145.  On  the  trial  of  an  indictment  for 
perjury  alleged  to  have  been  committed 
before  a  company  court  martial,  the  com- 
mission of  the  captain  need  not  be  produced. 
Parol  proof  of  his  acting  as  such  is  sufficient. 
State  v.  Gregory,  2  Murjjhy,  69. 

146.  On  a  trial  for  perjury,  it  is  sufficient 
to  prove  that  the  oath  was  administered  by 
an  officer  de  facto,  Keator  v.  People,  32 
Mich.  484. 

147.  To  justify  a  verdict  of  guilty  on  the 
trial  of  an  indictment  for  perjury  under  sec- 
tion 13  of  the  act  of  Congress  approved 
March  2d,  1825,  the  jury  must  be  satisfied 


by  the  evidence  that  the  defendant  was 
sworn  in  a  proceeding  in  which  an  oath  was 
required  by  some  law  of  the  United  States, 
and  'that  he  knowingly  and  willingly  swore 
to  that  which  was  false;  that  the  oath  was- 
administered  to  him  by  the  person  named 
in  the  indictment,  and  that  such  person  had 
authority  to  administer  the  oath ;  and  that 
the  defendant  swore  with  a  corrupt  intent  to 
falsify.  Any  discrepancy  between  what  the 
defendant  swore  to  and  what  is  set  out  in 
the  indictment  as  having  been  sworn  to  by 
him  will  be  fatal  to  a  conviction.  U.  S.  v. 
Coons,  1  Bond,  1. 

148.  Proof  that  the  defendant  was 
sworn.  On  the  trial  of  an  indictment  for 
perjury,  the  certificate  of  the  magistrate 
before  whom  the  alleged  false  oath  waa 
taken  is  prima  facie  evidence  that  the  pris- 
oner took  the  oath.  Com.  v.  Warden,  11 
Mete.  406. 

149.  The  following  instruction  on  a  trial 
for  perjury  was  held  erroneous:  "It  being 
the  uniform  rule  and  custom  in  the  courts 
to  administer  oaths  to  witnesses  before  they 
testify,  you  will  be  justified  in  finding  that 
the  defendant  was  sworn  on  less  evidence 
than  would  be  necessary  to  establish  a  fact 
of  a  different  character  not  occurring  accord- 
ing to  any  fixed  rule  or  custom."  Hitesman 
V.  State,  48  Ind.  473. 

150.  Ciiaracter  of  oath.  On  a  trial  for 
perjury,  evidence  that  the  accused  was  sworn 
to  tell  "the  whole  truth,  and  nothing  but 
the  truth,"  supports  the  allegation  that  he 
"  took  his  corporeal  oath  to  tell  the  truth, 
the  whole  truth,  and  nothing  but  the  truth.'' 
State  V.  Gates,  17  New  Hamp.  375. 

151.  Where  an  indictment  for  perjury  al- 
leges that  the  defendant  was  sworn  en  the 
Holy  Gospels,  a  failure  to  prove  that  he  was 
so  sworn  will  be  a  fatal  variance.  State  v. 
Davis,  69  N.  C.  383. 

152.  An  indictment  for  perjury  in  swear- 
ing falsely  as  to  ability  to  become  bail  al- 
leged that  the  perjury  was  committed  upon 
an  examination  had  after  the  defendant  had 
been  previously  sworn  to  make  true  answers 
to  such  questions  as  should  be  put  to  him, 
touching  liis  qualifications  and  competency 
to  be  and  become  bail.     It  was  proved  that, 


510 


PERJURY   AND   SUBORNATION   OF  PERJURY. 


Perjury. 


Evidence. 


after  the  answers  of  the  defendant  to  certain 
interrogatories  had  been  taken  down  in 
writing,  an  oath  was  administered  to  him 
that  the  answers  to  the  foregoing  interroga- 
tories, by  him  subscribed,  are  each  and  every 
of  them  true.  Held  that  the  variance  was 
material,  and  that  the  proof  did  not  support 
the  indictment.  Smith  v.  PeojDle,  1  Parker, 
317.       ■ 

153.  Time  and  place.  An  indictment  for 
perjury  alleged  that  the  defendant  committed 
the  offense  at  the  hearing  of  a  petition  for 
review,  "  on  the  third  day  of  April,  before 
three  of  the  justices  of  the  Supreme  Judicial 
Court."  The  record  of  the  hearing  set  forth 
that  it  was  "on  the  tenth  day  of  April  be- 
fore the  Supreme  Judicial  Court."  Held  that 
the  record  was  admissible  in  evidence  not- 
withstaading  the  variance.  Com.  v.  Farley, 
Thach.  Crim.  Cas.  654. 

154.  On  the  trial  of  an  indictment  for 
perjury  in  falsely  swearing  to  a  petition  be- 
fore the  court,  the  clerk  of  the  court  testified 
that  the  petition,  which  bore  a  certificate  of 
the  clerk  that  it  was  sworn  to  before  him, 
was  so  sworn,  but  whether  in  his  office  or  in 
court  he  could  not  remember;  that  there  was 
no  order  of  the  court  to  administer  the  oath, 
but  that  was  the  practice.  Held  that  the 
jury  were  justified  in  finding  that  the  de- 
fendant was  sworn  in  a  proper  manner  be- 
fore the  court.  Com.  v.  Kimball,  108  Mass. 
473. 

155.  Nature  of  proceedings.  An  indict- 
ment charged  that  the  peijury  was  com- 
mitted on  the  offer  of  the  accused  to  become 
bail  for  one  Thompson,  committed  on  the 
complaint  of  McDonald,  in  default  of  bail 
for  §500.  The  evidence  was  that  the  perjm-y 
was  committed  cm  the  examination  of  the 
defendant  as  bail  for  Thompson,  committed 
on  the  complaint  of  Sayre  and  others,  in 
default  of  $3,000  bail.  Held  that  the  vari- 
ance was  fatal.  Smith  v.  People,  1  Parker, 
317. 

156.  An  indictment  charging  perjuiy  com- 
mitted on  a  trial  for  the  larceny  of  property 
of  A.,  or  his  son  B.,  is  not  sustained  by 
proof  of  a  trial  for  the  larceny  of  property  of 
A.'s  son  B.  Brown  v.  State,  47  Ala.  47 ;  s.  c. 
1  Green's  Crim.  Reps.  531. 


157.  An  indictment  for  perjury  alleging 
that  a  warrant  was  tried,  in  which  A.  de- 
manded of  B.  $30  for  corn,  is  supported  by 
proof  of  a  warrant  between  the  same  parties 
for  a  debt  due  by  account,  without  specify- 
ing the  particulars  of  the  account.  State  v. 
Alexander,  2  Dcv.  470. 

158.  An  indictment  for  perjury  charged 
that  the  defendant  had  conveyed  land  to  B. 
which  had  been  previously  mortgaged  to  C. ; 
that  C.  had  recovered  a  judgment  under  the 
mortgage  for  the  possession  of  the  land ;  that 
a  petition  for  a  review  had  been  filed  by  B., 
on  the  ground  of  newly  discovered  evidence 
to  show  a  technical  payment  of  the  debt 
secured  by  the  mortgage ;  and  that  the  de- 
fendant swore  falsely  at  the  hearing  of  the 
petition,  that  he  told  B.  of  the  existence  of 
the  mortgage  at  the  time  of  the  conveyance. 
The  indictment  alleged  that  the  judgment 
recovered  by  C.  was  "  for  possession  of  land, 
mill  site,  and  mills  of  B.,"  and  that  the  pe- 
tition was  "  for  a  review  of  a  certain  action 
and  judgment."  The  record  of  the  proceed- 
ings at  the  hearing  of  the  petition,  ofi'ered  in 
evidence  at  the  trial  of  the  indictment,  set 
forth,  that  the  petition  was  a  review  of  a 
judgment  for  the  possession  of  "  the  peti- 
tioner's mill  site  and  mills,"  and  that  the 
petition  was  "  a  review  of  a  certain  action 
and  supersedeas,  and  stay  of  execution." 
Held  that,  as  the  record  was  not  recited  in 
the  indictment,  the  variance  was  not  cause 
for  the  rejection  of  the  testimony.  Com.  v. 
Farley,  Thach.  Crim.  Cas.  654. 

159.  An  indictment  charging  that  the 
prisoner  was  sworn  as  a  witness  between  a 
bank  and  A.,  is  supported  by  proof  that  the 
prisoner  was  sworn  in  a  suit  brought  by  the 
bank  on  a  promissory  note  against  A.  as 
indorser,  and  B.  and  the  prisoner  as  joint 
makers,  the  evidence  of  the  prisoner  in  such 
case  being  only  available  in  behalf  of  the 
indorser.  People  v.  Burroughs,  1  Parker, 
211. 

160.  A  variance  between  an  indictment 
for  i)erjury  alleged  to  have  been  committed 
on  a  trial  before  a  referee,  and  the  evidence 
in  regard  to  the  person  before  whom  the 
referee  was  sworn,  is  immaterial.  People  v. 
McGinnis,  1  Parker,  387. 


PERJURY  AND  SUBORNATION  OF  PERJURY. 


511 


Perjury. 


Evidence. 


161.  Matter  sworn  to.  On  a  trial  for 
perjury  charged  to  have  been  committed  iu 
testifying  before  an  examining  magistrate, 
the  prosecution  may  prove  what  the  defend- 
ant swore  to  by  parol  evidence.  People  v. 
Curtis,  50  Cal.  95. 

162.  An  indictment  for  perjury,  committed 
in  swearing  to  a  deposition,  concluded  thus : 
"As  by  his  said  answers  to  said  inter- 
rogatories, written  in  said  deposition  re- 
maining, will,  among  other  things,  appear." 
Held  that  upon  the  rejection  of  the  de- 
position, parol  evidence  might  be  given  to 
prove  the  testimony  of  the  deponent.  Com. 
V.  Stone,  Thach.  Crim.  Cas.  G04. 

163.  An  indictment  f©r  perjury  which  al- 
leges that  the  defendant  swore  falsely  in 
testifying  that  M.  did  not  assault  him  on 
the  tenth  of  September,  is  not  sustained  by 
proof  that  the  defendant  was  assaulted  by 
M.  on  the  ninth  of  September.  Com.  v. 
Monahan,  9  Gray,  119. 

164.  An  indictment  alleged  that  the 
defendant  swore  that  A.  bought  a  gun  of  B. 
His  testimony  as  proved,  was,  that  B.  in 
conversation  with  A.  asked  him,  if  he  had 
returned  his  gun,  to  which  A.  replied  that 
he  had  forgot  it,  but  that  he  would  keep  the 
gun,  and  allow  $15  for  it  on  what  B.  owed 
him,  and  that  B.  responded  "  enough  said." 
Held  that  the  proof  did  not  support  the 
charge,  B.'s  answer  not  necessarily  import- 
ing assent  to  A.'s  proposition,  but  being 
susceptible  of  a  different  interpretation. 
State  V.  Graves,  Busbee,  402. 

165.  An  indictment  for  perjury  alleged 
thai  the  defendant  falsely  swore  that  he  had 
land  and  two  houses  in  East  Cambridge, 
Massachusetts.  On  the  trial,  it  was  proved 
that  he  made  oath  to  a  written  statement 
to  the  eflfcct  that  he  had  land  and  two  houses 
in  East  Cambridge,  without  any  affirmation 
or  assertion  that  they  were  in  Massachusetts. 
Held  that  the  variance  was  fatal.  Com.  v. 
Hughes,  5  Allen,  499. 

166.  An  indictment  for  perjury  alleged  to 
have  been  committed  in  swearing  to  a  repli- 
cation to  a  plea  of  usuiy,  that  the  sum  of 
$20  above  the  legal  interest  was  not  re- 
ceived for  tlie  loan  of  $400.  It  was  proved 
that   the   defendant   gave  to   one    S.,  who 


borrowed  the  money  of  him,  the  sum  of 
$380,  and  received  therefor  of  him  a  note 
for  $400.  Held  that  the  variance  was  fatal. 
State  V.  Tappan,  1  Foster,  56. 

167.  Testimony  required  to  convict. 
To  authorize  a  conviction  for  perjury,  the 
statements  of  the  defendant  must  be  dis- 
proved by  two  witnesses,  or  by  one  witness 
and  corroborating  circumstances.  U.  S.  v. 
Coons,  1  Bond,  1 ;  State  v.  Raymond,  20 
Iowa,  582;  Com.  v.  Farley,  Thach.  Crim. 
Cas.  654;  State  v.  Hayward,  1  Nott  & 
McCord,  546. 

168.  The  law  does  not  require  two  wit- 
nesses to  establish  the  giving  of  the  testi- 
mony upon  which  the  perjury  is  assigned ; 
but  only  to  prove  its  falsity.  State  v.  "Wood, 
17  Iowa,  18;  Com.  v.  Pollard,  12  Mete.  225. 

169.  On  a  trial  for  perjury,  the  corrobora- 
tive proof,  in  addition  to  the  testimony  of 
one  witness,  need  not  be  equivalent  to  the 
testimony  of  another  witness ;  but  only  such 
as  gives  a  clear  preponderance  to  the  evi- 
dence in  favor  of  the  prosecution.  Crusen 
V.  State,  10  Ohio,  N.  S.  258  ;  State  v.  Heed, 
57  Mo.  252;  contra^  Galloway  v.  State,  29 
Ind.  442.  The  testimony  of  a  single  witness, 
and  the  declarations  of  the  prisoner,  are  suf- 
ficient to  sustain  a  conviction.  State  v. 
Molier,  1  Dev.  263. 

170.  Written  evidence.  Where  the 
owner  of  goods  was  charged  in  the  indict- 
ment with  taking  a  false  oath  at  the  custom 
house,  it  was  held  not  necessary  to  a  con- 
viction that  the  prosecution  should  produce 
a  living  witness,  if  the  jury  believed  the 
written  testimony  sufficient  to  establish  the 
charge.     U.  S.  v.  Wood,  14  Peters,  430. 

171.  When  a  person,  by  a  subsequent  de- 
position, contradicts  a  former  one  made  by 
him,  and  admits  that  the  former  one  was 
intentionally  false  at  the  time  it  was  made, 
or  in  such  subsequent  deposition  alleges  such 
facts  and  circumstances  as  to  render  the 
corrupt  motive  apparent,  he  may  be  con- 
victed of  perjury,  upon  an  indictment 
charging  the  first  deposition  to  be  false, 
without  any  other  proof  than  that  of  the 
two  depositions.  People  v.  Burden,  9  Barb. 
467,  Selden,  J.,  dissenting. 

172.  On   the  trial  of  an  indictment  for 


512 


PEEJURY  AXD   SU130RNATI0N   OF   PERJURY. 


Perjury. 


Evidence. 


perjury,  the  falsity  of  the  matter  sworn  to 
by  the  defendant  may  be  proved  by  the 
books  and  papei's  kept  by  him  and  under 
his  control.     U.  S.  v.  Mayer,  Deady,  127. 

173.  On  the  trial  of  an  indictment  for 
perjury,  charged  to  have  been  committed  in 
testifying  in  a  cause  before  a  justice  of  the 
peace,  in  relation  to  a  written  contract,  the 
record  or  papers  of  the  suit,  and  the  contract, 
must  be  produced,  or  their  absence  account- 
ed for.  The  first  is  necessary  to  show  the 
identity  of  the  proceedings  with  those  de- 
scribed in  the  indictment;  and  the  second, 
to  ascertain  the  legal  effect" of  the  contract, 
and  what  evidence  was  material.  McMurry 
V.  State,  6  Ala.  324. 

174.  The  record  of  the  court  at  which 
perjury  is  charged  to  have  been  committed, 
is  not  inadmissible  in  consequence  of  the 
day  of  holding  the  court  being  misrecited 
in  the  indictment.  State  v.  Clark,  2  Tyler, 
282. 

175.  Party  to  suit  may  be  a  witness.  A 
party  to  a  suit  may  be  a  witness  to  prove 
perjury  therein,  where  the  conviction  of  the 
prisoner  would  not  entitle  the  witness  to  a 
new  trial,  or  to  damages  as  an  injured  party. 
State  V.  Bishop,  1  Chip.  124. 

176.  Wife  as  witness.  Upon  a  trial  of 
the  husband  for  perjury,  in  swearing  in  an 
action  for  divorce  (his  wife  having  borne  a 
child),  that  he  had  no  sexual  intercourse 
with  her  during  marriage,  she  is  a  competent 
witness  (a  divorce  having  been  obtained), 
to  prove  that  she  had  no  sexual  intercourse 
with  any  other  person.  Chamberlain  v. 
People,  23  N.  Y.  85. 

177.  Presumptive  evidence.  Where,  on 
the  trial  of  an  indictment  for  perjury,  in 
falsely  swearing  that  the  defendant  owned  a 
house,  the  proof  went  to  show  that  the  house 
belonged  to  the  defendant's  wife,  it  was  held 
that  in  the  absence  of  any  proof  of  title  in 
the  defendant,  the  fact  that  the  records 
showed  no  conveyance  from  the  wife,  was 
presumptive  evidence  of  title  still  in  her. 
Com.  V.  Hatfield,  107  Mass.  237. 

178.  On  the  trial  of  A.  for  perjury,  in 
swearing  falsely  to  an  alibi  on  the  trial  of  B. 
for  robbery,  evidence  of  the  conduct  and 
appearance  of  B.  just  previous  to  and  at  the 


time  of  his  arrest,  not  being  a  part  of  the 
res  gestcB,  is  inadmis3iV)le ;  but  otherwise,  as 
to  proof  that  B.  was  guilty,  as  it  would  tend 
to  show  that  he  was  not  at  the  place  sworn 
to  by  A.     Galloway  v.  State,  29  Ind.  442. 

179.  Materiality  of  false  testimony.  To 
convict  of  perjury,  the  materiality  of  the 
matter  sworn  to  must  be  established  by  evi- 
dence, and  cannot  be  left  to  presumption  or 
inference.  State  v.  Aikens,  32  Iowa,  403. 
In  State  v.  Lewis,  10  Kansas,  157,  it  was 
held  that  the  question  whether  the  alleged 
false  testimony  was  material,  was  one  of 'law 
for  the  court. 

180.  Guilty  knowledge  and  intent.  An 
instruction  which  authorizes  the  jury,  on 
a  trial  for  perjury,  to  find  the  defendant 
guilty  without  proof  that  the  false  oath  was 
taken  willfully  and  corruptly,  is  erroneous. 
Green  v.  State,  41  Ala.  419. 

181.  On  a  trial  for  perjury  it  is  competent 
to  show  that  the  motives  which  actuated  the 
prisoner  in  committing  the  offense  were  cor- 
rupt; as  that  he  swore  to  a  complaint  against 
the  prosecutor,  ostensibly  to  procure  sureties 
of  the  peace,  but  in  fact  to  coerce  the  settle- 
ment of  a  civil  action.  State  v.  Hascall,  6 
New  Hamp.  352. 

182.  On  a  trial  for  perjury,  alleged  to  have 
been  committed  by  the  defendant  in  testify- 
ing before  a  fire  marshal  as  to  the  origin  of 
a  fire,  proof  that  the  defendant  falsely  aug- 
mented the  value  of  his  property  which  was 
consumed  by  the  fire,  is  material  on  the 
question  of  motive.  Harris  v.  People,  6 
N.  Y.  Supm.  N.  S.  206. 

183.  On  a  trial  for  perjury  committed  by 
the  defendant  in  falsely  swearing  in  a  civil 
action  that  "  he  did  not  send  his  son  to 
school  last  year,  and  did  not  know  that  his 
son  went  to  school,"  the  fact  that  he  knew 
that  his  son  went  to  school,  if  material  to 
the  issue  in  the  civil  suit,  would  be  relevant 
evidence.     Floyd  v.  State,  30  Ala.  511. 

184.  Although  the  jury  cannot  consider 
any  other  perjury  than  that  assigned,  for  the 
purpose  of  determining  the  defendant's  guilt 
upon  such  other  perjury,  yet  if  such  other 
perjury  was  brought  out  in  the  development 
of  the  whole  case,  and  related  to  the  oath 
and  subject-matter   of  the  perjury  charged 


PERJURY  AND   SUBORNATION  OF  PERJURY. 


513 


Perjury. 


Evidence. 


Verdict.        Subornation  of  Perjury.         Requisites. 


SuW: 


the  Jury  may  consider  it  in  considering  the 
question  of  corrupt  intent  in  swearing  to  the 
false  matter  upon  which  the  perjuiy  was  as- 
signed.    State  V.  Raymond,  20  Iowa,  582. 

185.  On  a  trial  for  j^erjury,  charged  to 
have  been  committed  at  the  hearing  of  a 
complaint  for  maliciously  setting  fire  to  a 
ship,  the  prosecution,  in  order  to  show  a 
corrupt  motive,  proved  that  a  reward  was 
offered  for  the  detection  of  the  incendiary, 
which  was  known  to  the  defendant.  Held 
that  evidence  was  admissible  in  behalf  of 
the  defendant  to  show  that  he  came  from 
another  State  to  testify  in  the  case,  reluct- 
antly, and  that  no  inducements  were  offered 
to  him  to  do  so.     Com.  v.  Brady,  7  Gray,  320. 

186.  Declarations  of  defendant.  It  is 
not  proper  to  instruct  the  jury  on  a  tiial  for 
perjury,  that  the  law  presumes  the  declara- 
tions of  a  party  against  himself  to  be  true, 
when  the  object  of  such  an  instruction  is  to 
make  the  declarations  evidence  of  the  falsity 
of  the  oath.  The  weight  of  such  declara- 
tions is  to  be  determined  by  the  jury;  but 
of  themselves  they  are  not  sufficient  to  con- 
vict.    State  V.  Williams,  30  Mo.  364. 

187.  On  a  trial  for  perjury  in  falsely 
swearing  that  F.,  one  of  the  assailants  in  an 
affray,  struck  the  defendant,  the  defendant, 
in  order  to  disprove  a  corrupt  motive,  may 
show  that  immediately  on  his  recovery  from 
the  unconsciousness  occasioned  by  the  blow, 
he  had  given  the  same  account  of  the  trans- 
action he  did  in  his  testimony.  State  v. 
Curtis,  12  Ired.  270. 

188.  On  the  trial  of  an  indictment  for 
perjury  in  swearing  falsely  to  a  deposition, 
the  deponent  having  afterwards  testified  on 
the  stand  that  the  facts  stated  therein  were 
false,  it  was  held  that  the  prisoner  was  not 
estopped  from  showing  in  his  defense  the 
truth  of  his  deposition.  State  v.  J.  B.  1 
Tyler,  269. 

189.  Where  an  indictment  for  perjury  al- 
leged that  the  defendant  was  sworn  as  a 
witness  in  his  own  belialf,  and  while  thus 
testifying  committed  the  perjury  charged, 
it  was  held  that  an  affidavit  made  by  the 
defendant  was  not  admissible  in  evidence, 
except  by  consent  of  parties.  Copeland  v. 
State,  23  Miss.  257. 

33 


90.  The  good  character  of  the  defend- 
ant may  l)e  given  in  evidence ;  but  it  is  en- 
titled to  but  little  weight  on  the  trial  of  an 
indictment  for  perjury.  Schaller  v.  State, 
14  Mo.  502. 

191.  Offer  of  prosecutor  to  settle.  On  a 
trial  for  perjury,  evidence  that  the  prosecutor 
had  offered  to  settle,  and  not  prosecute  the 
defendant,  if  the  latter  would  pay  him  a 
certain  sum,  is  not  admissible.  State  v. 
Gates,  17  New  Hamp.  873. 

192.  Burden  of  explanation  on  defend- 
ant. When,  on  a  trial  for  jierjury,  the 
prosecution  shows  that  the  prisoner  swore 
falsely,  a  prima  facie  case  is  made  out,  and 
the  burden  is  cast  on  the  prisoner  to  prove 
that  his  so  swearing  was  caused  by  surprise, 
inadvertence,  or  mistake.  State  v.  Cham- 
berlin,  30  Vt.  559. 

{d)  Verdict. 

193.  Variance  in.  An  indictment  for 
perjury  alleged  that  the  offense  was  com- 
mitted before  A.,  and  the  verdict  was  guilty 
of  perjury  before  A.  and  F.  Held  that  the 
variance  was  fatal.  State  v.  Mayson,  3  Brev. 
284. 

194.  Where  the  indictment  charged  that 
the  defendant  falsely  swore  that  he  did  not 
execute  a  certain  deed,  and  the  jury  found 
him  guilty  of  perjury  in  denying  his  signa- 
ture, it  was  held  that  the  judgment  must  be 
arrested,  as  a  deed  maybe  executed  without 
signing.     State  v.  Avera,  2  Taylor,  237. 

2.  Subornation  of  perjury. 
{a)  Requisites. 

195.  Perjury  must  have  been  instigated. 

To  constitute  subornation  of  perjury,  the  ac- 
cused must  have  procured  the  commission 
of  the  perjury  by  inciting,  instigating,  or 
persuading  the  guilty  party.  Com.  v.  Doug- 
lass, 5  Mete.  241. 

196.  Must  have  been  knowledge  that 
testimony  would  be  willfully  false.  Al- 
thougli  a  person  charged  with  subornation 
of  jjerjury  knew  that  the  testimony  of  a  wit- 
ness whom  he  called  would  be  false,  yet  if 
he  did  not  know  that  the  witness  would 
willfully  testify  to  a  fact  knowing  it  to  be 


514 


PERJURY  AND   SUBORNATION   OF  PERJURY. 


Subornation  of  Perjury.         Requisites.        Indictment. 


Evidence. 


false,   he   cannot  be  convicted.      Com.    v. 
Douglass,  sii])7'a. 

197.  May  be  through,  party  in  other 
State.  In  Massf,chusetts,  a  person  may  be 
guilty  of  subornation  of  perjury  who  causes 
the  perjury  to  be  committed  there,  through 
the  instrumentality  of  a  party  in  another 
State.     Com.  v.  Smith,  11  Allen,  243. 

(h)  Indictment. 

198.  Must  aver  that  the  witness  testi- 
fied. In  an  indictment  for  suborning  L.  to 
commit  perjury,  it  must  be  alleged  that  L. 
testified,  and  his  testimony  be  set  out  in  sub- 
stance, and  the  omission  of  the  verb  signify- 
ing that  L.  was  sworn,  will  be  fatal  on  mo- 
tion in  arrest  of  judgment.  State  v.  Leach, 
27  Vt.  317. 

199.  An  indictment  for  subornation  of 
perjury  charged  that  the  defendant  did 
feloniously,  knowingly,  and  willingly  pro- 
cure A.  and  B.  to  swear  falsely  in  the  tak- 
ing of  an  oath.  But  it  did  not  allege  that 
A.  and  B.,  and  either  of  them,  swore  falsely. 
Held  bad  on  demurrer.  U.  S.  v.  Wilcox,  4 
Blatchf.  393. 

200.  Description  of  proceedings.  In  an 
indictment  for  perjury  or  subornation  of  per- 
jury, it  is  necessary  to  allege  that  the  false 
testimony  was  given  in  a  judicial  proceed- 
ing. Where,  therefore,  the  statute  required 
that  a  complaint  in  a  prosecution  for  bas- 
tardy, should  be  in  writing,  and  an  indict- 
ment for  suborning  the  female  to  commit 
perjury  in  making  such  a  complaint  did  not 
allege  that  the  complaint  was  in  writing, 
the  indictment  was  held  insufficient.  State 
T.  Simons,  30  Vt.  620. 

201.  An  indictment  for  subornation  of 
perjury  in  a  deposition  to  be  used  in  a  civil 
action  in  another  State,  is  sufficient  which 
alleges  that  on  a  day  named  a  cause  was  de- 
pending, and  that  an  issue  was  then  and 
there  joined  in  the  cause  between  the  par- 
ties, and  that  on  the  same  day,  "  in  the  said 
cause  then  and  there  so  depending  as  afore- 
said a  commission  was  duly  issued."  Com. 
V.  Smith,  11  Allen,  243. 

202.  Must  charge  guilty  knowledge. 
Guilty  knowledge  on  the  part  of  the  subor- 
ner being  a  necessary  element  in  the  crime 


of  subornation  of  peijuiy,  it  must  be  aver- 
red in  the  indictment  and  proved  on  the 
trial.  An  indictment  for  subornation  of 
perjury  charged  in  due  form  of  law  willful 
and  corrupt  perjury  by  A.,  and  that  A.  knew 
that  his  testimony  was  false  and  fictitious, 
and  concluded  with  the  averment  that  A. 
had  "in  manner  aforesaid  "  committed  will- 
ful and  corrupt  peijury;  and  it  then  alleged 
that  B.  "procured,  persuaded,  and  suborned 
the  witness  to  commit  said  willful  and  cor- 
rupt perjury  in  manner  and  form  aforesaid." 
Held  that  the  guilty  knowledge  of  B.  was  suf- 
ficiently averred.  Stewart  v.  State,  22  Ohio, 
N.  S.  477;  s.  c.  1  Green's  Crim.  Reps.  527. 

203.  Against  several.  An  indictment 
may  charge  one  person  in  one  count  with 
perjury,  and  another  person  in  another 
count  with  subornation  of  perjury.  State 
v.  Lea,  Cold.  Tenn.  175. 

204.  For  attempt.  An  indictment  for 
attempting  to  commit  subornation  of  per- 
jury need  not  state  in  what  the  proposed 
perjury  would  have  consisted.  State  v. 
Holding,  1  McCord,  31. 

205.  In  Missouri,  an  indictment  for  at- 
tempting to  bribe  a  witness  (1  R.  C.  601), 
need  not  allege  that  the  testimony  of  the 
witness  was  material,  or  that  he  had  been 
summoned,  or  that  the  justice  of  the  peace 
before  whom  the  suit  was  pending  was  an 
acting  justice,  or  the  intent  to  impede  and 
obstruct  the  due  course  of  justice,  or  the 
kind  and  amount  of  the  money  or  property 
ofi'ered  as  a  bribe,  or  the  nature  of  the  of- 
fense with  which  the  defendant  stood 
charged,  or  that  the  defendant  was  guilty 
of  the  charge.  State  v.  Biebusch,  32  Mo. 
276. 

(c)  Evidence. 

206.  Witness.  A  person  may  be  con- 
victed of  subornation  of  perjury  upon  the 
testimony  of  a  single  witness.  Com.  v. 
Douglass,  5  Mete.  241.  Where,  however,  on 
a  trial  for  subornation  of  perjury,  the  person 
who  committed  the  perjury  is  the  sole  wit- 
ness on  the  part  of  the  prosecution,  it  forms 
an  exception  to  the  rule  that  it  is  competent 
to  convict  upon  the  uncorroborated  testi- 
mony of  an  accomplice.  People  v.  Evans, 
40  N.  y,  1. 


PILOT.— PIEACY 


515 


Liability  of. 


At  Common  Law. 


Privateers. 


iMiot; 


Liability  of.  To  render  a  person  liable 
as  the  pilot  for  a  violation  of  the. statute  of 
New  York  (Laws  of  1847,  ch.  69),  relative 
to  pilots,  for  the  safe  pilotage  of  vessels 
through  the  channel  commonly  called  Hell 
Gate,  he  must  have  been  on  board  the  vessel 
piloted.  Francisco  v.  People,  4  Parker, 
139. 


|3irnci). 


1.  At  common  law.  A  pirate  at  common 
law  is  one  who,  to  enrich  himself,  either  by 
surprise  or  force  sets  upon  merchants  or 
other  traders  by  sea,  to  despoil  them  of  their 
goods.     U.  S.  V.  Tully,  1  Gallis.  247. 

2.  The  felonious  taking  or  carrying  away 
of  a  ship,  and  the  property  on  board  of  her, 
which  if  done  on  land  would  constitute 
felony,  is  piracy  at  common  law,  although 
there  be  no  violence  or  putting  in  fear.  U. 
S.  V.  Smith,  5  Wheat.  153 ;  U.  S.  v.  Pirates, 
lb.  184;  U.  S.  V.  Klintock,  lb.  144  ;  U.  S.  v. 
Jones,  3  Wash.  C.  C.  231. 

3.  A  seizure  made  animo  furandi  under  a 
commission  purporting  to  be  from  a  republic 
whose  existence  is  unknown,  or  from  a 
province  of  an  acknowledged  nation,  is 
piracy.     U.  S.  v.  Klintock,  supra. 

4.  May  be  on  ship  at  anchor.  Piracy 
may  be  committed  on  a  ship  which  is  at 
anchor,  with  no  one  in  her,  part  of  the  crew 
being  in  the  ship's  boat  and  the  balance  on 
shore.     U.  S.  v.  Tully,  supra. 

5.  Under  acts  of  Congress.  A  robbery 
at  common  law,  when  committed  on  the 
high  seas,  is  piracy  by  the  act  of  Congress 
of  1790,  ch.  38,  §  8;  and  the  Circuit  Courts 
have  jurisdiction  of  the  oflFcnse.  U.  S.  v. 
Palmer,  3  Wheat.  610. 

6.  To  constitute  piracy  under  the  act  of 
Congress  of  April  30th,  1790,  ch.  9,  the 
intent  must  have  been  ardmus  furandi ; 
but  personal  violence  is  not  necessary.  U. 
8.  V.  Tully,  supra.  The  acts  must  have  been 
such  as  are  perpetrated  by  citizens  or  on 
vessels  belonging  to  the  United  States. 
U.  S.  V.  Howard,  3  Wash.  C.  C.  340. 


7.  Any  intercourse  with  pirates  calculated 
to  further  their  views  is  within  the  act  of 
Congress  of  April  30th,  1790,  §  12.  A  con- 
federacy by  citizens  on  land,  or  on  board  of 
an  American  vessel,  with  pirates,  or  a  yield- 
ing up  of  a  vessel  to  such  pirates,  is  within 
the  8th  section  of  the  same  act.  And  an 
attempt  by  a  mariner  to  corrupt  the  master 
of  a  vessel,  and  induce  him  to  go  over  to 
pirates,  is  also  within  such  act.  U.  S.  v. 
Howard,  supra. 

8.  The  act  of  Congress  of  April  30,  1790, 
§  8,  punishes  in  the  courts  of  the  United 
States  a  crew  acting  in  defiance  of  all  law, 
and  acknowledging  allegiance  to  no  govern- 
ment.    U.  S.  v.  Klintock,  supra. 

9.  The  word  "  piratical,"  in  the  act  of 
Congress  of  March  3d,  1819,  ch.  75,  is  not 
restricted  in  its  construction  to  such  acts  as 
by  the  law  of  nations  are  denominated 
piracy,  but  embraces  such  as  pirates  are  in 
the  habit  of  committing.  A  piratical  ag- 
gression, search,  restraint,  or  seizure  is 
within  the  meaning  of  the  act;  and  inno- 
cence or  ignorance  of  the  owner  of  the 
vessel  of  such  acts  will  not  save  it  from 
condemnation.  U.  S.  v.  Biig  Malek  Adhel,  2 
How.  U.  S.  210. 

10.  To  constitute  a  vessel  piratical,  it 
makes  no  difiference  whether  she  be  armed 
for  offense  or  defense,  provided  she  commit 
the  unlawful  acts  alleged.  To  bring  a  vessel 
within  the  terms  of  the  act  of  Congress  of 
March  3d,  1819,  ch.  75,  there  need  not  be 
either  actual  plunder  or  an  intent  to  plunder. 
It  is  sufiicient  that  the  act  is  committed  from 
hatred,  or  an  abuse  of  power,  in  a  spirit  of 
mischief.  U.  S.  v.  Brig  Malek  Adhel, 
svpra. 

11.  Privateers.  There  is  no  exception 
in  favor  of  commissioned  privateers.  U.  8. 
V.  Jones,  3  Wash.  C.  C.  209.  And  where  an 
American  citizen  fits  out  a  privateer  to  cruise 
against  a  power  at  peace  with  the  United 
States,  he  is  not  protected  by  a  commission 
from  another  belligerent  power.  U.  S.  v. 
Pirates,  5  Wheat.  184. 

12.  But  in  a  state  of  war  between  two 
nations,  a  commission  to  a  private  armed 
vessel  from  either  of  the  belligerents  afibrds 
a  defense  in  the  courts  of  the  enemy  against 


516 


PIRACY.— POUND   BPtEACH.— PRESENTMENT. 


Foreign  Cruisers. 


What  Essential  to. 


What  at  Common  Law. 


a  charge  of  robbery  or  piracy  on  the  high   voyage  must  have  been  uhdertaken  with  a 


seas.    U.  S.  v.  Baker,  5  Bhitchf.  6. 

13.  Foreign  cruisers.  The  courts  of  the 
United  States  Tvill  not  treat  as  pirates  the 
cruisers  of  either  of  two  nations  who  it  is 
well  known  are  at  war  with  each  other,  al- 
though the  independence  of  one  of  them  has 
not  been  acknowledged  by  our  government. 
The  Josefa  Segunda,  5  Wheat.  338 ;  U.  S.  v. 
Palmer,  3  Wheat.  610. 

14.  Robbery  on  foreign  vessel.  Robbery 
committed  by  a  person  on  the  high  seas,  on 
board  of  a  ship  or  vessel  belonging  to  sub- 
jects of  a  foreign  State,  is  not  piracy.  U.  S. 
V.  Palmer,  supra. 

15.  Seizure  of  piratical  vessel.  Pirates 
may  lawfully  be  cajjtured  on  the  ocean  by 
the  ships  of  any  nation.  The  Marianna 
Flora,  11  Wheat.  1.  The  vessel  upon  be- 
coming a  pirate  loses  her  national  character. 
U.  S.  V.  Pirates,  5  Wheat.  184. 

16.  Under  the  act  of  Congress  of  March 
3d,  1819,  ch.  75,  punishing  piracy,  any 
armed  vessel  may  be  seized  and  brought  in, 
or  any  vessel  the  crew  of  which  are  armed, 
and  which  shall  have  attempted  or  commit- 
ted any  piratical  aggression,  search,  re- 
straint, depredation,  or  seizure  upon  any 
vessel,  and  the  offending  vessel  may  be 
condemned  and  sold,  the  proceeds  to  be 
divided  between  the  United  States  and  the 
captors,  in  the  discretion  of  the  court.  U.  S. 
V.  Brig  Malek  Adhel,  2  How.  U.  S.  210. 

17.  Indictment.  Where  the  indictment 
charged  that  the  piracy  was  committed  on 
the  high  seas,  within  the  admiralty  and 
maritime  jurisdiction  of  a  particular  State, 
it  was  held  that  the  venue  was  well  laid. 
U.  S.  V.  Gibert,  2  Sumner,  19. 

18.  Proof  of  character  of  vessel.  On 
the  trial  of  an  indictment  for  piracy,  the 
national  character  of  the  vessel  need  not  be 
proved  by  her  register  or  by  documentary 
evidence.     U.  S.  v.  Pirates,  5  Wheat.  184. 

19.  Guilty  knowledge  and  intent.  To 
convict  persons  of  piracy,  it  must  be  proved 
that  they  participated  in  the  imlawful  cap- 
ture of  property  with  a  felonious  intent.  U. 
S.  v.  Jones,  3  Wash.  C.  C.  231. 

20.  In  order  to  make  all  the  officers  and 


piratical  design,  and  they  must  have  known 
and  acted  upon  such  design,  otherwise  those 
only  can  be  convicted  who  actively  co-oper- 
ated in  the  imlawful  enterprise.  U.  S.  v. 
Gibert,  2  Sumner,  19. 

21.  Where  a  United  States  vessel  was 
attacked  by  an  armed  ship  without  felonious 
intent,  under  the  mistaken  belief  that  she 
was  a  piratical  cruiser,  it  was  held  not  a 
piratical  aggression  within  the  acts  of  Con- 
gress, nor  to  subject  the  ship  if  captured  to 
confiscation.  The  Marianna  Flora,  11 
Wheat.  1. 

See  Slave  tkade. 


See  Homicide. 


Jouub   CvcacI), 


What  essential  to.  The  driving  or  con- 
veying away  the  imijounded  cattle,  is  a 
necessary  part  of  the  offense  of  pound 
breach.  State  v.  Young,  18  New  Hamp^ 
543. 


Presentment 


1.  What  at  common  law.  A  present- 
ment at  common  law  is  the  instruction  given 
by  the  grand  jury  to  the  proper  officer  of  the 
court  for  framing  an  indictment  for  an  of- 
fense which  they  find  to  have  been  com- 
mitted. When  the  indictment  prepared  by 
him  and  submitted  to  them  has  been  found 
a  true  liill,  the  presentment  is  merged  in  it. 
Christian's  Case,  7  Graft.  G31. 

2.  How  used  in  Virginia.  In  Virginia, 
the  presentment  has  been  made  the  founda- 
tion for  a  summons  to  show  cause  at  the  next 
court  why  an  information  for  the  offense 
presented  should  not  be  filed  against  the 
accused.  When  an  indictment  has  been 
previously  found,  an  information  will  not 
be  granted,    although  the    indictment  has 


crew  of  a  piratical  vessel  guilty,  the  original  |  been   quashed  for  insufficiency.      The  pre- 


PEESENTMENT.— PUBLIC  JUSTICE,  OBSTRUCTION   OF.  517 


Finding  and  Entering  of  Record. 


Indictment. 


sentment,  and  not  the  time  of  filing  the 
information  upon  it,  is  deemed  the  date  of 
the  prosecution.     Ibid. 

3.  Finding  and  entering  of  record.  A 
presentment  should  be  made  in  the  presence 
of  the  juiy,  but  need  not  be  signed  by  all  of 
them.  It  should  be  handed  to  the  court  by 
their  foreman,  and  when  entered  of  record 
there  need  be  no  further  proof  of  its  authen- 
ticity. State  V.  Cox,  6  Ired.  440.  It  is  not 
necessary  to  its  validity  that  it  should  ap- 
pear on  the  record  m  extenso.  Com.  v. 
Tieman,  4  Graft.  545. 

4.  A  presentment  which  was  not  found 
upon  the  knowledge  of  the  grand  jury,  or 
any  one  of  their  number,  but  upon  informa- 
tion of  a  person  who  was  not  sworn  before 
the  court,  and  sent  to  the  grand  jury  pre- 
vious to  his  being  examined  by  them,  will 
be  bad  on  a  plea  of  abatement.  State  v. 
Love,  4  Humph.  255. 


|)rofanc  Swearing, 

1.  How  regarded.  It  is  an  indictable 
offense  to  utter  in  a  public  place,  in  the 
presence  of  others,  profane  and  blasphemous 
language.     State  v.  Steele,  3  Heisk.  135. 

2.  "What  deemed.  Any  words  amounting 
to  an  imprecation  of  future  divine  vengeance 
will  constitute  the  offense;  and  several  dis- 
tinct offenses  may  be  committed  by  the  same 
individual  in  relation  to  the  same  person  on 
the  same  day,  Holcomb  v.  Cornish,  8  Conn. 
375. 

3.  Arrest  of  defendant.  In  Connecticut, 
a  justice  of  the  peace  who  has  plain  view 
and  personal  knowledge  of  the  offense  of 
profane  swearing,  may  arrest  and  commit 
the  offender  without  previous  complaint  or 
Avarrant.     Holcomb  v.  Cornish,  supra. 

4.  Indictment.  An  indictment  for  pro- 
fane swearing  must  allege  that  it  was  uttered 
in  the  hearing  of  divers  persons.  An  in- 
dictment therefore  was  held  insufficient 
which  charged  that  the  defendant  "  in  the 
public  streets  of  the  town  of  L.,  with  force 
and  arms,  and  to  the  great  displeasure  of 
Almighty  God,  and  the  common  nuisance  of 
all  the  good  citizens?  of  the  State  then  and 


there  being  assembled,  did  for  a  long  time, 
to  wit,  for  the  space  of  twelve  seconds,  pro- 
fanely curse  and  swear,  and  take  the  name 
of  Almighty  God  in  vain,  to  the  common 
nuisance,"  &c.  State  v.  Pepper,  68  N.  C. 
259;  s.  c.  2  Green's  Crim,  Reps.  738,  note. 

5.  An  indictment  alleged  that  the  defend- 
ant did  publicly,  in  the  streets  of  the  town 
of  L.,  profanely  curse  and  swear,  and  take 
the  name  of  Almighty  God  in  vain,  to  the 
common  nuisance  of  the  good  people  of  the 
State  then  and  there  being  and  residing. 
Held  that  no  crime  was  charged.  State  v. 
Powell,  70  N.  C.  67;  s.  c.  2  Green's  Crim. 
Reps.  731 ;  approving  State  v.  Pepper,  su- 
pra. 

6.  An  indictment  which  alleged  that  A., 
at,  &c.,  with  force  and  arms,  on,  &c.,  did 
publicly  curse  and  swear,  and  take  the  name 
of  Almighty  God  in  vain,  for  a  long  time,  to 
wit,  for  the  space  of  two  hours,  to  the  com- 
mon nuisance  of  all  of  the  citizens  of  the 
State,  and  against  the  peace  and  dignity  of 
the  State,  was  held  insufficient.  State  v. 
Jones,  9  Ired.  38. 

7.  The  whole  conversation  need  not  be  set 
out  in  the  indictment ;  but  only  so  much  of 
it  as  clearly  describes  the  language  used. 
State  V.  Steele,  supra;  approving  State  v, 
Graham,  3  Sneed,  134. 

See  Blasphemy. 


Prolusions. 


See  Unwholesome  provisions,  sale  op. 


Public  Bribgc. 

See  Toll. 


Public  Justice,  ©bstruc- 
tion  of. 

Indictment.  The  dissuading,  hindering 
and  preventing  a  witness  from  appearing  at 
court  being  an  offense  at  common  law,  the 
words  "  contrary  to  the  form  of  the  statute '' 


518   EAILROAD  TKA1¥,   UNLAWFUL   STOPPING.— EAPE. 


By  Pulling  Bell  Rope. 


What  Constitutes. 


may  be  rejected  as  surplusage.  The  indict- 
ment need  not  state  where  the  witness  was 
summoned,  or  when  he  was  required  to  ap- 
pear before  the  court,  nor  in  whose  behalf 
he  was  summoned,  nor  that  his  testimony 
was  material.  "Where  the  indictment  Btates 
facts  showing  the  obstruction  of  "  the  due 
course  of  justice,"  it  need  not  show  that  the 
trial  was  hindered  or  the  result  altered,  nor 
conclude  "to  the  obstruction  and  hindrance 
of  public  justice."  Com.  v.  Reynolds,  14 
Gray,  87. 


Uailroab  Strain,  ilnlaivj- 
fulln  Stopping. 

By  pulling  bell  rope.  In  Massachusetts, 
the  defendant  was  indicted  for  obstructing 
a  train  of  cars  by  pulling  the  signal  rope  fast- 
ened to  a  bell  upon  the  engine,  by  which 
act  the  train  was  stopped,  and  the  safety  of 
the  passengers  endangered.  It  was  proved 
at  the  trial,  that  the  defendant  was  a  pas- 
senger at  the  time  of  committing  the  offense, 
and  that  the  bell  rope  was  ordinarily  pulled 
as  a  danger  signal  to  notify  the  engineer  to 
stop  the  train.  A  majority  of  the  court  held 
that  the  evidence  was  not  sufficient  to  sus- 
tain a  conviction  for  a  criminal  obstruction 
of  the  train,  within  the  meaning  of  the  stat- 
ute (Gen.  Stats,  ch.  63,  §  107)  providing  for 
the  punishment  of  a  person  who  "  obstructs 
any  engine  or  carriage  passing  upon  a  rail- 
road, or  endangers  the  safety  of  persons  con- 
veyed in  or  upon  the  same,  or  assists  therein. 
Com.  V.  Killian,  109  Mass.  345;  s.  c.  1  Green's 
Crim.  Reps.  192. 

For  olstructing  railroad  traci,  see  Nuisance. 


Kapc. 


1.  What  constitutes. 

2.  Who  may  commit. 

3.  Against  whom  offense  may  be 

committed. 

4.  Indictment. 

5.  Evidence. 

6.  Verdict. 

7.  Assault  with  intent  to  com- 

mit RAPE. 


(a)  What  deemed. 
{!))  Who  may  commit. 

(c)  Indictment. 

(d)  Evidence. 

(e)  Verdict. 

if)  Punishment. 

1.  What  constitutes. 

1.  Meaning  of.  Rape  is  the  carnal  knowl- 
edge of  a  female,  forcibly,  and  against  her 
will.     Charles  v.  State,  6  Eng.  389. 

2.  Must  be  force.  Force,  actual  or  con- 
stractive,  is  essential  to  constitute  rape. 
Therefore  an  instruction  that  "if  a  man  have 
carnal  knowledge  of  a  woman  against  her 
will,  he  may  be  convicted  of  rape,"  omitting 
the  word  "  forcibly,"  is  insufficient.  Cato 
v.  State,  9  Fla.  163. 

3.  The  following  charge  on  a  trial  for 
rape,  was  held  erroneous :  "  As  to  the  degree 
of  force  used  in  a  case  like  this,  where  re- 
sistance is  not  made  by  reason  of  a  repre- 
sentation leading  the  female  to  believe  that 
sexual  penetration  of  her  body  is  necessary 
for  the  recovery  from  disease,  the  force  used 
in  ordinary  sexual  intercourse  is  sufficient  to 
constitute  a  rape."  Walter  v.  People,  50 
Barb.  144. 

4.  Must  have  been  resistance.  The  crime 
of  rape  can  only  be  committed  when  there  is 
on  the  part  of  the  female,  the  utmost  reluct- 
ance, and  the  utmost  resistance.  State  v. 
Burgdorf,  53  Mo.  65;  s.  c.  2  Green's  Crim. 
Reps.  593. 

5.  The  following  instruction,  on  a  trial  for 
rape,  was  held  proper:  "The  jury  must  be 
satisfied  that  the  connection  was  had  by 
force,  and  against  the  will  of  the  prosecu- 
trix, and  that  there  was  the  utmost  reluct- 
ance and  resistance  on  her  part,  or  that  her 
will  was  overcome  by  fear  of  the  defendant ; 
and  if  you  entertain  a  reasonable  doubt  of 
such  reluctance  and  resistance,  it  is  your 
duty  to  acquit."  Strang  v.  People,  24 
Mich.  1. 

6.  In  New  York,  to  constitute  the  crime 
of  rape  of  a  female  over  ten  years  of  age,  if 
she  is  conscious  of  what  is  attempted,  has 
possession  of  her  mental  and  physical  pow- 
ers, is  not  overawed  by  the  number  of  assail- 
ants, nor  terrified  by  threats,  nor  in  such 


EAPE. 


519 


^Ayhat  Constitutes. 


place  that  resistance  is  useless,  she  must  re- 
sist until  exhausted  or  overpowered.  Peo- 
ple'V.  Dohriug,  59  N.  Y.  374. 

7.  Where  female  is  insensible.  Rape 
may  be  committed  by  a  man's  having  car- 
nal intercourse  with  a  woman  while  she  is 
wholly  insensible,  with  such  force  as  is  nec- 
essary to  accomplish  the  purpose.  Com.  v. 
Burke,  105  Mass.  376. 

8.  In  New  York,  forcible  carnal  connec- 
tion Avith  a  female  who  is  insensible  from 
intoxication  is  not  rape,  but  a  crime  under 
the  twenty-third  section  of  the  act  respect- 
ing oifenses  against  the  person.  People  v. 
Quinn.  50  Barb.  128.  Where  the  evidence 
showed  that  the  female  and  the  defendants 
were  drinking  together  voluntarily,  and 
afterward  went  out  together  without  any 
assignation  or  any  consent  on  her  part  to 
have  sexual  intercourse  with  them,  and  she 
became  insensible  from  the  liquor,  and  while 
in  such  condition  the  defendants  violated 
her  person,  it  was  held  that  they  were  not 
guilty  of  rape.     lb. 

9.  Purpose  accomplished  by  fraud. 
Where  sexual  intercourse  is  had  with  a 
female  through  fraud,  without  force,  it  is 
not  rape.  People  v.  Bartow,  1  Wheeler's 
Crim.  Cas.  378. 

10.  On  a  trial  for  rape,  it  was  held  that 
the  following  request  of  the  prisoner's  coun- 
sel of  the  court  to  charge  was  correct,  and 
that  the  jury  should  have  been  so  instructed : 
that  "  even  if  the  defendant  had  accom- 
plished his  alleged  purpose  by  fraud  with- 
out intending  to  use  force,  such  fraud  did 
not  constitute  rape,  unless  the  evidence 
showed  that  the  defendant  intended  to  use 
force  if  the  fraud  failed."  Walter  v.  People, 
50  Barb.  144. 

11.  Where  female  consented.  Carnal 
knowledge  of  the  person  of  a  female  of 
mature  years,  of  good  size  and  strength, 
with  her  consent,  and  without  fraud,  she 
being  at  the  time  laboring  under  dementia, 
not  idiotic,  but  approaching  toward  it,  does 
not  constitute  rape.  Crosswell  v.  People,  13 
Mich.  427. 

12.  In  case  of  consent,  the  defendant 
cannot  be  convicted,  although  such  consent 
was  obtained  by  fraudulent  representations. 


Don  Moran  V.  People,  25  Mich.  356;  Lewis 
V.  State,  30  Ala.  54. 

13.  But  although  the  female  consented, 
yet  if  her  consent  was  obtained  by  the  use 
of  force,  and  her  will  was  overcome  by  fear 
of  personal  injury,  it  is  rape,  and  not  seduc- 
tion.    Croghan  v.  State,  22  Wis.  444. 

14.  On  a  trial  for  rape,  the  court  charged 
the  jury  that  if  the  prosecutrix  consented 
through  fear,  or  consented  after  the  fact,  or 
if,  though  she  at  first  consented,  she  was 
afterward  forced,  the  oflFense  was  committed. 
Held  correct.  Wright  v.  State,  4  Humph. 
194. 

15.  On  the  trial  of  an  indictment  for  rape 
alleged  to  have  been  committed  on  a  girl 
twelve  years  of  age,  the  court  instructed  the 
jury  that  if  the  girl  in  the  first  instance  con- 
sented, and  the  defendant  commenced  the 
sexual  intercourse  with  her  consent,  but  she 
then  withdrew  her  consent,  and  the  defend- 
ant, notwithstanding,  forcibly  continued  the 
intercourse,  it  was  rape.  Held  that  in  con- 
sideration of  the  age  and  physical  strength 
of  the  girl,  and  the  relation  she  sustained 
to  the  defendant  (stepdaughter),  there  was 
no  error.     State  v.  Niles,  47  Vt.  82. 

16.  The  carnal  knowledge  of  a  female 
under  ten  years  of  age  is  rape,  although  the 
act  be  committed  with  her  consent.  Fizele 
V.  State,  25  Wis.  364 ;  Williams  v.  State,  47 
Miss.  609. 

17.  Penetration.     Under  the  existing  law 
of  North  Carolina,  the  slightest  penetration 
is    sutBcient    to    constitute  rape.     State  v.  ■ 
Hargrave,  65  N.  C.  466. 

18.  Emission.  In  Ohio,  to  constitute  rape 
there  must  have  been  emission.  Blackburn 
v.  State,  23  Ohio,  N.  S.  102 ;  referring  to 
Williams  v.  State,  14  Ohio,  222.  It  is  not 
so  in  Pennsylvania.  Penn.  v.  Sullivan, 
Addis.  143. 

19.  In  North  Cartilina,  upon  an  indictment 
under  the  statute  (Rev.  Code,  ch.  34,  §  5), 
for  carnally  knowing  and  abusing  a  female 
child  under  the  age  of  ten  years,  it  is  neces- 
sary to  prove  emission  as  well  as  penetra- 
tion. State  V.  Gray,  8  Jones,  170.  But  under 
the  act  of  1860-61  carnal  knowledge  of  a 
female  is  deemed  complete  upon  proof  of 
penetration  alone.     State  v.  Hodges,  Piiil. 


520 


RAPE. 


Who  may  Commit.    Against  whom  Offense  may  be  Committed. 


Indictment, 


N.  C.  231 ;  State  v.  Storkey,  63  N.  C.  7.  In 
Alabama,  proof  of  penetration  alone  is  suffi- 
cient.    Waller  v.  State,  40  Ala.  325. 

3.  Who  may  commit. 

20.  Boy  under  fourteen.  The  presump- 
tion that  an  infant  under  the  age  of  fourteen 
is  incapable  of  committing,  or  attempting  to 
commit  the  crime  of  rape  may  be  rebutted 
by  proof  that  he  has  arrived  at  the  age  of 
puberty.  Williams  v.  State,  s?/^:*?-^  /  see  2^ost, 
sui.  123. 

21.  Persons  assisting.  '  In  rape,  all  who 
are  present  and  participating  in  the  outrage 
are  regarded  as  principals,  and  may  be 
jointly  indicted.  Strang  v.  People,  24 
Mich.  1. 

22.  But  it  is  improper  for  the  court,  on  a 
trial  for  rape,  to  refuse  to  charge  the  jury 
that  if  they  are  satisfied,  from  the  evidence, 
that  the  defendant  stood  by  at  the  time  the 
oflense  was  alleged  to  have  been  committed, 
but  did  no  act  to  aid,  assist,  or  abet  the 
same,  they  should  find  the  defendant  not 
guilty.  People  v.  Woodward,  45  Cal.  293  ; 
s.  c.  2  Green's  Crim.  Reps.  421. 

3.   AcAIIiiST     WHOM     OFFENSE     MAT   BE    COM- 
MITTED. 

23.  With  reference  to  age.  A  female 
ceases  to  be  ''a  child,"  and  becomes  "a 
woman,''  at  the  age  of  puberty,  within  the 
meaning  of  the  statute  of  Ohio,  defining 
the  crime  of  rape.  Blackburn  v.  State,  22 
Ohio,  N.  S.  102;  s.  c.  1  Green's  Crim.  Reps. 
660. 

24.  In  jMaine,  by  statute  (R.  S.  ch.  154, 
§  17),  rape  consists  in  a  man's  ravishing  and 
carnally  knowing  any  female  of  the  age  of 
ten  years,  or  more,  by  force  and  against  her 
will.     State  v.  Blake,  39  Mains,  322. 

2.5.  The  carnal  knowledge  of  a  female 
under  the  age  of  ten  years,  is  rape  at  com- 
mon law.  People  v.  McDonald,  9  Mich.  150. 
A  child  under  ten  years  of  age,  cannot  con- 
sent to  sexual  intercourse  so  as  to  rebut  the 
presumption  of  force.  Whether  the  same 
presumption  does  not  exist  in  the  case  of  a 
child  over  that  age  who  is  equally  imma- 
ture—gwr^/.     Stephen  v.  State,  11  Ga.  225. 


4.    T:SDICTMENT. 

26.  Parties.  Two  or  more  persons  may 
be  joined  in  an  indictment  for  rape.  Denis 
V.  State,  5  Ark.  230. 

27.  Necessary  averments.  The  words 
"forcibly"  and  "against  the  will,"  are 
essential  in  an  indictment  for  rape.  State 
V.  Jim,  1  Dev.  142.  It  is  otherwise,  as  to 
the  word  "unlawfully."     Com.  v.  Bennett, 

2  Va.  Cas.  235;  Weinzorflin  v.  State,  7 
Blackf.  186.  An  indictaient  for  rape  which 
charges  that  the  woman  was  gotten  with 
child,  is  not  for  that  reason  bad.  U.  S.  v. 
Dickinson,  Hemp.  1. 

28.  Where   an  indictment   for  rape  does 
not  charge  that  the  assault  was  with  the  ^ 
intent  "  feloniously  "  to  ravish,  it  is  insuffi- 
cient.    State  V.  Scott,  72  K  C.  461. 

29.  In  Massachusetts,  in  an  indictment 
for  rape,  the  omission  of  the  words  ' '  felo- 
nious "  or  "  feloniously "  and  "  with  force 
and  arms  "  made  the  assault,  is  no  longer  a 
ground  for  a  motion  in  arrest  of  judgment. 
R.  S.  ch.  137,  §  14;  Act  of  1852,  ch.  37, 
§  3;  Com.  v.  Scannel,  11  Cush.  547. 

30.  The  word  "ravish,"  is  essential,  in  an 
indictment  for  rape.     Gougleman  v.  People, 

3  Parker,  15.  The  words  "carnal  knowl- 
edge "  of  a  woman,  by  a  man  in  an  indict- 
ment, mean  sexual  bodily  connection.  Com. 
V.  Squires,  97  Mass.  59. 

31.  In  an  indictment  for  rape,  it  is  a  suf- 
ficient averment  of  force  to  allege  that  the 
accused  violently  and  against  the  will  of  the 
woman  "feloniously  did  ravish,  and  car- 
qally  know."     Com.  Fogerty,  8  Gray,  489. 

/  32.  An  indictment  for  rape  upon  a  child 
jlcss  than  ten  years  of  age  need  not  allege 
ithat  the  ofiense  was  committed  "with 
iforce,"  and  "  against  the  will"  of  the  child, 
ithe  averment  that  she  was  of  tender  years 
Ibeiug  equivalent.     State  v.  Black,  63  Maine, 

jWo. 

v^3.  Name  of  person  injured.  Where 
an  indictment  alleged  that  a  rape  was  com- 
mitted on  Ellen  Frances  Davis,  and  it  was 
proved  that  her  true  name  was  Helen  Fran- 

^'ces  Davids,  but  that  she  went  as  much  by 
one  name  as  the  other,  it  was  held  that  the 
variance  was  immaterial.    Taylor  v.  Com.  20 

KGratt.  825. 


EAPE. 


521 


Indictment. 


Evidence. 


34.  Averment  of  sex.  In  an  indictment 
for  rape,  the  pronoun  "her"  sufficiently  in- 
dicates the  sex,  without  expressly  averring 
that  the  person  injured  was  a  female;  and 
the  indictment  need  not  state  that  the  per- 
son injured  was  more  than  ten  years  of  age. 
Hill  V.  State,  3  Heisk.  317. 

35.  Where  an  indictment  for  rape  did  not 
charge  that  the  offense  was  committed  on  a 
female,  but  the  person  was  spoken  of  as 
"  Ellen  Frances  "  and  the  personal  pronoun 
*'  her  "  was  twice  used  in  the  indictment,  in 
relation  to  such  person,  it  was  held  sufficient. 
Taylor  y.  Com.  20  Gratt.  825. 

36.  An  indictment  which  alleged  that 
the  prisoner  ' '  with  force  and  arms,  in  and 
upon  one  Mary  Ann  Taylor,  in  the  peace  of 
the  State,  violently  and  feloniously  did 
make  an  assault,  and  her  the  said  Mary  Ann 
Taylor  then  and  there,  violently  and  against 
her  will,  feloniously  did  ravish  and  carnally 
know,"  charges  with  sutficient  certainty 
that  the  person  assaulted  was  a  female. 
State  V.  Farmer,  4  Ired.  224. 

37.  In  North  Carolina,  it  was  held  that  an 
indictment  under  the  statute  (1  R.  S.  ch.  34, 
§  5),  for  abusing  and  carnally  knowing  a 
female  child  under  the  age  of  ten  years, 
need  not  describe  the  infant  as  "  a  female 
child,"  nor  apply  to  her  the  name  of  "  spin- 
ster."    State  V.  Terry,  4  Dev.  &  Batt.  152. 

38.  In  Virginia,  where  the  indictment 
instead  of  charging  in  the  language  of  the 
statute,  that  the  offense  was  committed  on 
a  woman  child,  alleged  that  the  rape  was 
committed  upon  A.  B.,a  female  child,  it  was 
held  good.  Com.  v.  Bennett,  2  Va.  Cas 
235. 

39.  Description  of  female.  An  indict- 
ment against  A.  and  B.,  charging  them 
jointly  with  having  carnal  knowledge  of  C, 
forcibly  and  against  the  will  of  the  said  C, 
she  "not  being  the  daughter  or  sister  of 
them  the  said  A.  and  B.,"  is  not  a  sufficient 
negative  averment,  for  the  reason  that  not- 
withstanding such  averment,  tlie  said  C.  may 
be  the  daughter  or  sister  of  one  of  them. 
Howard  v.  State,  11  Oliio,  N.  S.  328. 

40.  Averment  of  age.  An  indictment 
for  rape  need  not  allege  tliat  the  defendant 
is  fourteen  years  of  age,  nor  that  the  person 


upon  whom  the  rape  was  committed,  was 
not  the  wife  of  the  defendant.  Com.  v. 
Scannel,  11  Cush.  547. 

41.  As  rape  may  be  committed  upon  a 
female  of  any  age,  the  averment  that  the 
injured  person  is  over  the  age  of  ten  years, 
is  unnecessary  and  need  not  be  proved.  But 
in  a  prosecution  for  the  violation  of  a  child 
under  ten,  the  age  is  material  and  must  be 
averred  and  proved.  Mobley  v.  State,  4G 
Miss.  501;  State  v.  Farmer,  4  Ired.  224; 
Bowles  V.  State,  7  Ohio,  243 ;  People  v.  Ah 
Yek,  29  Cal.  575 ;  State  v.  Storkey,  63  N. 
C.  7. 

42.  In  Massachusetts,  the  allegation  in  an 
indictment  of  having  by  force  and  against 
her  will,  ravished  and  carnally  known  a  fe- 
male, is  a  sufficient  description  of  the  of- 
fense ;  and  it  is  only  necesssry  to  allege  her 
age  when  it  is  not  alleged  that  the  act  was 
against  her  will.  Com.  v.  Sugland,  4  Gray,  7. 

43.  Charging  different  offenses.  In  Ten- 
nessee, an  indictment  was  held  bad  which 
joined  a  count  charging  a  negro  with  carnal 
knowledge  of  a  white  female  child  under  ten 
years  of  age,  with  a  count  alleging  the  com- 
mission of  a  rape  upon  a  white  female,  the 
offenses  being  different.  State  v.  Cherry, 
1  Swan,  160. 

44.  An  indictment  which  charges  a  rape, 
and  an  assault  with  intent  to  commit  a  rape, 
is  not  bad  as  charging  two  ofienses.  People 
V.  Tyler,  35  Cal.  553. 

45.  When  barred.  A  conviction  of  an 
attempt  to  commit  a  rape  will  bar  an  indict- 
ment for  rape ;  the  former  offense  being  nec- 
essarily included  in  the  latter.  State  v. 
Shepard,  7  Conn.  54. 

5.  Evidence.    §/ 

46.  Of  prosecutrix  through  interpreter. 

Where  the  female  is  of  sufficient  age,  and  of 
competent,  though  weak  understanding,  and 
can  communicate  and  receive  ideas  only  by 
signs,  she  may  be  sworn  as  a  witness,  and 
examined  through  the  medium  of  a  person 
who  can  understand  her,  who  must  be  sworn 
to  interpret  between  her  and  the  court  and 
jury.     People  v.  McGee,  1  Denio,  19. 

47.  Proof  of  force.  To  convict  of  rape, 
it  need  not  be  proved  that  the  force  em- 


522 


EAPE. 


Evidence. 


ployed  was  sucb  as  to  create  a  reasonable  ap- 
prehension of  death  on  the  part  of  the 
■woman.     Waller  v.  State,  40  Ala.  325. 

48.  The  following  instruction  on  a  trial  for 
rape  was  held  appropriate  and  correct: 
That  the  act  of  the  defendant  must  have 
been  without  the  woman's  consent,  and  there 
must  have  been  sufficient  force  used  by  him 
to  accomplish  his  purpose;  that  the  jury 
must  be  satisfied  that  there  was  no  consent 
during  any  part  of  the  act ;  and  that  the  de- 
gree of  resistance  was  frequently  an  essen- 
tial matter  for  them  to  consider  in  determin- 
ing whether  the  alleged  want  of  consent  was 
honest  and  real ;  but  that  there  was  no  rule 
of  law  requiring  a  jury  to  be  satisfied  that 
the  woman,  according  to  their  measure  of 
her  strength,  used  all  the  physical  force  in 
opposition,  of  which  she  was  capable.  Com. 
V.  McDonald,  110  Mass.  405;  s.  c.  3  Green's 
Crim.  Eeps.  267. 

49.  If  the  female  yield  from  terror,  or  the 
dread  of  greater  violence,  the  intimidation 
is  deemed  equivalent  to  force.  Where  the 
accused  threw  the  woman  several  times  upon 
the  floor,  and  then  upon  the  bed,  stripped  her 
clothes  over  her  head,  smothered  her  with 
them,  and  attempted  to  gratify  his  passion 
upon  her,  it  was  held  that  the  court  properly 
refused  to  instruct  the  jury  that  in  order  to 
convict  the  prisoner  they  must  be  satisfied 
that  when  he  had  hold  of  her,  he  intended 
to  accomplish  his  purpose  at  all  events,  and 
notwithstanding  any  resistance  on  her  part. 
Pleasant  v.  State,  8  Eng.  360. 

50.  The  following  evidence  on  a  trial  for 
rape  was  held  to  have  made  out  no  ofiense 
against  the  prisoner:  That  the  defendant, 
who  was  a  physician,  while  attending  the 
plaintift'  in  a  professional  capacity,  told  her 
that  she  had  a  disease  of  the  womb,  and  that 
a  physical  examination  was  necessary;  that 
she  submitted  with  much  reluctance;  that 
he  had  carnal  connection  with  her  on  two  oc- 
casions while  professing  to  be  making  such 
examination ;  that  she  was  a  single  woman 
thirty  years  of  age;  that  the  foregoing  oc- 
curred in  the  parlor  of  her  brother's  house 
in  the  day  time  while  the  wife  of  her  brother 
was  in  an  adjoining  room;  that  she  made  no 
outcry;    that   she   believed  that  while  the 


plaintiff  in  error  was  doing  these  acts,  he 
was  making  a  medical  examination  in  the 
usual  way;  and  that  she  made  no  revelation 
of  these  occurrences  until  after  she  had  been 
told  that  she  was  pregnant.  Walter  v.  Peo- 
ple, 50  Barb.  144. 

51.  The  question  whether  or  not  a  rape 
could  have  been  committed  without  resort 
to  other  means  than  the  exercise  of  the  or- 
dinary physical  power  of  the  prisoner,  can 
be  answered  by  the  jury  without  the  aid  of 
an  expert.  Woodin  v.  People,  1  Parker, 
464. 

52.  Proof  of  resistance.  In  New  York, 
to  convict  of  rape  under  the  statute  (2  K.  S. 
663,  §  22),  it  must  be  proved  that  there  was 
the  utmost  reluctance  and  resistance  on  the 
part  of  the  prosecutrix.  People  v.  Morrison, 
1  Parker,  625. 

53.  On  a  trial  for  rape,  e\ndence  that  the 
prosecutrix  at  the  time  of  the  outrage  was  in 
feeble  health,  is  admissible  on  the  question 
of  her  ability  to  make  resistance,  and  also 
the  muscular  power  of  her  assailant.  State 
V.  Knapp,  45  New  Hamp.  148. 

54.  The  force  necessary  to  constitute  rape, 
and  the  resistance  required,  must  depend 
upon  the  mental  and  physical  strength  of 
the  parties,  and  the  circumstances  surround- 
ing them.  When  the  prosecution  has  shown 
the  idiocy  of  the  prosecutrix,  and  force  on 
the  part  of  the  prisoner,  and  there  is  noth- 
ing to  show  consent  on  her  part,  the  offense 
will  be  deemed  to  have  been  committed 
against  her  will.  State  v.  Tarr,  28  Iowa, 
397,  Cole,  Ch.  J.,  dissenting. 

55.  Proof  of  penetration.  In  Wiscon- 
sin, on  the  trial  of  an  indictment  under  the 
statute  (R.  S.  ch.  164,  §  40),  for  unlawfully 
knowing  and  abusing  a  female  child  under 
ten  years  of  age,  penetration  may  be  proved 
from  circumstances.  Brauer  v.  State,  25 
Wis.  413. 

56.  Guilty  intent.  On  a  trial  for  rape, 
solicitations  by  the  defendant  more  than  six 
months  previous  to  the  act  charged,  are  ad- 
missible in  evidence,  as  showing  a  lustful  in- 
tent.    State  V.  Knapp,  supra. 

57.  Notwithstanding  force  is  used,  yet  if 
the  assailant  leave  off  upon  resistance  being 
made  by  the  woman,  and  not  because  of  au 


EAPE. 


523 


Evidence. 


interruption,  it  cannot  be  said  that  his  in- 
tention was  to  commit  rape.  Pleasant  v. 
State,  8  Eng.  360. 

58.  Age  of  female.  Where  on  a  trial  for 
carnally  knowing  and  abusing  a  female 
child,  the  exact  age  of  the  child  was  not 
known,  it  was  held  proper  to  take  the 
opinion  of  medical  experts  as  to  her  age. 
State  V.  Smith,  Phil.  N.  C.  302. 

59.  Place  of  transaction.  On  the  trial 
of  an  indictment  for  rape,  a  plan  of  the  in- 
terior of  the  house,  drawn  by  the  district 
attorney  from  information  derived  from  a 
person  conversant  with  the  house,  and  au- 
thenticated by  the  prosecutrix  wlio  lived  in 
the  house,  is  admissible  to  enable  her  to 
describe  the  localities.  State  v.  Jerome,  83 
Cona  265. 

60.  The  place  where  a  rape  was  alleged  to 
have  been  committed,  having  been  changed 
by  an  agent  of  the  prosecution,  immediately 
before  the  place  was  viewed  by  the  jury,  it 
was  held  that  the  burden  was  upon  the 
State  to  satisfy  the  court  that  the  defendant 
was  not  prejudiced  by  the  change.  State  v. 
Knapp,  45  New  Hamp.  148. 

61.  Complaint  of  female.  On  a  trial  for 
rape,  the  request  of  the  female  to  the  wit- 
ness, to  go  before  a  magistrate  and  report 
the  offense,  is  competent  evidence  to  prove 
complaint  made.  Smith  v.  State,  47  Ala. 
540. 

62.  The  fact  that  a  female  complaining 
that  a  rape  was  committed  upon  her,  did 
not  make  known  the  outrage  until  a  long 
time  after  its  alleged  occurrence,  does  not 
raise  a  presumption  of  law  that  the  charge 
is  false,  but  an  inference  of  fact  to  be  passed 
upon  by  the  jurj'.  State  v.  Peter,  8  Jones, 
19.  Mere  lapse  of  time  cannot  therefore  be 
made  the  test  of  the  admissibility  of  evidence 
on  this  point.     State  v.  Niles,  47  Vt.  82. 

63.  On  a  trial  for  rape,  it  was  proved  that 
the  prosecutrix  arrived  in  the  city  of  New 
York  an  entire  stranger,  and  that  having 
lost  her  baggage,  she  was  inveigled  into  a 
basement  under  the  promise  of  recovering  it, 
and  there  ravished  ;  that  when  she  regained 
the  street  she  met  a  woman,  who  asked  her 
what  was  the  matter,  and  a  policeman  who 
took  her  to  the  station  house,  to  neither  of 


whom  she  disclosed  what  had  occurred ;  but 
that  shortly  after  arriving  at  the  station 
house  she  stated  the  facts  to  the  police  cap- 
tain, and  the  accused  was  arrested.  Held 
not  error  in  the  court  to  refuse  to  charge 
that  the  disclosure  was  not  sufficiently 
prompt.     Higgins  v.  People,  58  N.  Y.  877. 

64.  On  the  trial  of  an  indictment  for  rape, 
the  prosecutrix,  who  was  the  only  witness, 
testified  that  the  offense  was  committed 
about  nine  o'clock  in  the  morning,  near  a 
road  which  was  being  continually  traveled  ; 
that  the  wife  and  mother-in-law  of  the  de- 
fendant were  in  sight;  that  the  prosecutrix 
did  not  make  an  outcry ;  that  she  got  up,. 
finished  getting  wood,  and  went  to  washing 
near  the  defendant's  house ;  that  she  told 
no  one  until  four  days  afterward,  when  she 
informed  her  sister-in-law;  and  that  her 
father  was  not  told  until  after  she  discov- 
ered she  was  pregnant.  Held  that  there 
was  not  sufficient  evidence  to  sustain  a  con- 
viction.    Crockett  v.  State,  49  Ga.  185. 

65.  Whether  proof  of  a  complaint  made 
more  than  three  weeks  after  the  alleged  out- 
rage, especially  when  forced  from  the  prose- 
cutrix by  her  mother,  after  the  daughter 
had  once  declared  that  her  injury  was  due 
to  a  fall,  should  have  been  received — query. 
Baccio  V.  People,  41  N.  Y.  265. 

66.  Particulars  of  complaint  of  female, 
not  admissible.  The  fact  that  the  woman 
made  complaint  soon  after  the  offense  was 
committed,  is  admissible  in  evidence;  but 
not  the  particulars  of  her  complaint,  and  she 
can  only  be  permitted  to  name  the  prisoner 
as  the  person  who  committed  the  injury,  for 
the  purpose  of  his  arrest.  Stephen  v.  State, 
11  Ga.  225. 

67.  The  rule  is,  that  it  is  competent  to- 
prove  that  the  person  upon  whom  a  rape  is 
alleged  to  have  been  committed,  made  a 
complaint,  without  giving  the  particulars, 
and  that  an  individual,  without  naming 
him,  was  charged  with  its  commission. 
State  V.  Niles,  47  Vt.  82 ;  Baccio  v.  People, 
sxtpra;  Lacy  v.  State,  45  Ala.  80 ;  State  v. 
Richards,  33  Iowa,  420 ;  State  v.  Shettle- 
worth,  18  Minn.  208. 

68.  It  is  usual  to  ask  the  prosecutrix  on 
her  direct  examination,  whether  she  made 


,524 


EAPE. 


Evidence. 


complaint,  and  to  receive  in  answer  simply 
yes  or  no.  Such  statement  is  only  corrobo- 
rative of  her  testimony,  and  not  evidence 
upon  which  the  jury  can  predicate  a  verdict 
of  guilty ;  and  when  she  is  not  a  witness  it 
Is  inadmissible.  Thompson  v.  State,  38  Ind. 
39. 

■"  "B9.  Reasons  for  delay  in  making  com- 
plaint. On  a  trial  for  rape  it  is  proper  to 
show  the  reasons  for  delay  on  the  part  of 
the  i^rosecutrix,  in  making  complaint  ; 
whether  caused  by  the  threats  of  the  pris- 
oner, inability  by  reason  of  the  violence, 
want  of  opportunity,  or  the  fear  of  injury 
hj  the  communication  to  the  only  persons 
at  hand.  State  v.  Knapp,  45  New  Hamp. 
148. 

~^0.  On  the  trial  of  an  indictment  for  rape, 
evidence  as  to  the  appearance  of  the  prose- 
cutrix nearly  two  weeks  after  the  alleged 
outrage,  and  that  she  seemed  "  to  be  down 
hearted  and  gloomy,  as  though  there  was 
something  she  wanted  to  tell,  but  dare  not," 
may  be  admissible  in  connection  with  other 
facts  to  excuse  her  delay  in  making  com- 
plaint; and  where  the  bill  of  exceptions 
does  not  purport  to  state  all  the  testimony, 
it  will  be  presumed  that  there  was  testimony 
which  rendered  such  evidence  admissible. 
State  V.  Shettle worth,  siqrra. 

71.  Reason  of  complaint.  Where  on  a 
trial  for  rape,  a  witness  testified  that  the 
prosecutrix  made  complaint  soon  after  the 
offense  was  alleged  to  have  been  committed, 
it  was  held  error  to  exclude  on  his  cross- 
examination  testimony  tending  to  show  that 
between  the  time  the  offense  was  alleged  to 
have  been  committed  and  the  time  of  the 
complaint,  the  prosecutrix  had  been  told 
that  the  act  of  sexual  intercourse,  consti- 
tuting the  alleged  crime,  had  been  seen  by 
other  persons.  McFarland  v.  State,  24  Ohio, 
K  S.  329. 

72.  Admissions  acd  declarations  of 
prosecutrix.  On  a  trial  for  rape,  mere 
admissions  of  the  prosecutrix,  which  are 
not  part  of  the  res  gestae^  are  hearsay  and 
not  competent  evidence  to  prove  the  fact  of 
illicit  intercourse  by  her  with  the  defend- 
ant or  others.  State  v.  Shettleworth,  18 
Minn,  208. 


73.  Upon  the  trial  of  an  indictment  for 
rape,  the  declarations  of  the  prosecutrix  im- 
mediately after  the  alleged  outrage,  are  not 
admissible  to  prove  the  offense;  and  it  is 
the  same,  though  it  appear  that  the  female 
is  incompetent  to  testify  on  account  of  im- 
mature age,  idiocy,  or  other  mental  defect. 
People  V.  McGee,  1  Denio,  19. 

74.  The  declarations  of  the  prosecuting 
witness  made  immediately  or  soon  after  the 
commission  of  an  alleged  rape,  are  admissi- 
ble in  evidence,  not  as  evidence  of  the  guilt 
of  the  defendant,  but  to  remove  from  the 
testimony  of  the  prosecuting  witness,  siis- 
picion  that  might  otherwise  rest  upon  it. 
Laughlin  v.  State,  18  Ohio,  99;  Johnson  v. 
State,  17  lb.  593 ;  McCombs  v.  State,  8  Ohio, 
K  S.  643 ;  Burt  v.  State,  23  lb.  394 ;  s.  c.  2 
Green's  Crim.  Reps.  543. 

75.  Where  on  a  trial  for  rape,  the  guilt  of 
the  accused  rests  on  the  oath  of  the  prose- 
cutrix, the  testimony  of  a  witness  that  she 
showed  witness  a  garment  with  blood  and 
mud  on  it,  which  she  said  was  worn  by  her 
at  the  time  of  the  rape  (the  witness  not 
knowing  whether  or  not  the  garment  was 
worn  as  stated),  is  only  admissible  as  a  part 
of  the  complaint.  Leoni  v.  State,  44  Ala. 
110. 

76.  Declarations  of  husband  of  prose- 
ecutrix.  Where  on  a  trial  for  rape,  it  ap- 
peared that  the  husband  of  the  woman  was 
present  at  the  outrage,  and  also  the  next 
morning  when  she  related  to  a  third  per- 
son what  had  occurred,  it  was  held  com- 
petent to  prove  by  the  husband  that  he  told 
such  third  person  M'bat  had  happened,  with- 
out giving  in  evidence  the  details  of  the 
conversation.  Conkey  v.  People,  5  Parker, 
31  ;  affi'd  1  N.  Y.  CtAi^p.  Decis.  418. 

77.  Where  on  a  trial  for  rape,  the  female 
is  examined  as  a  witness,  the  acts  and  decla- 
rations of  her  husband  are  not  admissible  in 
evidence  to  discredit  her.  State  v.  Jeffer- 
son, 6  Ired.  305  ;  McCombs  v.  State,  8  Ohio, 
K  S.  643. 

78.  Presumptions.  The  facts  that  the 
prosecutrix  immediately  made  complaint, 
her  appearance,  and  whether  she  bore  u  pon 
her  person  marks  of  violence,  are  important; 
and  any  evidence  showing  that  she  feared 


EAPE. 


525 


Evidence. 


danger  to  life  or  limb  if  she  resisted,  is  ad- 
missible, although  it  show  a  distinct  outrage 
of  a  similar  character  previously  committed. 
Strang  v.  People,  24  Mich.  1. 

79.  The  fact  that  an  alleged  rape  was 
not  communicated  to  any  one  for  a  long 
time,  affords  a  strong  presumption  that  the 
charge  is  false.  Higgius  v.  People,  8  N.  Y. 
Supm.  N.  S.  307 ;  58^N.  Y.  377. 

80.  On  a  trial  for  rape,  the  relationship 
between  the  prosecutrix  and  defendant  is 
material,  as  bearing  upon  the  reasonableness 
of  the  woman's  story,  and  upon  the  proba- 
bility of  the  resistance  having  been  all  that 
was  to  have  been  expected.  Strang  v.  Peo- 
ple, supra. 

81.  In  Mississippi,  on  the  trial  of  a  guard- 
ian for  rape  upon  his  ward,  it  was  held 
that  the  entire  record  of  his  proceedings  as 
guardian,  in  the  probate  court,  including  his 
accounts  and  settlements  and  appropriations 
of  the  ward's  property,  was  admissible ;  and 
that  if  any  portion  of  the  record  was  irrele- 
vant, objection  must  be  made  to  that  part, 
and  not  to  the  whole.  Sharkey,  0.  J.,  dis- 
senting, held  that  such  evidence  was  inad- 
missible as  calculated  to  prejudice  the  jury 
against  the  prisoner,  by  showing  that  he 
had  squandered  the  property  of  his  ward. 
Tenney  v.  State,  8  Smed.  &  Marsh.  104, 

82.  On  a  trial  for  rape,  the  conduct  of  the 
prisoner  immediately  after  the  perpetration 
of  the  offense,  is  admissible  in  evidence  to 
show  that  his  connection  with  the  woman 
was  effected  by  violence  and  threats  calcu- 
lated to  alarm  and  terrify  her.  Conkey  v. 
People,  5  Parker,  31 ;  affi'd  1  N.  Y.  Ct.  of 
Appeals  Decis.  418;  Strang  v.  People, 
supra. 

83.  A  female  under  the  age  of  ten  years 
is  presumed  incapable  of  consenting  to  an 
act  of  carnal  knowledge,  or  an  assault  with 
intent  to  commit  the  act.  The  evidence  to 
rebut  this  presumption  need  not  show  her 
ability  beyond  a  reasonable  doubt.  A  pre- 
ponderance of  evidence  is  sufficient.  O'Meara 
V.  State,  17  Oliio,  N.  S.  515;  Moore  v.  State, 
lb.  521.  In  Michigan,  it  has  been  held  that 
in  case  of  the  carnal  knowledge  of  a  female 
under  ton  years  of  age,  no  evidence  will  be 


received  to  repel  the  presumption  of  force 
and  want  of  consent.  People  v.  McDonald, 
9  Mich.  150. 

84.  On  the  trial  of  an  indictment  for  rape 
alleged  to  have  been  committed  by  a  negro 
on  a  white  woman,  it  was  held  error  in  the 
court  to  refuse  to  charge  that  the  jury  should 
acquit  the  prisoner  unless  the  prosecution 
proved  to  their  satisfaction  that  the  person 
upon  whom  the  assault  was  committed  was 
a  white  woman,  and  that  the  fact  that  the 
jury  had  seen  her,  or  been  acquainted  with 
her,  or  heard  her  testify,  would  not  dispense 
with  such  proof.  But  in  the  same  case,  it 
was  held  that  the  jury  might  infer  that  the 
prosecutrix  was  a  white  woman,  from  her 
appearance  on  the  stand  and  from  her  refer- 
ence during  her  examination  as  a  witness,  to 
her  domestic  relations.  Charles  v.  State,  (> 
Eng.  389. 

85.  On  the  trial  of  a  negro  for  rape,  the 
prisoner's  counsel  asked  the  court  to  charge 
the  jury  that  in  order  to  convict,  the  prose- 
cution must  prove  that  the  prisoner  was  a 
negro,  and  that  though  he  was  black,  their 
seeing  him  was  no  proof  that  he  was  a 
negro.  Held  that  as  the  instruction  asked 
for  assumed  that  the  prisoner  was  black,  the 
presumption  that  he  was  a  negro  would  pre- 
vail, and  that  the  instruction  was  properly 
refused.     Ibid. 

86.  Bad  character  of  prosecutrix.  On 
a  trial  for  rape,  the  character  of  the  prose- 
cutrix for  chastity  cannot  be  impeached  by 
evidence  of  particular  acta  of  unchastity, 
but  only  by  general  evidence  in  that  respect. 
Nor  can  evidence  be  given  as  to  jjrevious 
sexual  intercourse  with  persons  other  than 
the  accused.  McCombs  v.  State,  8  Ohio, 
K  S.  643;  McDermott  v.  State,  13  lb.  332; 
People  V.  Jackson,  3  Parker,  391,  overruling- 
People  V.  Abbott,  19  Wend.  192;  State  v. 
Knapp,  45  New  Hamp.  148;  Com.  v.  Regan, 
105  Mass.  593. 

87.  But  where  on  a  trial  for  rape  the 
prosecutrix  testified  that  she  became  in- 
sensible and  did  not  know  whether  the 
accused  consummated  the  act  or  not,  and 
the  prosecution  introduced  a  medical  wit- 
ness who  swore  that  he  examined  her  three 
weeks  after  the  alleged  outrage,  and  that 


52C 


RAPE. 


Evidence. 


she  then  bore  the  marks  of  having  had 
previous  carnal  intercourse  with  some  man, 
it  was  held  competent  for  the  defense  in  re- 
buttal to  prove  either  a  previous  voluntary 
connection  with  the  accused  or  particular 
instances  of  unchastity  with  any  other  man. 
Shirwin  v.  People,  69  111.  55. 

88.  On  a  trial  for  rape,  the  accused  may 
introduce  evidence  to  show  that  the  com- 
plainant was  in  the  habit  of  receiving  men 
at  her  house  for  the  purpose  of  promiscuous 
intercourse  with  them.  Whether  evidence 
of  particular  acts  of  unchastity  by  her  is 
competent — query.  Woods  v.  People,  55 
N.  Y.  515;  1  N.  Y.  Supm.  N.  S.  610;  s.  c.  1 
Green's  Grim.  Reps.  659.  See  People  v. 
Abbott,  supra ;  Campbell  v.  State,  3  Kelly, 
417. 

89.  In  Michigan,  on  a  trial  for  rape,  it  is 
competent  to  prove  criminal  intercourse  be- 
tween the  prosecutrix  and  a  person  other 
than  the  defendant  for  purposes  of  impeach- 
ment, but  not  particular  facts  from  which 
such  intercourse  may  be  inferred.  Strang 
V.  People,  24  Mich.  1.  In  Galifornia,  evi- 
dence of  particular  acts  of  lewdness  on  the 
part  of  the  prosecutrix  is  admissible  for  the 
purpose  of  disproving  the  allegation  of 
force.     People  v.  Benson,  6  Gal.  221. 

90.  In  Alabama,  where  the  parts  of  a  child 
upon  whom  it  was  charged  the  piisoner 
attempted  to  commit  a  rape  were  shown  to 
be  bruised  and  infected  with  the  venereal 
disease,  proof  of  sexual  intercourse  between 
her  and  other  persons  before  and  near  the 
time  of  the  commission  of  the  alleged 
offense  was  held  competent  as  tending  to 
weaken  the  force  of  these  circumstances. 
Nugent  V.  State,  18  Ala.  521. 

91.  In  Vermont,  it  has  been  held  that  on 
a  trial  for  rape  or  incest,  the  prosecutrix 
may  be  asked  on  her  cross-examination 
whether  she  did  not  have  sexual  intercourse 
with  other  men  both  before  and  after  the 
alleged  oflfense.  State  v.  Johnson,  28  Vt. 
512,  Benui'tt,  J.,  dissenting;  approved  in 
State  V.  Reed,  39  Vt.  417. 

92.  In  North  Carolina,  it  was  held  on  a 
trial  for  rape  that  the  defendant  might 
prove  that  the  woman  had  been  his  concu- 
bine, or  that  he  had  been  allowed  to  take 


indecent  liberties  with  her,  but  not  that  she 
had  had  criminal  intercourse  with  one  or 
more  particular  individuals.  State  v.  Jeffer- 
son, 6  Ired.  305. 

93.  In  the  same  State,  it  was  held  proper 
on  a  trial  for  rape  to  ask  the  prosecutrix  if 
she  had  not  been  delivered  of  a  bastard 
child,  and  if  she  had  not  had  sexual  inter- 
course with  other  men,  and  the  error  of  ex- 
cluding such  testimony  is  not  cured  by  per- 
mitting the  prisoner  to  show  the  same  by 
other  witnesses.  State  v.  Murray,  63  N.  C. 
31.  See  Higgins  v.  People,  8  N.  Y.  Supm. 
N.  S.  307;  58  N.  Y.  377. 

94.  On  a  trial  for  rape,  the  defendant 
sought  to  lay  the  foundation  for  an  infer- 
ence of  voluntary  intercourse  between  him 
and  the  prosecutrix  while  she  lived  at  the 
house  of  his  father,  by  inquiring  of  the  latter 
as  to  her  habits  of  following  the  defendant 
around  the  house.  The  judge  in  ruling  out 
the  evidence  said :  "  I  do  not  think  it  com- 
petent, and  even  if  she  did  follow  him,  it 
would  not  show  that  she  wanted  a  rape 
committed  upon  her."  Held  that  the  evi- 
dence was  competent  and  the  remark  of  the 
judge  improi^er.  Shirwin  v.  People,  69  111. 
55. 

95.  The  magistrate  before  whom  the  com- 
plaint was  made  is  not  a  competent  witness 
to  prove  what  the  prosecutrix  swore  to  before 
him  as  to  her  having  had  previous  inter- 
course with  other  men,  unless  the  inquiry  is 
made  for  the  purpose  of  impeaching  her 
testimony.  People  v.  Abbott,  19  Wend. 
192. 

96.  Where  on  a  trial  for  rape,  a  witness 
swore  that  he  had  heard  three  or  four  per- 
sons who  lived  in  an  adjoining  town  speak 
of  the  character  of  the  prosecutrix  for  chas- 
tity, but  did  not  know  what  the  people  in 
her  neighborhood  said,  it  was  held  that  the 
evidence  was  properly  rejected.  Conkey  v. 
People,  5  Parker,  31 ;  affi'd  1  N.  Y.  Ct.  of 
App.  Decis.  418. 

97.  On  a  trial  for  rape,  it  was  held  com- 
petent for  the  defendant  to  prove,  as  tending 
to  show  the  general  immoral  character  of 
the  prosecutrix,  that  she  was  a  woman  of 
drunken  and  dissipated  habits,  sleeping 
generally  in    the    hallway    of   a    tenement 


RAPE. 


527 


Evidence. 


house,  and  accustomed  to  go  in  tbere  at  two 
or  three  o'clock  in  the  morning.  Brennan 
V.  People,  14  N.  Y.  Supm.  N.  S.  171 ;  citing 
Woods  V.  People,  55  N.  Y.  171.      ■ 

98.  On  a  trial  for  rape,  the  defendant,  for 
the  purpose  of  impeaching  the  character  of 
the  prosecutrix,  asked  her  on  cross-examina- 
tion whether  she  did  not  go  with  him  to  a 
liquor  shop  and  drink,  and  whether  she  did 
not  go  to  a  lumber  yard  with  him  and  there 
solicit  him  to  have  carnal  intercourse  with 
her.  The  judge  ruled  that  the  cross-exam- 
ination in  this  respect  was  upon  matters 
immaterial  to  the  issue,  and  that  there  could 
be  no  contradiction  of  the  replies.  Held 
error.     Brennan  v.  People,  supra. 

99.  It  is  not  a  ground  of  exception  that 
the  court,  on  a  trial  for  rape,  refused  to 
permit  the  prosecutrix  to  be  asked,  on  cross- 
examination,  whether  she  had  been  at  some 
previous  time  a  common  seller  of  intoxicat- 
ing liquor  in  violation  of  law.  Com.  v.  Mc- 
Donald, 110  Mass.  405;  s.  c.  2  Green's  Crim. 
Reps.  267. 

100.  Good  character  of  prosecutrix.  On 
a  trial  for  rape,  proof  of  the  good  character 
of  the  prosecutrix  is  admissible  to  sustain 
her  credibility.  Tenney  v.  State,  8  Smed.  & 
Marsh.  104. 

101.  On  a  trial  for  rape,  it  is  not  compe- 
tent for  the  prosecution  to  rebut  proof  of  the 
general  reputation  of  the  prosecutrix,  by 
showing  that  some  of  the  reports  prejudicial 
to  her  were  false ;  for  the  reason  that  such 
testimony  would  raise  collateral  issues,  and 
would  not  show  that  such  reports  were  not 
in  general  circulation,  or  that  they  were  not 
generally  accredited.  McDermott  v.  State, 
13  Ohio,  N.  S.  332. 

102.  On  the  trial  of  an  indictment  for 
rape  charged  to  have  been  committed  on 
board  a  vessel,  the  defendant  attempted  to 
discredit  the  testimony  of  the  complainant 
by  showing  that  her  story  was  improbable 
in  itself,  inconsistent  with  her  conduct  on 
board  the  vessel,  and  contradicted  by  state- 
ments made  by  her  out  of  court.  Ueld  that 
this  was  not  an  attack  upon  the  complain- 
ant's general  character,  and  therefore  that 
evidence  of  her  good  character  was  not  ad- 


missible. People  V.  Hulse,  3  Hill,  309,  Cowen, 
J.,  dissenting. 

103.  Character  of  defendant.  Where, 
on  a  trial  for  rape,  the  defendant  introduced 
witnesses  as  to  his  reputation  for  morality 
as  well  as  chastity,  it  was  held  proper, 
on  cross-examination,  to  inquire  as  to  the 
defendant's  reputation  for  selling  liquor 
without  license.  State  v.  Knapp,  48  New 
Hamp.  145. 

104.  Identity  of  defendant.  Where,  on 
a  trial  for  rape,  the  prosecution  seeks  to  show 
the  identity  of  the  prisoner  with  the  person 
who  committed  the  offense,  by  evidence  of  a 
fresh  pursuit  from  a  description  of  the  of- 
fender by  the  prosecutrix,  and  of  inquiries 
made  by  the  pursuer  for  him  by  describing  his 
dress,  the  prisoner  may  show  what  inquiries 
were  made,  and  that  the  dress  described  was 
different  from  the  one  worn  by  him.  Com. 
V.  Reardon,  4  Gray,  420. 

105.  Consent  of  female.  On  a  trial  for 
rape  the  defense  may  ask  the  prosecution,  on 
cross-examination,  whether  the  treatment 
complained  of  "  was  with  her  consent  or 
against  her  will."  Woodin  v.  People,  1 
Parker,  464. 

106.  In  Iowa,  the  offense  of  forcible  de- 
filement, under  the  Code  (§  2582),  lies  in 
doing  the  act  against  the  will  of  the  other 
person,  with  force,  menace,  or  duress.  .  The 
defendant  is  not  obliged  to  prove  consent; 
but  the  prosecution  must  show  that  there 
was  dissent  and  repulsion.  Pollard  v.  State, 
2  Clarke,  567. 

107.  Weight  of  evidence.  On  the  trial 
of  an  indictment  for  rape,  the  question  of 
guilt  or  innocence  is  not  to  be  measured  by 
the  character  of  the  proof,  whether  positive 
or  negative,  but  the  jury  should  be  left  to 
consider  the  whole  evidence.  Innis  v.  State, 
42  Ga.  473. 

108.  On  a  trial  for  rape,  the  prosecutrix 
testified  that  as  soon  as  practicable  after  the 
outrage  slie  told  her  husband,  her  mother, 
and  others ;  and  she  was  corroborated  by  the 
testimony  of  her  husband  as  to  the  disclos- 
ures made  by  her  to  him.  Held  that  the 
court  properly  charged  the  jury  that  it  was 
not  necessary  for  the  prosecution  to  call  the 
other  persons  referred  to  as  witnesses,  if  the 


528 


EAPE. 


Evidence.        Verdict.    Assault  with  Intent  to  Commit  F^ape. 


What  Deemed. 


jury  -were  satisfied  that  the  prosecutrix  or 
her  husband  had  testified  truly  in  regard  to 
the  complaint  made  by  her.  Woodin  v. 
People,  1  Parker,  464. 

109.  On  the  trial  of  an  information  for 
carnally  knowing  and  abusing  a  female 
child  nine  years  of  age,  the  testimony  of  the 
child  need  not  be  corroborated  by  proof  of 
an  examination  of  her  person  at  the  time  of 
the  outrage,  or  by  medical  testimony.  State 
V.  Lattin,  39  Conn.  389. 

6.  Verdict. 

110.  Where  different  .grades  of  offense 
are  charged.  The  charges  in  an  indictment 
were :  1st,  rape  against  C.  and  H. ;  2d,  rape 
against  C,  and  against  H.  for  assisting  C. 
in  committing  a  rape  ;  3d,  assault  and  bat- 
tery against  C.  and  H.,with  intent  to  commit 
a  rape.  The  jury  rendered  the  foUomug 
verdict :  "  We  find  the  prisoners  at  the  bar 
guilty  of  the  offense  charged  in  the  indict- 
ment." Held  that  it  was  competent  for  the 
court  to  pass  judgment  on  the  count  charg- 
ing the  highest  grade  of  offense.  Conkey  v. 
People,  5  Parker,  31 ;  affi'd  1  N.  Y.  Ct.  of 
AjDp.  Decis.  418. 

ill.  For  lesser  offense.  Under  an  in- 
dictment for  rape,  the  prisoner  may  be 
convicted  of  an  attempt  to  commit  rape. 
Com.  V.  Cooper,  15  Mass.  187.  It  will  not, 
therefore,  vitiate  the  verdict  to  swear  the 
jury  to  try  the  prisoner  for  the  attempt,  as 
well  as  for  the  rape.  Stephen  v.  State,  11 
Ga.  225. 

112.  In  Massachusetts,  where  a  nolle 
prosequi  is  entered  on  an  indictment  for 
rape,  the  defendant  may,  under  the  statute 
(Gen.  Stats,  ch.  173,  §  16),  be  convicted  of  a 
simple  assault,  but  not  of  an  assault  not 
connected  with  the  rape  originally  charged. 
Com.  V.  Dean,  109  Mass.  349 ;  s.  c.  1  Green's 
Crim.  Reps.  195,  See  Com.  v.  Drum,  19  Pick. 
479. 

113.  Where,  on  a  trial  for  rape,  the  jury 
find  the  prisoner  guilty  of  an  assault  with 
attempt  to  commit  a  rape,  it  is  tantamount 
to  a  verdict  of  guilty  of  an  assault  with 
intent  to  commit  a  rape.  Prince  v.  State,  35 
Ala.  867. 

114.  For  different  offense.     In  Massachu- 


setts, under  the  statute  (E.  S.  ch.  137,  §  11), 
a  person  indicted  for  a  rape  upon  his  daugh- 
ter may  be  convicted  of  incest.  Com.  v. 
Goodhue,  2  Mete.  193. 

7.  Assault  with  lntent  to  commit  rape. 
{a)    What  deemed. 

115.  Must  have  been  rape  if  the  pur- 
pose had  been  accomplished.  To  sustain 
an  indictment  for  an  assault  with  intent  to 
commit  a  rape,  it  must  be  shown  that  the 
offense  would  have  been  rape,  if  the  defend- 
ant had  carried  his  intention  into  effect. 
Sullivant  v.  State,  3  Eng.  400. 

116.  Intention  to  employ  force  requisite. 
A  negro  entered  a  room  where  a  school-girl 
was  sleeping,  partly  undressed  himself,  and 
tried  to  get  on  her;  she  awoke,  screamed, 
and  he  ran  away.  Having  been  found 
guilty  of  an  assault  with  intent  to  commit 
rape,  a  new  trial  was  granted  on  the  ground 
that  it  did  not  ajopear  that  the  prisoner  in- 
tended to  accomjjlish  his  purpose  by  force. 
Charles  v.  State,  6  Eng.  389. 

117.  In  Virginia,  on  th^.  trial  of  an  indict- 
ment against  a  free  negro,  it  was  proved  that 
the  prisoner,  not  intending  to  have  carnal 
knowledge  of  the  woman  by  force  but  while 
she  was  asleep,  got  into  bed  with  her,  and 
pulled  up  her  night  dress  which  waked  her, 
but  used  no  force.  Held  not  an  attempt  to 
commit  rape  within  the  meaning  of  the 
statute.     Field's  Case.  4  Leigh,  648. 

113.  Leaving  off  on  account  of  resist- 
ance will  not  excuse.  Where  a  person 
intended  forcibly  to  know  a  woman  carnal- 
ly, and  against  her  will,  and  made  an  effort 
to  accomplish  his  purpose,  the  mere  desist- 
ing from  further  effort  on  account  of  resist- 
ance, inability  to  overcome  resistance,  or 
from  fear,  will  not  relieve  him  from  the  guilt 
of  an  assault  with  intent  to  commit  rape. 
Taylor  v.  State,  50  Ga.  79. 

119.  A  negro  in  the  night,  entered  a  room 
by  raising  a  w'indow  where  a  girl  thirteen 
or  fourteen  years  of  age  was  sleeping,  and 
got  into  l)ed  with  her.  Upon  her  making 
an  outcry  which  was  responded  to  from 
another  room  where  her  uncle  slept,  the  ne- 
gro fled  through  the  window.  Held  that 
a  conviction  for  an   assault  with  intent  to 


EAPE. 


529 


Assault  with  Intent  to  Commit  Rape. 


Who  may  Commit. 


Indictment. 


commit  a  rape  was  proper.     Sharpe  v.  State, 
48  Ga.  16. 

120.  Consent  of  female.  The  subsequent 
yielding  and  consent  of  the  womaa  to  the 
sexual  intercourse  is  not  a  legal  excuse  to 
the  consummated  offense  of  an  assault  with 
an  intent  to  commit  a  rape.  State  v.  Har- 
tigan,  33  Vt.  607. 

121.  But  where,  on  a  trial  for  an  assault 
with  intent  to  commit  a  rape,  it  appears 
that  the  woman  consented  without  being 
induced  to  do  so  by  force  or  fear,  the  accused 
cannot  be  convicted.  Hull  v.  State,  22  Wis. 
580. 

122.  There  is  no  such  crime  known  to  the 
law  of  Ohio,  as  an  assault  with  iutent  to 
carnally  know  and  abuse  a  child  under  ten 
years  of  age  with  her  consent.  O'Meara  v. 
State,  17  Ohio,  N.  S.  515. 

(5)   Who  WMy  commit. 

123.  Boy  under  fourteen.  An  infant 
under  the  age  of  fourteen,  may  be  convicted 
of  an  assault  with  intent  to  commit  rape. 
Com.  V.  Green,  2  Pick.  380.  See  ante,  sub. 
20. 

124.  Person  standing  by.  On  the  trial 
of  an  indictment  for  an  attempt  to  commit 
rape,  it  is  error  to  refuse  to  charge  the  juiy, 
that  if  the  defendant  stood  by  when  the  of- 
fense was  committed,  but  did  no  act  to  aid, 
assist,  or  abet  the  same,  he  could  not  be 
found  guilty.  People  v.  Woodward,  45  Cal. 
293. 

(c)  Indictment. 

^  125.  Description  of  female.  An  indict- 
/ment  charging  that  "A.  B.,  late  of  said 
county,  in  and  upon  C.  D.  (she  the  said  C.  D. 
then  and  there  being  a  female  child  under  the 
age  of  ten  years),  feloniously  did  make  an  as- 
sault, and  her  the  said  C.  D.  did  then  and 
there  feloniously  abuse,  in  the  attempt  car- 
nally to  know,"  is  bad  in  not  describing  with 
sufficient  certainty  the  person  upon  whom 
the  attempt  was  made.  Nugent  v.  State,  19 
Ala.  540. 

126.  Where  an  indictment  charged  that 
"A.  Hunt, in  and  upon  P.  Harvey,  did  make 
and  assault,  and  her  the  said  A.  Hunt,  then 
and  there  did  beat,  wound  and  ill  treat, 
with  an  intent  her  the  said  P.  Harvey  to 
34 


ravish,"  it  was  held  that  the  words  "  her  the 
said  A.  Hunt  then  and  there,"  might  be  re- 
jected as  surplusage.  Cora.  v.  Hunt,  4  Pick. 
252. 

127.  Must  charge  that  force  was  used. 
An  indictment  for  an  assault  with  an  intent 
to  commit  a  rape  which  for  the  words  "l)y 
force,"  substitutes  the  word  "violently  "  is 
fatally  defective.  State  v.  Blake,  39  Maine, 
322. 

128.  An  indictment  alleged  that  the  de- 
fendant did  unlawfully  and  feloniously  as- 
sault one  H.  D.,  Avith  intent  to  outrage  her 
person,  by  throwing  her  on  her  back  and 
attempting  to  have  sexual  intercourse  with 
her.  Held  that  it  did  not  charge  an  assault 
with  intent  to  commit  rape,  but  only  an  as- 
sault.    People  v.  O'Neil,  48  Cal.  257. 

129.  An  indictment  for  an  assault  with 
intent  to  commit  rape  is  good  which  alleges 
that  "  A.  B.,  with  force  and  arms,  in  and 
upon  one  J.  D.,  a  female  twenty-one  years  of 
age,  and  not  the  wife  of  the  said  A.  B.,  fe- 
loniously did  make  an  assault  with  intent 
then  and  there  to  commit  an  act  of  sexual 
intercourse  with  the  said  J.  D.,  by  force  and 
violence  against  her  will ;  "  without  charg- 
ing that  the  force  and  violence  were  against 
her  resistance.  People  v.  Brown,  47  Cal. 
447;  s.  c.  2  Green's  Crim.  Reps.  456. 

130.  In  Connecticut,  under  the  statute 
(R.  S.  tit.  6,  §  18),  providing  that  "every 
person  who  shall,  with  actual  violence,  make 
an  assault  upon  the  body  of  any  female  with 
intent  to  commit  a  rape  shall  suffer  impris- 
onment," &c.,  any  language  in  the  informa- 
tion, which  expressly,  or  by  necessary  im- 
plication, imports  and  charges  the  exertion 
of  physical  force  upon  the  female  is  suffi- 
cient.    State  V.  Wells,  31  Conn.  210. 

131.  Technical  averments.  An  indict- 
ment for  an  assault  with  intent  to  commit  a 
rape,  must  contain  the  technical  word  "  rav- 
ished," and  state  that  it  was  attempted  to 
be  done  forcibly  and  against  the  will  of  the 
female.     SuUivant  v.  State,  3  Eng.  400. 

132.  But  in  Virginia,  under  the  statute, 
an  indictment  for  an  attempt  to  commit  a 
rape  is  sufficient  which  charges  an  attempt 
"feloniously  carnally  to  know,"  omitting 
the  word  "ravish."     Christian  v.  Com.  23 


530 


EAPE. 


Assault  with  Intent  to  Commit  Rape, 


Indictment. 


Evidence. 


Gratt.    954,    Anderson   and  Moncure,    JJ., 
contra  ;  s.  c.  3  Green's  Crim.  Reps.  659. 

133.  An  indictment  for  an  assault  with 
intent  to  commit  a  rape,  which  alleges  that 
tlie  defendant  made  the  assault  with  intent 
feloniously  to  ravish,  is  bad.  It  ought  to 
charge  that  the  assault  was  made  feloniously. 
Williams  v.  State,  8  Humph.  585. 

134.  An  indictment  for  an  assault  on  a 
child  under  ten  years  of  age  "with  intent 
feloniously  to  ravish  and  carnally  know," 
was  held  good ;  as  the  words  "to  ravish," 
might  be  regarded  as  surplusage.  McComas 
v.  State,  11  Mo.  116. 

135.  An  indictment  for  an  assault  and 
battery  with  intent  to  commit  a  rape,  which 
omits  the  word  "unlawfully"  or  "felo- 
niously," although  bad  as  to  the  intent 
charged,  may  be  sustained  as  to  the  assault 
and  battery.     McGuire  v.  State,  50  Ind.  284. 

136.  Unnecessary  averments.  In  Ten- 
nessee, it  has  been  held  that  an  indictment 
for  an  assault  with  intent  to  commit  a  rape, 
need  not  allege  that  the  assault  was  felo- 
niously committed.  Jones  v.  State,  3  Heisk. 
445. 

137.  An  indictment  for  abusing  a  female 
child,  which  alleges  that  she  was  under  ten 
years  of  age,  is  sufficient  without  the  words 
"  she  then  and  there  being"  after  the  first 
mention  of  the  name.  Com.  v.  Sullivan,  6 
Gray,  477. 

138.  In  an  indictment  for  an  assault  with 
intent  to  commit  a  rape,  there  need  not  be 
an  averment  as  to  the  age  of  the  female, 
although  she  is  under  ten  years  of  age. 
O'Meara  v.  State,  17  Ohio,  N.  S.  515. 

((7)  Evidence. 

139.  Prosecutrix  need  not  be  a  witness. 
An  assault  and  battery  with  intent  to  com- 
mit a  rape,  may  be  proved  without  the 
testimony  of  the  injured  party.  People  v. 
Bates,  2  Parker,  27. 

140.  Proof  of  violence.  Where  there  is 
evidence  of  no  act  of  violence,  struggle,  or 
outcry,  and  of  no  attempt  to  restrain  or 
confine  the  person  of  the  prosecutrix,  the 
prisoner  cannot  be  convicted  of  an  assault 
with  intent  to  commit  a  rajie.  Com.  v. 
Merrill,  14  Gray,  415. 


141.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  commit  a  rape,  it  was 
held  that  evidence  that  the  defendant,  who 
was  a  colored  man,  ran  after  a  white  woman 
who  was  traversing  a  road  through  a  lonely 
wood,  and  called  out  to  her  several  times  to 
stop,  the  distance  between  them  being  about 
seventy  yards,  was  sufficient  to  sustain  a 
conviction.     State  v.  Neely,  74  N.  C.  425. 

142.  Proof  of  resistance.  Upon  a  trial 
for  an  assault  with  intent  to  commit  a  rape, 
on  the  question  of  resistance,  it  is  proper 
for  the  jury  to  consider  the  age,  strength, 
and  capacity  of  the  person  ujjou  whom  the 
ofi^ense  is  alleged  to  have  been  committed. 
People  V.  Lynch,  29  Mich.  274. 

143.  Where  the  defendant  was  convicted 
of  an  assault  with  the  intent  to  commit  a 
rape  on  a  child  imder  ten  years  of  age,  upon 
the  uncorroborated  testimony  of  the  child, 
who  not  only  made  no  outcry,  but  im- 
mediately went  about  her  daily  duties,  as 
though  nothing  unusual  had  occurred,  and 
neglected  for  two  years  to  disclose  the  facts 
even  to  her  mother,  and  it  appeared  that 
no  flow  of  blood  followed  the  alleged  out- 
rage, and  that  the  child  did  not  sufier  or 
complain  of  any  pain,  it  was  held  that  there 
must  be  a  new  trial.  People  v.  Hamilton, 
46  Cal.  540;  s.  c.  2  Green's  Crim.  Reps. 
432. 

144.  Although  where  there  was  consent 
on  the  part  of  the  prosecutrix,  the  prisoner 
cannot  be  convicted  of  an  assault  with  intent 
to  commit  a  rape,  yet  where  it  is  clearly 
shown  that  the  assault  was  made  with  the 
intent  to  commit  the  oifense,  the  jury  may 
convict,  though  not  satisfied  that  there  was 
such  want  of  consent  as  to  constitute  the 
higher  crime.  The  absence  of  outcries  and 
complaints  is  not  conclusive;  and  the  mere 
submission  of  a  girl  fifteen  years  of  age,  in 
the  power  of  a  strong  man,  does  not;  neces- 
sarily imply  consent.  State  v.  Cross,  12 
Iowa,  66.  See  State  v.  Tomlinson,  11  lb. 
401. 

145.  Complaint  of  female.  On  the  trial 
of  an  indictment  for  an  attempt  to  commit 
a  rape,  a  complaint  made  soon  after  the 
assault,  by  the  woman  assaulted,  is  admis- 
sible  in   evidence,  but   not   the  particulars 


KAPE. 


531 


Assault  with  Intent  to  Comniit  Rape. 


Evidence. 


of  the  transaction,  as  detailed  at  that  time, 
by  the  prosecutrix.  State  v.  Ivins,  36  N.  J. 
233;  s.  c.  2  Green's  Crim.  Reps.  591. 

146.  Declarations  of  female.  On  the 
trial  of  an  indictment  for  an  assault  with 
intent  to  commit  a  rape,  the  declarations  of 
the  prosecutrix  are  not  admissible  either  for 
or  against  the  defendant  as  independent 
evidence.  To  render  them  competent,  the 
foundation  must  be  laid  by  tirst  calling  her 
attention  to  them  when  she  is  examined  as 
a  witness,  and  if  she  denies  making  them, 
they  can  then  be  proved  to  contradict  her. 
State  V.  Emeigh,  18  Iowa,  123. 
(147.  On  the  trial  of  an  indictment  for  an 
assault  upon  a  girl  six  years  of  age,  with 
intent  to  commit  a  rape,  the  child  being 
interrogated  as  a  witness,  and  not  being 
able  to  give  a  connected  history  of  the  affair, 
the  mother  of  the  child  was  called  and 
asked,  "  Did  the  child  tell  you  how  this 
occurred  at  the  time  ?  "  which  she  answered 
in  the  affirmative.  Held  error.  People  v. 
Graham,  21  Gal.  261. 

148.  On  the  trial  of  an  indictment  for  as- 
sault and  battery,  with  intent  to  commit  a 
rape,  the  injured  party,  who  was  about  six 
years  of  age,  not  being  allowed  to  testify 
for  want  of  sufficient  understanding,  the 
court  admitted  in  evidence  her  declarations 
made  not  in  the  presence  of  the  defendant, 
elicited  by  questions  put  to  her  by  her 
parents  soon  after  the  transaction.  Held 
error.     Weldon  v.  State,  32  Ind.  81. 

149.  Appearance  of  female.     On  a  trial 
i  for  an  assault  with  intent  to  commit  a  rape, 

a  witness  may  testify  as  to  the  appearance  of 
the  woman  immediately  after  the  outrage, 
but  not  as  to  what  she  said,  except  in  con- 
firmation of  her  testimony,  after  an  attempt 
to  impeach  it.  Pleasant  v.  State,  15  Ark. 
624. 

150.  Guilty  intent.  On  the  trial  of  an 
indictment  for  an  assault  with  intent  to  com- 
mit a  rape,  evidence  of  j^revious  acts  of  the 
defendant  is  admissible  on  the  question  of 
guilty  intent.  AVilliams  v.  State,  8  Humph. 
585. 

151.  Where,  on  a  trial  for  an  assault  with 
intent  to  commit  a  rape,  the  jury  were 
charged  that  if  thev  believed  from  the  evi- 


dence that  the  defendant  attempted  to  com- 
mit a  rape  they  ought  to  find  a  verdict  of 
guilty,  it  was  held  error.  Preisker  v.  People, 
47  111.  382. 

152.  Character  of  prosecutrix.  On  a 
trial  for  an  assault  with  intent  to  commit  a 
rape,  the  prosecutrix  cannot  be  compelled  to 
answer  as  to  her  criminal  connection  with 
other  men,  nor  can  particular  acts  of  un- 
chastity  be  proved,  though  general  evidence  i 
may  be  given  of  her  reputation  in  that  re- 
spect.    Pleasant  v.  State,  15  Ark.  624. 

153.  Corroboration  of  charge.  On  the 
trial  of  an  indictment  for  an  attempt  to 
commit  a  rape,  before  any  effort  had  been 
made  to  discredit  the  testimony  of  the  pros- 
ecutrix, otherwise  than  by  her  cross-exami- 
nation, the  district  attorney  introduced  a 
witness  to  prove  that  she  had  previously 
told  to  the  witness  the  same  story  which  she 
had  now  sworn  to  in  court.  Held  admissible 
to  show  constancy  in  the  declarations  of  the 
prosecutrix,  and  thus  to  confinn  her  testi- 
mony.    State  V.  De  Wolf,  8  Conn.  93. 

154.  After  it  had  been  proved  by  the  de- 
fense, on  a  trial  for  an  attempt  to  commit  a 
rape,  that  the  prosecutrix,  who  was  deaf 
and  dumb,  had  given  different  accounts  of 
the  transaction,  and  after  she  had  sworn 
that  she  concealed  the  transaction  more  than 
a  year,  giving  as  a  reason  for  so  doing  the 
threats  and  influence  of  the  prisoner,  and 
fear  of  him,  the  prosecution  proposed  to 
show,  by  an  instructor  of  the  deaf  and 
dumb,  who  had  been  the  teacher  of  the 
prosecutrix,  that  the  deaf  and  dumb  gen- 
erally have  a  sense  of  inferiority  to  other 
people,  and  as  a  class  are  easily  intimidated; 
that  they  are  credulous,  sincere,  and  sub- 
missive, and  that  from  his  acquaintance 
with  the  witness,  he  believed  such  to  be 
her  character.  Held,  that  such  evidence  was 
inadmissible.     Id. 

155.  Weight  and  sufficiency  of  proof. 
Upon  a  trial  for  an  assault  with  intent  to 
commit  a  rape,  the  prisoner  may  be  found 
guilty  upon  proof  that  a  rape  was  actually 
committed.  State  v.  Shepard,  7  Conn.  54; 
State  V.  Smith,  43  Vt.  324;  State  v.  Archer, 
54  New  Hamp.  465. 

156.  On  the  trial  of  an  indictment  for  an 


ooi: 


EAPE.— RECEIYING   STOLEN  PROPEETY 


Assault  with  Intent  to  Commit  Rape. 


Punishment.     Offense  when  Committed. 


assault  with  intent  to  ravish,  it  is  improper 
to  permit  the  prosecutrix  to  testify  that  the 
defendant  "  attempted  to  ravish  her,"  or  a 
witness  to  say  that  the  prosecutrix,  in  mak- 
ing complaint  to  him,  used  that  language. 
Scott  V.  State,  48  Ala.  430. 

157.  On  the  trial  of  an  indictment  for  an 
attempt  to  commit  a  rape,  tlie  fact  that  the 
prisoner  burglariously  entered  a  room  where 
a  young  lady  was  sleeping,  and  grasped  her 
ankle,  without  any  effort  at  explanation,  is 
evidence  for  the  consideration  of  the  jury. 
State  V.  Boon,  13  Ired.  244. 

158.  Where  there  is  evidence  tending  to 
prove  that  a  person  charged  with  an  assault 
with  intent  to  commit  a  rape  was,  at  the 
time,  in  a  greatly  debilitated  condition  from 
a  previous  debauch,  it  is  a  circumstance  for 
the  consideration  of  the  jury  in  determining 
whether  he  was  physically  capable  of  com- 
mitting the  offense.  Nugent  v.  State,  18 
Ala.  521. 

159.  On  a  trial  for  an  assault  with  intent 
to  commit  a  rape,  in  order  to  impeach  a 
witness  who  had  testified  through  an  inter- 
preter in  respect  to  the  time  of  seeing  the 
defendant  in  a  certain  place,  and  who,  on 
cross-examination,  denied  that  he  had  said 
to  any  one  that  he  saw  him  at  an  earlier 
and  different  time,  the  defendant  offered 
one  L.  to  prove  that  at  an  interview  with 
the  witness  he  stated  to  him,  through  an 
interpreter,  that  he  met  the  defendant  an 
hour  earlier  than  he  had  testified.  Held 
that  the  evidence  of  L.  was  inadmissible, 
and  that  the  interpreter  should  be  called,  as 
he  alone  could  know  and  understand  what 
the  witness  had  said.  State  v.  Noyes,  36 
Conn.  80. 

(e)   Verdict. 

160.  Need  not  negative  higher  offense. 
A  verdict  was  as  follows:  "We,  the  jury, 
find  the  prisoner  guilty  of  an  attempt  to 
commit  a  rape."  Held  sufScient,  and  that 
it  was  not  necessary  to  negative  the  charge 
of  rape,  that  being  the  legal  effect  of  the 
finding.     Stephen  v.  State,  11  Ga.  225. 

(/)  Punishment. 

161.  Under  former  statutes  in  relation 


to  slaves.  In  Arkansas,  the  statute  (Dig, 
ch.  51,  pt.  4,  art.  4,  §  9),  punishing  with 
death  an  attempt  by  a  negro  to  commit  a 
Tape  on  a  white  woman,  included  the  case 
of  such  an  attempt  upon  a  white  female 
under  the  age  of  puberty.  Charles  v.  State, 
6  Eng.  389. 

162.  In  Mississippi,  the  statute  (Hutch. 
Dig.  918,  §  21),  providing  that  no  person 
shall  be  convicted  of  an  attempt  to  commit 
an  offense  where  it  appeared  that  the  offense 
was  actually  committed,  did  not  apply  to  the 
case  of  rape  by  a  slave  upon  a  white  woman. 
There  was  no  law  punishing  a  slave  for  rape 
committed  on  a  white  woman ;  but  the  at- 
tempt to  commit  rape  was  made  a  capital 
offense.  Wash  v.  State,  14  Smed.  «fc  Marsh.. 
120. 

163.  The  statute  of  Tennessee  of  1839,  ch. 
19,  §  10,  punishing  a  slave  with  death  for 
an  assault  with  intent  to  commit  rape  on  a 
free  white  woman,  did  not  include  the  case 
of  a  female  under  ten  years  of  age.  Sidney 
V.  State,  3  Humph.  478.  But  in  Virginia, 
a  white  girl  under  twelve,  and  not  having 
attained  to  the  age  of  puberty,  was  deemed 
a  white  woman  within  the  meaning  of  the 
statute  making  it  a  capital  offense  for  a  slave, 
free  negro,  or  mulatto  to  attempt  to  ravish 
a  white  woman.     Watts'  Case,  4  Leigh,  672. 


ilccciDiug  Stolen  Propcrtn. 

1.  Offense  when  committed. 

2.  Indictment. 

8.  Place   of  trial. 

4.  Evidence. 

5.  Charge  of  judge. 

6.  Verdict  and   judgment. 

1.  Offense  when  committed. 
1.  What  constitutes  charge  of  conceal- 
ment. Swearing  in  an  afl3.davit  that  certain 
goods  of  a  specified  value,  have  been  stolen 
by  some  person  or  persons  unknown,  and 
that  from  i^robable  cause,  the  owner  suspects 
that  said  goods  are  concealed  in  a  trunk  be- 
longing to  A.  and  B.,  does  not  constitute  a 
charge  of  larceny,  but  of  knowingly  con- 
cealing stolen  goods.  Field  v.  Ireland,  21 
Ala.  240. 


EECEIYING  STOLEN  PROPERTY. 


533 


Offense  when  Committed. 


2.  Construction  of  statute.  A  statute 
•which  prohibits  the  "  buying,  receiving, 
concealing,  or  aiding  in  the  concealment  of 
stolen  goods,"  specifies  four  distinct  oflfenses, 
and  the  disjunctive  or  applies  to  each  of  the 
preceding  verbs.     State  v.Murphy,6  Ala.845. 

3.  As  bank  notes  are  not  ' '  goods  or  chat- 
tels," the  receiver  of  stolen  bank  notes  can- 
not be  indicted  under  the  statute  of  New 
Jersey,  making  it  a  misdemeanor  to  receive 
stolen  "  goods  or  chattels."  State  v.  Calvin, 
2  Zabr.  207. 

4.  "What  constitutes  a  receiving.  Where 
a  person  allowed  a  trunk  of  stolen  goods  to 
be  placed  on  board  a  vessel  destined  for 
J^orth  Carolina,  as  a  part  of  his  luggage,  it 
was  held  that  he  might  be  convicted  of 
receiving  stolen  goods.  State  v.  Scovel,  1 
Mills,  274. 

5.  In  California,  where  on  a  trial  for  grand 
larceny  it  was  proved  that  the  defendant 
was  not  in  the  county  where  the  oflense  was 
committed  at  the  time  of  its  commission,  and 
"did  not  participate  in  the  theft,  but  after- 
ward, knowing  that  the  property  was  stolen, 
received  it  in  the  county  where  he  resided, 
and  aided  in  selling,  it  was  held  that  he 
could  not  be  convicted  of  larceny  in  the 
first  mentioned  count,  and  that  he  was  not 
an  accessory  after  the  fact,  but  liable  as  a 
receiver  of  stolen  goods.  People  v.  Stakem, 
40  Cal.  599. 

6.  The  defendant  agreed  with  a  small  boy 
that  the  latter  should  take  his  grandfather's 
money  and  hide  it  at  the  stable,  and  that 
the  defendant  should  go  at  night  and  tap  on 
the  door,  and  the  boy  would  run  out  and 
ehoot  at  him  for  a  blind.  This  arrangement 
was  carried  out,  but  the  boy  could  not  find 
the  money.  Several  days  afterward,  the  boy 
took  the  money  to  a  place  two  and  a  half 
miles  distant,  and  gave  it  to  the  defendant. 
Held,  that  a  conviction  of  the  defendant  as 
principal  was  error.  Able  v.  Com.  5  Bush, 
Ky.  698,  Robertson,  .J.,  dissenting. 

7.  A  conviction  for  knowingly  receiving 
stolen  goods  was  sustained  upon  proof  that 
the  defendant  received  them  from  the  servant 
of  a  carrier,  and  concealed  them,  and  that 
t  he  servant  furtively  acquired  them.  State 
•V.  Teideman,  4  Stroljli.  300. 


8.  In  South  Carolina,  to  make  the  receiver 
of  stolen  goods  liable  under  the  statute 
of  1769,  the  goods  must  have  been  taken  by 
burglary,  or  house  breaking.  State  v.  San- 
ford,  1  Nott  &  McCord,  512. 

9.  Possession  not  necessary.  On  the 
trial  of  an  indictment  for  receiving  and 
aiding  in  concealing  stolen  property,  it  is 
not  necessary  to  prove  that  the  defendant 
had  actual  possession  of  it,  and  concealed  it 
with  his  own  hands.  If  he  was  present, 
knew  that  it  was  stolen,  saw  it  hid,  kept 
silent,  and  refused  to  give  information  to  the 
officers  searching  for  it,  such  conduct  unex- 
plained will  warrant  his  conviction.  State 
V.  St.  Clair,  17  Iowa,  149.  See  State  v. 
Turner,  19  lb.  144. 

10.  May  be  owner  of  property.  Where 
goods  have  been  stolen  from  the  bailee  of  the 
owner,  the  owner  may  make  himself  crimin- 
ally liable  by  fraudulently  receiving  them 
from  the  thief.  People  v.  Wiley,  3  Hill, 
194. 

11.  By  agent.  Where  a  person  directs 
another  to  receive  property  lost  or  stolen, 
the  latter  who  receives  the  property  from  the 
thief,  knowing  it  to  be  stolen,  is  liable  to 
indictment.  Caskells  v.  State,  4  Yerg.  149; 
Wright  V.  State,  5  lb.  154. 

12.  The  statute  of  Michigan  in  relation 
to  the  offense  of  receiving  stolen  property, 
knowing  the  same  to  have  been  stolen,  has 
enlarged  the  common-law  ofibuse,  by  making 
those  who  aid  the  principal  felon  equally 
guilty  with  him.  People  v.  Reynolds,  2 
Mich.  422. 

13.  Where  there  is  a  pretense  of 
agency.  Funds  having  been  stolen  from 
a  bank  in  Maryland,  A.,  a  police  justice,  in- 
vited the  agents  of  the  bank  to  an  interview, 
and  undertook  to  procure  a  restoi'ation  of 
the  property  upon  condition  that  the  bank 
would  pay'therefor  at  the  rate  of  ten  per 
cent,  on  the  amount,  saying  that  his  em- 
ployer would  not  take  less.  After  several 
days  spent  in  negotiating,  during  which  A. 
professed  to  be  acting  in  accordance  with 
the  views  and  wishes  of  the  thief,  it  was 
finally  agreed  that  the  property  should  be 
restored  for  less  than  was  first  demanded, 
and  a  place  was  designated  for  carrying  out 


53-1 


EECEIVING  STOLEN   PROPERTY. 


Offense  when  Committed. 


Indictment. 


the  agreement.  A.  brought  the  property  to 
the  appointed  place  and  delivered  it  to  the 
agents  of  the  bank,  who  thereupon  paid  him 
what  they  agreed.  Held  that  A.  might  be 
convicted  as  a  receiver  of  stolen  goods. 
People  v.  Wiley,  supra.  If  A.  had  only  de- 
manded such  a  sum  as  was  insisted  on  by 
the  thief  before  surrendering  the  goods,  to- 
gether with  a  fair  compensation  for  his  own 
trouble,  the  case  might  have  been  different. 
Ibid. 

14.  Receiver  not  an  accessory.  The  re- 
ceiving of  stolen  goods  knowing  them  to  be 
stolen  does  not  constitute  the  receiver  an 
accessory,  because  he  renders  no  aid  to  the 
principal  felon,  but  is  in  itself  a  distinct 
offense.     Loyd  v.  State,42  Ga.  221. 

15.  The  offense  of  receiving  stolen  goods 
is  not  merged  in  that  of  being  an  accessory 
before  the  fact  to  the  larceny,  the  less  being 
merged  in  the  greater  offense  only  when 
both  result  from  the  same  act  or  continuing 
transaction.  State  v.  Coppenburg,  2  Strobh. 
273. 

16.  In  Connecticut,  under  the  statute  of 
1830,  the  receiver  of  stolen  goods  knowing 
them  to  have  been  stolen  may  be  prosecuted 
as  a  principal.  State  v.  Weston,  9  Conn. 
527. 

17.  Accomplice.  The  thief  is  not  an  ac- 
comf)lice  of  the  person  who  receives  the 
stolen  goods  knowing  them  to  have  been 
stolen,  but  guilty  of  a  different  offense. 
People  V.  Cook,  5  Parker,  351. 

18.  Must  have  been  fraudulent  intent. 
To  constitute  the  offense  of  receiving  stolen 
goods  knowing  them  to  have  been  stolen, 
the  stolen  goods  must  have  been  received 
feloniously,  or  with  intent  to  secrete  them 
from  the  owner,  or  in  some  other  way  to 
defraud  him  of  them.  People  v.  Johnson, 
1  Parker,  564. 

19.  It  is  erroneous  to  charge  the  jury  that 
if  the  defendant  received  the  goods  knowing 
them  to  have  been  stolen  he  is  guilty  of 
crime,  without  also  stating  that  he  must 
have  fraudulently  intended  to  deprive  the 
owner  of  them.  Rice  v.  State,  3  Heisk.  215 ; 
s.  c.  1  Green's  Crim.  Reps.  306. 

20.  To  obtain  a  reward.  A  person  may 
be  convicted  of  receiving  stolen  goods,  under 


the  statute  of  New  York,  who  with  guilty 
knowledge  receives  a  receipt  designed  as  a 
means  of  depriving  the  owner  of  the  Avhole 
or  part  of  the  goods,  although  the  purpose 
be  not  to  deprive  him  of  the  specific  goods, 
but  to  defraud  him  into  the  payment  of  a 
reward  for  the  restoration  of  them.  People 
V.  Wiley,  3  Hill,  194. 

21.  Need  not  have  been  expectation  of 
benefit.  It  is  no  defense  to  a  prosecution 
under  a  statute  for  receiving  or  aiding  in 
the  concealment  of  stolen  goods,  knowing 
the  same  to  have  been  stolen,  that  the  de- 
fendant received  the  goods  as  a  friendly  act 
to  the  thief,  without  any  benefit  or  expecta- 
tion of  benefit.  Com.  v.  Bean,  117  Mass. 
141. 

22.  A  person  received  stolen  goods  know- 
ing them  to  have  been  stolen,  not  intending 
to  make  them  his  own,  or  to  derive  any 
profit  from  them,  but  simply  to  aid  the  thief 
as  a  friendly  act.  Held  that  he  was  rightly 
convicted  of  receiving  stolen  goods  knowing 
them  to  have  been  stolen.  State  v.  Bush- 
ing, 69  N.  C.  29 ;  s.  c.  1  Green's  Crim.  Reps. 

372. 

2.  Indictment. 

23.  When  it  will  lie.  In  general,  a  per- 
son cannot  be  convicted  of  receiving  stolen 
goods  until  after  the  conviction  of  the  thief. 
But  in  Massachusetts,  under  the  statute  of 
1784,  ch.  50,  §  9,  the  receiver  may  be  in- 
dicted for  a  misdemeanor,  although  the  prin- 
cipal is  not  prosecuted  or  known.  Com.  v. 
Andrews,  3  Mass.  126. 

24.  Description  of  property.  An  indict- 
ment for  receiving  stolen  goods  must  de- 
scribe the  goods  with  certainty,  and  a 
variance  in  respect  to  them  will  be  fatal. 
People  V.  Wiley,  3  Hill,  194. 

25.  An  indictment  alleged  that  the  de- 
fendant received  "  sundry  pieces  of  silver 
coin,  made  current  by  law,  usage  and  cus- 
tom within  the  State  of  Alabama,  amount- 
ing together  to  the  sura  of  five  hundred  and 
thirty  dollars  and  fifteen  cents."  Held  in- 
sufficient in  not  specifying  the  number  and 
denomination  of  the  coin.  State  v.  Murphy, 
6  Ala.  845. 

26.  An  indictment  for  receiving  stolen 
goods  which  describes  the  stolen  property 


RECEIVING  STOLEN"  PROPERTY 


535 


Indictment. 


as  so  mauy  yards  of  cloth  of  a  certain  value, 
is  sufficiently  definite,  and  will  be  sustained 
by  proof  that  they  were  pieces  of  any  kind 
of  cloth.     Com.  V.  Campbell,  103  Mass.  436. 

27.  Need  not  state  value.  In  Rhode 
Island,  the  common-law  distinction  between 
grand  and  petit  larceny  having  been  abol- 
ished, an  indictment  for  receiving  stolen 
goods  need  not  allege  their  value.  State  v. 
Watson,  8  R.  I.  114. 

28.  Name  of  owner.  In  Maine,  it  has 
been  held  that  an  indictment  against  a  re- 
ceiver of  stolen  goods  which  does  not  allege 
the  ownership  of  the  property  stolen,  or  that 
the  principal  has  been  duly  convicted,  is 
fatally  defective.  State  v.  Mcxiloon,  40 
Maine,  133. 

29.  Bank  bills  complete  in  form,  but  not 
issued,  are  the  property  of  the  bank,  and 
may  be  so  desci'ibed  in  an  indictment  for 
receiving  them  knowing  them  to  have  been 
stolen.     People  v.  Wiley,  8  Hill,  194. 

30.  Where  goods  which  are  the  joint 
property  of  three  persons  are  stolen  from  one 
of  them,  who  has  them  in  his  custody  for 
sale,  an  indictment  for  receiving  the  goods 
knowing  them  to  be  stolen,  may  allege  that 
they  are  his  property.  Com.  v.  Maguire, 
108  Mass.  469. 

31.  An  indictment  for  receiving  stolen 
goods  may  describe  them  as  the  property  of 
the  person  from  whom  they  were  taken,  al- 
though as  against  the  true  owner  his  posses- 
sion was  tortious.  Com.  v.  Finn,  108  Mass. 
466. 

32.  Where  the  offense  charged  is  felo- 
niously receiving  goods  which  have  been 
stolen  from  an  incorporated  company,  it  is 
necessary  to  allege  in  the  indictment,  and 
also  to  prove  at  the  trial,  that  the  injury  was 
done  to  an  existing  corporation.  Cohen  v. 
People,  5  Parker,  330. 

33.  Name  of  thief.  In  general,  an  in- 
dictment for  receiving  stolen  goods  know- 
ing them  to  be  stolen,  need  not  state  the 
name  of  the  person  who  stole  them ;  and  the 
allegation  that  his  name  is  unknown  to  the 
grand  jury  is  equally  immaterial.  People  v. 
Avila,  43  Cal.  196;  State  v.  Cojjpenburg,  2 
Strobh.  373;  Swaggerty  v.  State,  9  Yerg. 
338 ;  State  v.  Hazard,  3  R.  I.  474 ;  State  v. 


Murphy,  6  Ala.  845:  Com.  v.  State,  11  Gray, 
60;  State  v.  Smith,  37  Mo.  58;  Shriedley  v. 
State,  33  Ohio,  N.  S.  130 ;  s.  c.  3  Green's 
Grim.  Reps.  530.  Nor  need  the  indictment 
allege  any  consideration  passing  between  the 
thief  and  the  receiver.  Hopkins  v.  People, 
12  Wend.  76. 

34.  But  in  North  Carolina,  an  indictment 
for  receiving  stolen  goods  must  name  the 
person  for  whom  the  goods  were  received,  so 
as  to  show  that  the  defendant  received  them 
from  the  principal  felon,  the  statute  not  ajj- 
plying  if  he  received  them  from  any  one 
else.  State  v.  Ives,  13  Ired.  833  ;  State  v. 
Beatty,  Phil.  N.  C.  53. 

35.  A  receiver  of  stolen  goods,  charged 
with  receiving  the  property  of  persons  to  the 
jury  imknown,  stolen  by  a  person  to  the 
jury  unknown,  will  not  be  entitled  to  ac- 
quittal because  the  same  grand  jury  have 
found  a  bill  imputing  the  same  larceny  to  a 
person  named.     Com.  v.  Hill,  11  Cush.  137. 

36.  Unnecessary  averment.  An  indict- 
ment for  receiving  stolen  goods,  knowing 
the  same  to  have  been  stolen,  need  not  add 
the  words  "taken  and  carried  away."  Com. 
V.  Lakeman,  5  Gray,  82. 

37.  Charging  offense  disjunctively.  In 
Alabama,  the  offense  of  concealing,  or  aid- 
ing to  conceal,  a  stolen  horse  or  mare, 
knowing  the  same  to  have  been  stolen,  and 
buying  or  receiving  a  stolen  liorse  or  mare, 
knowing  the  same  to  have  been  stolen,  can- 
not be  charged  disjunctively  in  the  same 
count.     Barber  v.  State,  34  Ala.  313. 

38.  Averment  of  intent.  The  indict- 
ment should  allege  that  the  stolen  goods 
were  received  with  intent  to  deprive  the 
owner  of  them.  Hurell  v.  State,  5  Humjih. 
68. 

39.  An  indictment  for  receiving  stolen 
goods  which  does  not  charge  that  the, pris- 
oner received  them  for  the  purpose  of  de- 
frauding the  owner,  will  be  bad,  and  the 
defect  may  be  taken  advantage  of  by  de- 
murrer, writ  of  error,  or  motion  in  arrest  of 
judgment.  Pelts  v.  State,  3  Blackf.  38; 
People  V.  Johnson,  1  Parker,  564. 

40.  An  allegation  in  an  indictment  that 
the  defendants  feloniously  bought,  or  re- 
ceived  two   horses,    of    the    value   of    one 


53C 


EECEIYING  STOLEN"  PROPERTY 


Indictment. 


Place  of  Trial. 


Evidence. 


hundred  dollars  each,  the  personal  property 
of  S.  "W.,  which  said  horses  had  before  then 
been  feloniously  taken  and  carried  away, 
they,  the  said  defendants,  well  knowing  that 
the  said  horses  had  been  feloniously  taken 
and  carried  away,  is  a  sufficient  averment  of 
guilty  knowledge  on  the  part  of  the  defend- 
ants.    Huggins  V.  State,  41  Ala.  393. 

41.  Compelling  prosecution  to  elect. 
"Where  the  indictment  contains  two  counts, 
the  first  charging  the  defendant  with  the 
larceny  of  certain  goods,  and  the  second 
with  receiving  the  same  goods,  knowing 
them  to  have  been  stolen,  the  court  may 
proceed  to  ti'ial  upon  both  counts,  or  com- 
pel the  prosecution  to  elect  upon  which 
count  it  will  proceed.  State  v.  Hazard,  2 
R.  I.  474. 

3.  Place  op  trial. 

42.  With  reference  to  the  county.     Tn 

New  York,  a  person  may  be  tried  and  con- 
victed of  receiving  and  having  stolen  prop- 
erty in  any  county  where  the  prisoner  either 
received  the  property  at  first,  or  at  any  time 
afterward  had  it.  Wills  v.  People,  3  Park- 
er, 473. 

43.  A.  stole  cotton  in  W.  county,  which 
he  delivered  to  B.  in  M.  county,  the  latter 
knowing  at  the  time  that  it  had  been  stolen. 
Subsequently  B.  sent  some  of  the  cotton 
through  W.  county.  Held  that  the  offense 
of  receiving  stolen  goods  was  complete  in  M. 
county,  and  that  its  subsequent  removal  to 
W.  county  did  not  constitute  a  second  of- 
fense of  receiving  stolen  goods.  Roach  v. 
State,  5  Cold.  Tenn.  39. 

44.  "Where  the  goods  were  stolen  in 
another  State.  In  Maine,  an  instruction 
of  the  jury  that  if  they  believed  from  the 
evidence  that  the  defendant  bought,  re- 
ceived, or  aided  in  concealing  property  as 
set  forth  in  the  indictment,  he  at  that  time 
knowing  the  same  to  have  been  stolen,  it 
would  be  their  duty  to  convict,  notwith- 
standing the  original  larceny  was  committed 
in  Massachusetts,  was  held  correct  under 
the  statute  (R.  S.  ch.  156,  §  10).  State  v. 
Stimpson,  45  Maine.  608.  / 

4.  Evidence.       w 

45.  Must  support  charge.     Although  an 


indictment  for  receiving  stolen  goods  need 
not  name  the  person  by  whom  the  larceny 
was  committed,  yet  if  alleged  it  must  be 
proved.  Where,  therefore,  the  indictment 
charged  larceny  at  common  law  by  one  M., 
and  that  the  defendant  received  and  aided 
in  the  concealment  of  the  property,  know- 
ing the  same  to  have  been  stolen,  and  the 
larceny  by  M.  as  charged  was  not  proved, 
it  was  held  that  the  conviction  could  not  be 
sustained.     Com.  v.  King,  9  Cush.  284. 

46.  The  record  of  the  conviction  of  a  thief 
on  his  plea  of  guilty  to  an  indictment 
against  him  for  stealing  certain  property,  is 
not  admissible  in  evidence  to  prove  the 
theft  on  the  trial  of  the  receiver  of  that 
property  upon  an  indictment  against  him 
alone,  which  does  not  aver  that  the  thief 
has  been  convicted.  Com.  v.  Elisha,  3 
Gray,  460. 

47.  Where  an  indictment  charges  the  de- 
fendant with  receiving  stolen  goods  jointly 
with  two  other  persons,  he  may  l^e  convicted, 
although  the  evidence  shows  only  a  sepa- 
rate act  of  receiving  by  him.  State  v.  Smith, 
37  Mo.  58. 

48.  An  indictment  under  the  statute  of 
Michigan  (R.  S.  1846,  ch.  154,  §  20),  for  aid- 
ing in  the  concealment  of  any  articles,  money, 
goods,  or  property,  knowing  the  same  to  be 
stolen,  is  sustained  by  proof  that  the  defend- 
ant assisted  the  thief  in  converting  the  prop- 
erty to  his  use,  or  aided  him  in  preventing 
its  recovery  by  the  owner,  without  showing 
that  the  property  was  secreted.  People  v. 
Reynolds,  2  Mich.  422. 

49.  On  a  trial  for  receiving  stolen  goods, 
knowing  that  they  were  stolen,  it  is  not 
competent  for  the  prosecution  to  prove  that 
the  defendant's  house  was  the  resort  of 
thieves,  who  went  there  to  dispose  of  their 
booty.  People  v.  Pieqjont,  1  Wheeler's 
Crim.  Cas.  139. 

50.  Admissions  and  declarations  of  de- 
fendant. On  the  trial  of  an  indictment  for 
receiving  stolen  goods,  evidence  is  admissible 
of  a  conversation  between  the  defendant  and 
the  principal  in  the  larceny.  Com.  v.  Jen- 
kins, 10  Gray,  485. 

51.  On  a  trial  for  receiving  goods  know- 
ing them  to  have  been  stolen,  it  was  proved 


EECEIYING  STOLEN  PROPERTY". 


537 


Evidence. 


that  the  goods  were  stolen  by  the  clerk  of 
the  complainant,  and  sold  or  pawned  to  the 
prisoner,  and  that  previous  to  the  particular 
act  charged  there  had  been  a  series  of  simi- 
lar transactions  between  the  clerk  and  the 
prisoner,  in  which  the  latter  had  received 
from  the  clerk  goods  belonging  to  the  com- 
plainant similar  to  those  described  in  the 
indictment.  Held  that  conversations  had 
between  the  accused  and  the  clerk  at  the 
time  of  such  transactions  were  admissible  as 
tending  to  prove  guilty  knowledge.  Cop- 
perman  v.  People,  15  N.  Y.  Supm.  N.  S.  199; 
8  lb.  15;  affi'dSG  N.  Y.  591. 

52.  "Where  husband  and  wife  are  jointly 
indicted  for  receiving  stolen  goods,  the 
declarations  of  the  wife,  though  criminating 
both,  are  admissible  in  evidence  against  her. 
Com.  V.  Briggs,  5  Pick.  429. 

53.  On  a  trial  for  receiving  stolen  goods 
knowing  them  to  have  been  stolen,  the  defend- 
ant offered  to  prove  that  during  the  week 
previous  to  receiving  the  goods  he  stated 
publicly  his  expectation  that  he  would  get 
the  goods.  Held  not  admissible.  People  v. 
Wiley,  3  Hill,  194. 

54.  Declarations  of  confederate.  Where 
a  person  receives  stolen  goods,  knowing 
that  they  were  stolen,  and  sells  them,  it  will 
be  presumed  that  the  transaction  was  on 
joint  account;  and  it  is  competent  to  prove 
the  declarations  of  either  party  made  before 
the  sale  relative  to  the  common  enterprise. 
People  V.  Pitcher,  15  Mich.  397. 

55.  Admissions  and  declarations  of  thief. 
On  the  trial  of  a  woman  for  receiving  stolen 
goods,  it  was  proved  that  the  goods  had 
been  stolen  by  a  brother  of  the  defendant, 
and  that  they  were  found  with  a  large 
amount  of  other  stolen  property  in  the  de- 
fendant's house,  no  person  being  at  the 
time  in  the  house  but  the  defendant  and  one 
K.  K.  being  introduced  by  the  defendant, 
she  proposed  to  ask  him  what  was  said  by 
the  brother  at  an  interview  between  them, 
after  the  goods  were  stolen,  relative  to  send- 
ing his  trunks  to  her  house.  Held  that  the 
question  was  proper  as  a  part  of  the  res 
gesta:     Durant  v.  People,  13  Mich.  351. 

56.  Presumption  from  possession.  The 
mere  possession  of  stolen  goods  is  not  evi- 


dence that  the  party  in  whose  possession 
they  are  found  received  them  knowing  they 
had  been  stolen.     Durant  v.  People,  swpra. 

57.  Where  an  indictment  alleged  the  re- 
ceiving or  aiding  in  the  concealment  of  a 
sheep  and  of  honey  in  the  comb,  which  had 
been  stolen,  it  was  held  that  the  fact  that 
strained  honey,  and  the  cloth  through  which 
it  was  strained,  and  mutton  tallow  and 
scraps,  were  found  on  the  defendant's  prem- 
ises, was  admissible  in  connection  witli  evi- 
dence tending  to  show  that  a  sheep  was 
killed  and  honey  in  the  comb  taken  there. 
Com.  V.  Slate,  11  Gray,  60. 

58.  On  the  trial  of  an  indictment  for  re- 
ceiving goods,  knowing  them  to  have  been 
stolen,  evidence  is  admissible  that  other 
stolen  goods  were  found  in  the  possession  of 
the  defendant,  to  show  guilty  knowledge. 
Devoto  V.  Com.  3  Mete.  Ky.  417. 

59.  Proof  of  other  similar  acts.  On  the 
trial  of  an  indictment  for  receiving  goods 
knowing  them  to  be  stolen,  the  prosecution 
may  give  in  evidence  a  series  of  other  acts 
of  the  like  character,  to  show  the  knowledge 
or  scienter  of  the  accused,  or  to  rebut  any 
presumption  of  innocent  mistake.  But  the 
prisoner  cannot  prove  the  declarations  of 
the  persons  from  whom  he  received  the 
stolen  goods.  People  v,  Rando,  3  Parker, 
335  ;  Wills  v.  People,  lb.  473. 

60.  On  a  trial  for  receiving  property 
knowing  it  to  be  stolen,  it  is  competent 
upon  the  question  of  guilty  knowledge  to 
prove  that  the  accused  had  frequently  re- 
ceived from  the  thief  the  same  kind  of 
property  knowing  that  he  had  stolen  it  from 
the  same  person  or  place ;  and  conversations 
between  the  thief  and  the  accused  upon 
previous  occasions  when  property  was  re- 
ceived are  admissible  as  part  of  the  res  gestm 
and  to  show  knowledge.  Cojjperman  v. 
People,  56  N.  Y.  591  ;  Shriedley  v.  State,  23 
Ohio,  N.  S.  130;  s.  c.  2  Green's  Crim.  Reps. 
530. 

61.  Upon  a  trial  for  receiving  property 
knowing  it  to  have  been  stolen,  the  prosecu- 
tion, for  the  purpose  of  showing  guilty 
knowledge,  cannot  prove  that  the  accused 
has  received  otlicr  property  from  other  per- 


538 


EECEIVING  STOLEN  PROPERTY. 


Evidence. 


sons  knowing  the  same  to  have  been  stolen. 
Coleman  v.  People,  55  N.  Y.  81. 

62.  Proof  that  goods  were  bought  for 
less  than  they  were  worth.  Where,  on  a 
trial  for  receiving  goods  knowing  them  to 
have  been  stolen,  it  is  proved  that  the  price 
paid  by  the  accused  for  the  goods  was  much 
less  than  their  value,  it  is  not  error  for  the 
court  to  charge  the  jury  that  it  is  material 
for  them  to  determine  whether  the  transac- 
tion was  a  sale  or  a  pawn  to  secure  a  loan. 
Copperman  v.  People,  3  N.  Y.  Supm.  N.  S. 
199;  8  lb.  15;  56  N.  Y.  591. 

63.  On  the  trial  of  an  indictment  for  re- 
ceiving brass  couplings,  knowing  them  to 
have  been  stolen,  the  stolen  couplings  were 
not  produced,  but  a  similar  coupling  exhib- 
ited. If  the  couplings  received  by  the 
defendant  were  adapted  to  present  use,  a 
pi'esumption  of  guilt  arose  from  the  flict 
that  the  price  he  paid  for  them  was  far  less 
than  their  value.  Witnesses  were  called  to 
prove  that  they  were  machinists  and  brass 
finishers,  and  that  without  close  inspection, 
it  could  not  be  told  whether  couplings  simi- 
lar to  the  one  shown  in  the  case  were  of  any 
use  except  as  old  brass,  to  melt  over.  Held 
that  the  testimony  was  admissible  as  having 
a  tendency  to  destroy  the  presumption  aris- 
ing from  inadequacy  of  price.  Jupitz  v. 
People,  34  111.  51G. 

64.  On  the  trial  of  an  indictment  for 
receiving  stolen  goods  knowing  them  to 
have  been  stolen,  to  prove  the  scienter  evi- 
dence is  admissible  of  a  stealing  by  the 
same  thief  from  the  same  owner  of  goods  of 
a  similar  description  but  a  short  time  before 
the  transaction  under  investigation,  and  the 
purchase  of  those  goods  by  the  accused  for 
an  inadequate  price,  with  knowledge  that 
they  were  stolen.  Coleman  v.  People,  58 
N.  Y.  555 ;  affi'g  s.  c.  4  N.  Y.  Supm.  ^.  S. 
61. 

65.  On  the  trial  of  an  indictment  for 
receiving  and  having  stolen  property,  a  wit- 
ness testified  that  he  called  on  the  defend- 
ants and  found  that  they  had  the  stolen 
property ;  that  he  bought  it  of  them  for  a 
great  deal  less  than  it  was  worth  ;  and  that 
he  had  a  memorandum  of  the  property  in 
question  with  him  at  the  time.    Held  proper 


to  show  that  the  witness  had  previously 
received  the  memorandum  and  the  money 
with  which  he  bought  the  stolen  property, 
from  the  owner.  Wills  v.  People,  3  Parker, 
473. 

66.  Opportunity  to  commit  offense.  On 
the  trial  of  an  indictment  for  receiving 
stolen  goods,  evidence  of  the  kind  of  shop 
which  the  defendant  kept,  and  the  business 
which  he  there  carried  on,  is  admissible  to 
show  his  opportunity  to  commit  the  offense 
charged.     Com.  v.  Campbell,  103  Mass.  436. 

67.  Presumption  from  conduct  of  ac- 
cused. Where  most  of  the  stolen  property 
was  found  stored  in  Williamsburg,  but  a 
portion  of  it  used  as  samples  was  exhibited 
to  the  witness,  and  offered  for  sale  to  him  in 
the  city  of  New  York  within  fifteen  min- 
utes after  one  of  the  defendants  left  the 
witness  to  get  it,  it  was  held  that  there  was 
sufficient  proof  that  the  defendents  had 
received  or  had  the  property  in  question, 
within  the  city  and  county  of  New  York. 
Wills  V.  People,  3  Parker,  473. 

68.  On  the  trial  of  an  indictment  for 
receiving  and  aiding  in  the  concealment  of 
stolen  goods,  proof  that  B.  and  D.,  who 
were  alleged  to  have  stolen  the  goods,  about 
the  period  of  the  larceny  were  often  seen  in 
company  going  out  in  the  evening  and  re- 
turning home  together  is  admissible;  and 
the  prosecution  need  not  prove  the  precise 
days  named  by  the  witnesses  as  those  on 
which  they  saw  B.  and  D.  together.  Cora. 
V.  Hills,  10  Cush.  530. 

69.  On  a  trial  for  receiving  stolen  goods 
knowing  them  to  have  been  stolen,  evidence 
was  admitted  tending  to  show  that  some 
time  after  the  sale  of  the  stolen  property  by 
the  defendant,  and  before  either  he  or  the 
thief  had  been  prosecuted,  the  defendant 
was  anxious  that  the  thief  should  run  away. 
Held  competent.  People  v.  Pitcher,  15 
Mich.  397. 

70.  Time  of  receiving  goods.  Where  un- 
der an  indictment  charging  in  a  single  count, 
A.,  B.  and  C.  with  receiving  stolen  goods 
knowing  that  they  were  stolen,  it  is  proved 
that  A.  received  some  of  the  goods  at  a 
particular  time,  it  is  not  competent  for  the 
prosecution  to  show  that  B.  and  C.  received 


EECEIVING  STOLEN  PROPERTY. 


539 


Evidence. 


Charge  of  Judge. 


Verdict  and  Judgment. 


the  rest  of  the  goods  at  another  time. 
People  V.  Green,  1  Wheeler's  Crim.  Cas. 
152. 

71.  Testimony  of  accomplice.  On  tlie 
trial  of  an  indictment  for  feloniously  receiv- 
ing stolen  goods,  the  defendant  may  be 
convicted  ujDon  the  testimony  of  an  accom- 
plice which  is  corroborated  by  proof  of  the 
possession  of  the  goods  by  the  defendant, 
although  such  possession  was  not  proved  by 
the  accomplice.  Com.  v.  Savory,  10  Cush. 
535. 

72.  Impeachment  of  witness  for  prose- 
cution. On  the  trial  of  an  indictment  for 
receiving  stolen  goods  knowing  that  they 
were  stolen,  a  witness  for  the  prosecution 
denied,  on  cross-examination,  that  he  had 
any  knowledge  of  a  letter  shown  to  him 
purporting  to  have  been  written  by  him  to 
the  defendant,  stating  that  he  knew  nothing 
whatever  relative  to  the  accusation  against 
the  defendant.  Held  that  the  letter  was  ad- 
missible in  evidence  to  impeach  the  witness, 
prima  facie  proof  having  first  been  given 
that  the  letter  was  written  and  sent  by  the 
witness  to  the  defendant.  Shriedley  v. 
State,  23  Ohio,  N.  S.  130;  s.  c.  3  Green's 
Crim.  Reps.  530. 

5.  Charge  op  judge. 

73.  Assuming  that  proof  of  certain  facts 
would  show  guilty  knowledge.  The  court 
should,  as  a  general  rule,  instruct  the  jury 
hypothetically,  and  not  assume  a  conclusive 
effect  to  circumstances,  or  assume  that  thoy 
are  proved.  Where,  on  the  trial  of  an  in- 
dictment for  receiving  stolen  goods,  the 
court  charged  the  jury  that  a  guilty  knowl- 
edge on  the  part  of  the  defendant  might  be 
shown  by  proving  that  he  bought  the  goods 
very  much  under  their  value,  or  denied  their 
being  in  his  possession,  or  the  like,  it  was 
held  error,  such  facts  not  constituting  a  le- 
gal conclusion  of  guilt.  People  v.  Levison, 
16  Cal.  98. 

74.  But  a  charge  to  the  jury  that  if  the 
prisoner  received  stolen  goods  under  such 
circumstances  that  any  reasonable  man  of 
ordinary  obseiTation  would  have  known 
that  they  were  stolen,  and  concealed  them, 


they  would  be  justified  in  finding  that  he 

knew  they  had  been  stolen,  is  unobjection- 
able.    Collins  V.  State,  33  Ala.  434. 

6.  Verdict  and  judgment. 

75.  "Where  the  indictment  has  a  sepa- 
rate count  for  larceny.  Where  the  indict- 
ment contains  two  separate  counts,  one  for 
larceny,  and  the  other  for  receiving  stolen 
goods,  a  verdict  of  "  guilty  as  charged  in 
the  second  count,  to  wit,  of  receiving  stolen 
goods,  knowing  them  to  be  stolen,"  will 
support  a  conviction  under  the  second 
count.     Oxford  v.  State,  33  Ala.  416. 

76.  Need  not  name  thief.  Under  an  in- 
dictment which  charges  the  receiving  ot 
stolen  goods  from  the  thief,  naming  him, 
a  conviction  will  be  sustained  which  does 
not  find  by  whom  the  goods  were  stolen. 
People  V.  Caswell,  21  Wend.  86. 

77.  Where  the  proof  differs  from 
charge.  In  Alabama,  although  under  an 
indictment  for  buying  or  receiving  stolen 
property,  the  defendant  cannot  be  convicted 
of  concealing  or  aiding  in  the  concealment 
of  the  property,  yet  the  court  may  prop- 
erly refuse  to  instruct  the  jury  that  on 
such  proof,  "they  cannot  find  him  guilty 
as  charged  in  the  indictment,"  since 
such  proof  does  not  negative  the  buying 
or  receiving.  Huggins  v.  State,  41  Ala. 
393. 

78.  Where  there  is  a  plea  of  guilty  of 
part  of  charge.  An  indictment  alleged 
that  the  defendant  received  various  articles 
of  stolen  property,  knowing  them  to  have 
been  stolen,  and  described  and  stated  the 
value  of  each  article.  The  defendant 
pleaded  that  he  was  "guilty  of  receiving 
fifty  dollars'  worth  of  said  property  in  man- 
ner and  form  as  set  forth  in  the  indict- 
ment." Held  that  judgment  could  not  be 
rendered  against  him  on  the  plea.  O'Con- 
nell  V.  Com.  7  Mete.  460. 


Kcco9ui;ancc. 


See  Bail  and  recognizance. 


540 


KELIGIOUS   MEETING,  DISTURBANCE   OF. 


Character  of  OfTense. 


Indictment. 


Kcligiou0   iHccting,   B\b- 
turbancc  of. 

1.  Character  of  offense. 
3.  Indictment. 
3.  Evidence. 

1.  Character  op  offense, 

1.  How  regarded.  The  willful  disturb- 
ance of  a  religious  meeting  is  an  indictable 
offense  at  eommon  law.  People  v.  Degey, 
2  Wheeler's  Crim.  Cas.  135;  State  v.  Smith, 
5  Harring.  490. 

2.  In  Tennessee,  it  is  an  indictable  offense 
to  disturb  a  congregation  assembled  for 
-worship,  at  any  time  before  they  have  ac- 
tually dispersed.  Williams  v.  State,  3 
Sneed,  313;  and  the  disturbance  of  a  relig- 
ious congregation  met  to  transact  business 
connected  with  their  interests  as  a  church, 
is  indictable.  Hollingsworth  v.  State,  5  lb. 
518. 

3.  In  Connecticut,  a  singing  school  for 
instruction  in  sacred  and  church  music,  is 
within  the  statute  of  1857,  p.  29,  making  it 
a  crime  to  disturb  any  district  school,  pub- 
lic, private,  or  select  school,  while  the  same 
is  in  session.  State  v.  Gager,  26  Conn.  607. 
But  a  complaint  for  such  offense,  which  does 
not  allege  that  the  school  was  in  session,  is 
fatally  defective ;  and  it  must  appear  that 
the  school  had  a  teacher,    s.c.  28  Conn. 233. 

4.  The  violent  and  rude  disturbance  of 
citizens  lawfully  assembled  in  town  meeting 
is  an  indictable  offense  at  common  law. 
Com.  V.  Hoxey,  16  Mass.  385. 

5.  The  malicious  disturbing  of  a  meeting 
of  school  directors,  lawfully  assembled,  is 
indictable  at  common  law.  Campbell  v. 
Com.  59  Penn.  St.  266. 

6.  What  deemed  a  disturbance.  In 
Alabama,  to  constitute  the  offense  of  dis- 
turbing religious  worship,  within  the  mean- 
ing of  the  statute  (Code,  §  3357),  there  must 
be  an  actual  interruption  or  disturbance  of 
an  assemblage  of  people  met  for  religious 
worship,  by  noise,  profane  discourse,  rude 
or  indecent  behavior,  or  by  some  other  act 
or  acts  of  like  character,  at  or  near  the 
place  of  worship.     It  is  not  enough,  how- 


ever, that  the  act  was  reckless  or  careless. 
It  must  be  willful  or  intentional.  Harrison 
V.  State,  37  Ala.  154 ;  Brown  v.  State,  46  lb. 
175.  It  is  not  necessary  that  the  interrup- 
tion or  disturbance  was  during  the  progress 
of  the  religious  services.  It  is  sufficient 
that  it  occurred  after  the  close  of  the  serv- 
ices, and  while  a  portion  of  the  people  were 
still  in  the  house,  and  before  a  reasonable 
time  had  elapsed  for  their  dispersion.  Kin- 
ney V.  State,  38  Ala.  224. 

7.  What  not  deemed  an  offense.  The 
defendant  was  indicted  for  disturbing  a  con- 
gregation while  engaged  in  divine  worship, 
which  disturbance  consisted  in  his  singing 
in  so  peculiar  a  manner  as  to  excite  mirth 
in  one  portion  of  the  congregation  and  in- 
dignation in  the  other.  It  appeared  from 
the  evidence  that  at  the  end  of  each  verse 
his  voice  was  heard  after  all  the  other  sing- 
ers had  got  through,  and  that  the  disturb- 
ance was  decided  and  serious ;  that  the 
church  members  had  remonstrated  with 
him,  to  which  he  replied  that  he  would 
worship  his  God,  and  that  as  a  part  of  his 
worship,  it  was  his  duty  to  sing.  It  was 
further  proved  that  the  defendant  was  a 
strict  member  of  the  church,  and  a  man  of 
exemplary  deportment,  and  that  he  had  no 
intention  or  purpose  to  disturb  the  con- 
gregation, but  was  conscientiously  taking 
part  in  the  religious  services.  Held,  that 
the  prosecution  could  not  be  sustained. 
State  V.  Linkaw,  69  N.  C.  214;  s.  c.  1 
Green's  Crim.  Reps.  288. 

8.  A  church  regulation,  that  no  one  shall 
leave  the  church  during  the  services,  is 
illegal.  People  v.  Browne,  1  Wheeler's 
Crim.  Cas.  124. 

2.    Indictment. 

9.  Averment  of  place.  An  indictment 
for  disturbing  public  worship  must  charge 
that  the  acts  causing  the  disturbance  were 
committed  at  or  near  the  place  where  the 
assembly  met  for  worship.  State  v.  Doty, 
5  Cold.  Tenn.  33. 

10.  Description  of  meeting.  In  North 
Carolina,  an  indictment  for  disturbing  "a 
religious  assembly,  commonly  called  a  quar- 
terly meeting  conference,"  was  held  bad  in 


KELIGIOUS  MEETING.— EE VENUE  LAW.— REVOLT.     541 


Indictment. 


Evidence.        Burden  of  Proof.     Restraint  of  Master. 


not  charging  that  the  assembly  had  met 
"for  diviue  worship,"  "divine  service," 
"  religious  worship,"  or  "service,"  or  some- 
thing of  the  same  import.  State  v.  Mitch- 
ell, Sired.  111. 

11.  An  indictment  for  disturbing  a  re- 
ligious ■  meeting  need  not  allege  that  the 
congregation  was  at  the  time  engaged  in 
worship.  State  v.  Yarborough,  19  Texas, 
161. 

12.  Description  of  disturbance.  In  Ar- 
kansas, an  indictment,  under  the  statute 
making  the  disturbing  of  a  congregation  or 
private  family  assembled  for  religious  wor- 
ship a  misdemeanor,  must  describe  the  dis- 
turbance.     State  V.  Minyard,  7  Eng.  156. 

13.  An  indictment  charged  that  J.  H.  did 
contemptuously  disturb  a  congregation  of 
people  assembled  for  religious  worship,  by 
profanely  swearing,  and  by  laughing  and 
talking  aloud.  Held  not  bad  for  duplicity. 
State  V.  Horn,  19  Ark.  578. 

14.  In  Virginia,  it  was  held  that  an  in- 
dictment for  disturbing  a  reKgious  congre- 
gation need  not  allege  the  means  by  which 
the  disturbance  was  eflected.  Com.  v. 
Daniels,  3  Va.  Cas.  403. 

3.  Evidence. 

15.  Place.  Under  an  indictment  for  dis- 
turbing a  religious  congregation  assembled 
for  worship  in  a  church,  or  other  place,  the 
place  of  assembly  being  descriptive  of  the 
oflfense,  must  be  proved  as  charged.  Strat- 
ton  V.  State,  8  Eng.  688. 

16.  An  indictment  for  disturbing  a  re- 
ligious congregation  assembled  in  a  certain 
church  is  not  supported  by  proof  that  the 
defendant  disturbed  a  congregation  as- 
sembled in  the  open  air.     Id. 

17.  Specific  acts.  An  indictment  alleging 
that  the  defendant  disturbed  a  congregation 
by  using  indecent  gestures  and  threatening- 
language  in  the  presence  and  hearing  of 
such  congregation  is  not  supported  by  proof 
that  while  the  minister  w'as  preaching,  the 
defendant,  who  was  a  clergyman  of  another 
denomination,  interrupted  his  discourse  by 
declaring  "  the  doctrines  you  advance  are 
untrue  and  false !  I  hold  the  Word  of  God 
in  my  hand,  and  am  prepared  to  defend  it 


at  all  times,"  the  defendant  being  excited, 
and  producing  confusion  in  the  congrega- 
tion, but  using  no  gestures  or  threatening 
language.     Stratton  v.  State,  supra. 

18.  Proof  of  disturbance  by  others.  Ev- 
idence that  other  persons  had  been  guilty  of 
a  similar  disturbance  in  the  same  church, 
without  objection  or  notice  on  the  part  of 
the  members  of  the  congregation,  is  irrele- 
vant.    Harrison  v.  State,  37  Ala.  154. 

19.  Proof  of  character.  Under  an  in- 
dictment for  disturbiug  religious  worship, 
the  defendant  may  prove  his  good  character, 
but  until  he  has  done  so  the  prosecution 
cannot  show  his  bad  character  as  a  disturb- 
er of  public  worship.     Id. 


Kcsistiug   Process. 

See  Officer,  tit.  Indictmekt,  mb.  37. 

Hcucnuc  £aiii,biolatiau  of. 

1.  Indictment.  The  offense  of  effecting 
an  entry,  and  of  aiding  in  effecting  an  entry 
of  goods,  may  be  charged  conjunctively  in 
one  count,  against  the  same  person,  and  the 
proof  of  either  will  sustain  the  charge.  U. 
S.  v.  Bettilini,  1  Woods.  654. 

2.  Burden  of  proof.  Where  an  indict- 
ment charges  the  defendant  with  violating- 
the  revenue  law,  in  doing  business  without 
a  license  and  without  paying  a  special  tax, 
and  in  failing  to  keep  books,  the  burden  of 
proof  is  on  the  defendant  to  show  that  he 
had  a  license,  paid  the  tax,  and  kept  the 
books.     U.  S.  V.  Devlin,  6  Blatchf.  71. 

Kcuolt 

1.  Restraint  of  master.  To  constitute 
a  revolt,  the  confining  the  master  of  the 
vessel  may  be  by  means  of  moral  restraint, 
by  threats  of  violence,  or  by  physical  re- 
straint of  his  person.  U.  S.  v.  Thompson, 
1  Sumner,  168. 

2.  Attempt  to  commit.  A  combination 
by  the  crew  of  a  vessel  to  resist  the  lawful 


542 


EEVOLT.— RIOT. 


Proof  of  Ownership  of  Vessel. 


What  Constitutes. 


commands  of  the  master  to  make  sail  and 
go  to  sea,  is  an  attempt  to  commit  a  revolt. 
But  they  may  lawfully  refuse  to  go  to  sea  in 
the  vessel  if  they  have  reasonable  cause  to 
believe,  and  do  believe,  that  the  vessel  is 
unseaworthy ;  and  the  burden  of  proof  is  on 
them  to  show  this.  U.  8.  v.  Nye,  2  Curtis 
C.  C.  225. 

3.  Proof  of  ownership  of  vessel.  On 
the  trial  of  an  indictment  for  an  attempt  to 
commit  a  revolt  on  board  of  an  American 
vessel  in  a  foreign  port,  the  ownership  of 
the  vessel  by  an  American  citizen  may  be 
jsroved  orally.  U.  S.  v.  Seagrist,  4  Blatchf. 
420. 


Riot. 

1.  What  constitutes. 

2.  Indictment. 

3.  Trial. 

4.  Evidence. 

5.  Verdict. 

1.  What  constitutes. 

1.  How  defined.  A  riot  is  a  tumultuous 
disturbance  of  the  peace  by  three  or  more 
persons  assembled  of  their  own  authority, 
with  intent  mutually  to  assist  each  other 
against  any  person  who  shall  oppose  them, 
and  afterward  putting  the  design  into  exe- 
cution in  a  terrific  and  violent  manner, 
whether  the  object  be  lawful  or  unlawful. 
State  V.  Brazil,  1  Rice,  257;  State  v.  Gon- 
nolly,  3  Rich.  337;  Com.  v.  Runnels,  10 
Mass.  518;  State  v.  Cole,  2  McCord,  117; 
Pennsylvania  v.  Craig,  Addis.  190;  State  v. 
Brooks,  1  Hill,  S.  C.  3G1 ;  State  v.  Russell, 
45  New  Hamp.  83. 

2.  In  Georgia,  the  statute  defines  a  riot 
to  be  where  "any  two  or  more  persons, 
either  with  or  without  a  common  cause  of 
quarrel,  do  an  unlawful  act  of  violence,  or 
any  other  act,  in  a  violent  and  tumultuous 
manner."     Prince  v.  State,  30  Ga.  27. 

3.  What  assemblage  requisite.  In 
Maine,  if  persons  upon  being  lawfully  as- 
sembled conspire  to  cause  a  breach  of  the 
peace,  they  are  guilty  of  riot.  State  v. 
Snow,  18  Me.  34G.      In  Illinois  and  South  I 


Carolina,  a  riot  may  be  committed  in  doing 
a  lawful  act  in  a  violent  and  tumultuous 
manner.  Dougherty  v.  People,  4  Scam. 
180;  State  v.  Brooks,  1  Hill,  S.O.  361  ;  State 
V.  Connolly,  3  Rich.  337  ;  State  v.  Blair,  13 
lb.  93.  In  Missouri,  the  common-law  offense 
of  riot  does  not  exist.  To  constitute  riot 
under  the  statute  of  that  State,  the  act  done 
or  attempted  must  be  unlawful.  Smith  v. 
State,  14  Mo.  147.  In  North  Carolina, 
where  the  assembly  is  lawful,  the  subsequent 
illegal  conduct  of  the  persons  so  assembled, 
will  not  make  them  rioters.  State  v.  Stal- 
cup,  1  Ired.  30.  To  constitute  a  riot  it  is 
not  necessary  that  the  facts  charged  should 
amount  to  a  distinct  and  substantive  indict- 
able ofiense.  An  attempt  to  commit  an  act 
of  violence  which,  if  completed,  would  be 
an  indictable  ofl>3nse,  is  sufficient.  State  v. 
York,  70  N.  C.  66. 

4.  Acts  amounting  to.  Where  persons 
go  through  the  street  of  a  city,  crying  fire, 
blowing  horns,  and  shooting  guns,  it  is  a 
riot.  And  a  riot  may  be  committed  by 
kicking  a  foot  ball  in  a  noisy  and  tumul- 
tuous manner,  calculated  to  excite  terror 
among  the  inhabitants  of  a  town.  If  a  num- 
ber of  persons  go  to  a  theater  with  the 
intention  of  rendering  the  performance  in- 
audible, they  may  be  guilty  of  a  riot,  though 
they  commit  no  acts  of  violence.  State  v. 
Brazil,  1  Rice,  257. 

5.  In  Massachusetts,  it  was  held  that  an 
unlawful  and  tumultuous  assembly,  disturb- 
ing the  selectmen  of  a  town  in  the  exercise 
of  their  duty  on  a  public  day  in  a  public 
place,  and  obstructing  the  inhabitants  of  a 
town  in  the  exercise  of  their  constitutional 
right  to  vote,  was  an  aggravated  riot.  Com. 
V.  Runnels,  10  Mass.  518. 

6.  In  Pennsylvania,  where  a  liberty  jjole 
was  raised  contrary  to  law  in  a  riotous  man- 
ner, and  United  States  commissioners  in- 
sulted, it  was  held  that  such  acts  were  in- 
dictable. Pennsylvania  v.  Morrison,  Addis. 
274. 

7.  By  trespassers.  The  disturbance  of 
another  in  the  enjoyment  of  a  right  which 
would  ordinarily  constitute  a  trespass,  when 
done  by  numbers  unlawfully  combined  is  a 
riot.     Com.  v.  Runnels,  10  Mass.  520. 


RIOT. 


543 


What  Constitutes, 


Indictment. 


8.  Four  persons  went  by  agreement  at 
midnight  for  a  frolic  to  the  stable  of  another 
and  shaved  his  horse's  tail,  at  the  same  time 
making  a  noise  which  aroused  the  owner  of 
the  horse  and  alarmed  his  family.  Held 
that  they  were  guilty  of  riot.  State  v. 
Alexander,  7  Rich.  5. 

9.  Three  persons  went  in  company  where 
one  Brown  w^as  at  work.  One  of  them  pro- 
cured a  club  in  the  presence  of  the  other 
two,  used  threatening  language  to  Brown, 
and  commanded  his  associates  to  cut  up 
Brown's  house  logs,  which  they  did.  Held 
that  these  acts  constituted  a  riot.  State  v. 
Montgomery,  1  Spear,  13. 

10.  Destruction  of  one's  own  property. 
A  man  may  lawfully  pull  down  his  own 
house  in  a  tumultuous  manner,  and  with  a 
great  concourse  of  people,  and  if  it  be  ac- 
companied with  no  circumstances  calculated 
to  excite  terror  or  alarm  in  others,  it  will  not 
constitute  a  riot.  State  v.  Brazil,  1  Rice, 
257. 

11.  Aiding  and  encouraging  others  in 
the  commission  of  unlawful  acts.  To 
make  a  person  a  rioter,  he  need  not  be 
actively  engaged  in  the  riot,  but  only  present 
giving  countenance,  support  or  acquiescence. 
Williams  v.  State,  9  Mo.  368 ;  State  v.  Straw, 
33  Maine,  554. 

12.  The  following  charge  was  held  cor- 
rect :  "  If  a  crowd  of  three  or  more  persons 
engaged  in  the  attack  on  H.  with  the  pre- 
concerted intent  to  commit  an  assault  and 
battery  upon  him,  and  accomplished  the 
unlawful  act,  and  the  defendants,  or  any  of 
them,  participated  in  the  unlawful  proceed- 
ing, they  were  guilty  of  riot."  People  v. 
White,  55  Barb.  606. 

13.  A  riot  may  be  committed  where  only 
two  persons  are  actively  engaged,  while  a 
third  is  present  aiding  and  abetting  them. 
State  V.  Straw,  33  Maine,  554. 

14.  But  where  an  individual  is  engaged 
in  acts  of  violence,  and  others  stand  by  in- 
citing him  to  commit  them,  it  is  not  a  riot. 
Scott  V.  U.  S.  1  Morris,  142. 

15.  A  person  who  commences  a  riot,  but 
abandons  it  before  it  is  finished,  is  liable  for 
the  whole.     State  v.  Blair,  13  Rich.  93. 

16.  Neglecting  to  suppress.     In  Penn- 


sylvania, a  justice  of  the  peace  was  held 
liable  to  indictment  for  not  trying  to  sup- 
press a  riot.  Resp.  v.  Montgomery,  1  Yeates, 
419. 

2.  Indictment. 

17.  Must  state  facts.  An  indictment 
for  riot  must  set  out  fully  and  clearly  all  the 
facts  constituting  the  offense.  Whitesides 
V.  People,  Breese,  4. 

18.  Must  charge  unlawful  assemblage. 
An  indictment  for  a  riot  cannot  be  sustained 
where  it  contains  no  proper  allegations  of 
the  assembling  of  three  or  more  persons. 
Com.  V.  Gibney,  2  Allen,  150. 

19.  The  indictment  must  allege  an  unlaw- 
ful assembly  or  set  forth  circumstances 
showing  that  such  was  its  character.  State 
V.  Stalcup,  1  Ired.  30;  Mc Waters  v.  State, 
10  Mo.  167.  It  need  not  be  alleged  that  the 
acts  were  to  the  terror  of  the  people  when 
there  is  a  charge  of  unlawful  acts  riotously 
committed.  Com.  v.  Runnels,  10  Mass.  518. 
It  is  sufficient  to  charge  that  the  defendants 
assembled  "  with  force  and  arms,"  and  being 
so  assembled  committed  acts  of  violence, 
without  repeating  the  words  force  and  arms, 
lb. 

20.  An  indictment  for  riot  need  not  al- 
lege that  a  proclamation  under  the  riot  act 
was  made,  or  that  the  defendants  assembled 
to  aid  each  other  in  the  execution  of  an  act 
of  a  private  nature,  or  that  tlie  act  for  which 
they  assembled  was  consummated,  or  that 
they  assembled  to  do  the  act  which  it  is 
averred  they  did  do.  An  indictment  is  not 
bad  for  duplicity  which  charges  a  riotous 
assembly  and  an  act  of  violence.  State  v. 
Russell,  45  New  Hamp.  83. 

21.  Names  of  the  defendants.  The  riot 
need  not  be  charged  to  have  been  com- 
mitted by  three  persons  named.  It  is  suffi- 
cient to  name  those  who  are  known,  and  to 
allege  that  the  others  are  unknown.  State 
V.  Brazil,  1  Rice,  257;  State  v.  Calder,  2 
McCord,  462. 

22.  Description  of  property.  An  indict- 
ment for  a  riot  in  pulling  down  a  dwelling- 
house,  and  for  breaking  and  entering  the 
house,  must  state  whose  house  it  is.  If  a 
person  occupy  a  dwelling-house  as  the  wife, 


544 


EIOT. 


Indictment. 


Trial. 


Evidence. 


guest,  servant  or  part  of  the  family  of  an- 
other, it  is  in  law  the  occupation  of  such 
other  person,  and  must  be  so  charged  in  the 
indictment.     State  v.  Martin,  3  Murj)hy,  533. 

23.  Averment  of  violence.  An  indict- 
ment for  a  riot  with  with  "an  intent  to 
make  an  assault,"  must  allege  that  it  was 
"with  force  and  violence."  It  is  not  suffi- 
cient to  charge  it  to  have  been  "  with  force 
and  aiTas,"     Martin  v.  State,  9  Mo.  283. 

24.  Averment  of  terror.  Where  the  in- 
dictment charges  the  going  about  armed 
without  committing  any  acts  of  violence,  the 
words  "  to  the  terror  of  the  people  "  are  neces- 
sary, the  offense  in  such  case  consisting  in 
terrifying  the  people.  State  v.  Brazil,  1 
Rice,  257. 

25.  Averment  of  purpose.  An  indict- 
ment for  riot  is  sufficient  which  does  not 
charge  any  other  unlawful  purpose  than  that 
of  disturbing  the  peace.  State  v.  Renton, 
15  New  Hamp.  169. 

26.  Indorsement  of  name  of  prosecutor. 
In  Missouri,  when  the  name  of  the  prosecutor 
is  not  indorsed  on  an  indictment  for  a  riot, 
the  objection  may  be  first  raised  in  the  Su- 
preme Court  on  appeal.  Mc Waters  v.  State, 
10  Mo.  167. 

3.  Trial. 

27.  Defendants  not  entitled  to  be  tried 
separately.  In  South  Carolina,  where  sev- 
eral were  jointly  indicted  for  riot  and 
assault,  the  court  refused  to  permit  them 
to  be  tried  separately.  State  v.  Berry,  1 
Bay,  316.  It  was  otherwise  in  Tennessee. 
State  V.  Allison,  3  Yerg.  428. 

28.  In  New  Yorii,  where  an  indictment 
against  several  charges  a  riot  and  riotous 
assault  and  battery,  tlie  accused  are  not 
entitled  to  demand  separate  trials,  but  it  is 
in  the  discretion  of  the  court  to  try  them 
jointly  or  separately.  Such  acts  do  not 
amount  to  felony  at  common  law,  but  to  a 
misdemeanor,  and  are  not  within  the  statute 
(3  R.  S.  5th  ed.  970,  §  24),  which  applies 
to  persons  who  shall  assault,  &c.,  "with 
knife,  dirk,  dagger  or  other  sharp  dangerous 
weapon.     People  v.  White,  55  Barb.  606. 

4.   Evidence. 

29.  Order  of  proof.     In  proving  the  guilt 


of  the  defendants  on  an  indictment  for  riot, 
the  regular  way  is  first,  to  show  the  combi- 
nation, and  then  what  was  done  in  pursuance 
of  the  unlawful  design.  But  it  is  discre- 
tionary with  the  judge  to  prescribe  the  order 
of  proofs  in  each  particular  case,  and  if  he 
deems  it  expedient  to  permit  the  prosecution 
first  to  prove  the  riotous  acts,  it  will  only  be 
aftej  the  whole  case  on  the  part  of  the  State 
has  been  openly  stated,  and  the  prosecution 
has  undertaken  to  connect  the  defendants 
with  the  acts  done.  It  will,  however,  be 
sufficient  to  fix  the  guilt  of  any  defendant, 
if  it  be  proved  that  he  joined  himself  to  the 
others  after  the  riot  began,  or  encouraged 
them  by  words,  signs,  or  gestures,  or  other- 
wise took  part  in  their  proceedings.  Peo- 
ple V.  White,  55  Barb.  606. 

30.  Burden  of  proof.  The  following  in- 
struction is  erroneous :  That  in  riotous  and 
tumultuous  assemblies,  all  who  are  present 
and  not  actually  assisting  in  the  suppression 
in  the  first  instance,  are  in  presumption  of 
law  participants,  and  bound  to  prove  their 
non-interference.  State  v.  McBride,  19  Mo. 
239. 

31.  Proof  of  possession.  Under  an  in- 
dictment for  a  riot  and  forcible  trespass  in 
entering  a  man's  dwelling-house,  he  being 
in  the  actual  possession  thereof,  and  taking 
therefrom  his  personal  proj)erty,  it  need 
not  be  proved  that  the  prosecutor  had  a 
right  to  the  property ;  and  evidence  tending 
to  show  his  possession  is  admissible.  State 
V.  Bennett,  4  Dev.  &  Batt.  43. 

32.  An  indictment  for  a  riot  and  forcible 
trespass  on  the  land  of  a  person,  will  not  be 
supported  by  proof  that  he  is  the  owner  of 
the  land,  but  that  it  was  then  in  the  posses- 
sion of  his  tenant.  The  indictment  should 
charge  that  the  offense  was  committed  on 
land  in  the  possession  of  the  tenant.  State 
V.  Wilson,  1  Ired.  33. 

33.  An  indictment  for  riot  charged  "  the 
pulling  down,  breaking,  removing  and  de- 
stroying the  dwelling-house  of  one  L.  S., 
the  said  L.  S.  being  in  the  peaceful  posses- 
sion thereof."  It  was  proved  on  the  trial 
that  L.  S.  was  a  married  woman,  but  that 
her  husband  did  not  live  with  Iier.  The  de- 
fendants having  been  found  guilty,  a  new 


RIOT.— IIOBBERY 


545 


Evidence. 


Verdict. 


What  Constitutes. 


trial  was  granted.     State  v.  Martin,  3  Mur- 
phey,  533. 

34.  On  the  trial  of  an  indictment  for  a 
riot,  the  possession  of  the  prosecutor  may  be 
proved  by  parol.  State  v.  Wilson,  1  Ired. 
32. 

35.  SuflBciency  of  proof.  On  the  trial  of 
an  indictment  for  riot,  a  verdict  of  guilty 
will  be  sustained,  althougli  the  evidence 
only  showed  an  unlawful  assembly.  State 
V.  Brazil,  1  Rice,  257. 

36.  On  a  trial  for  a  riot,  whether  the  other 
rioters  were  named  in  the  indictment  or  not, 
proof  of  a  riot  in  which  any  two  other  per- 
sons joined  with  the  defendant,  is  sufRcient. 
Com.  V.  Berry,  5  Gray,  93. 

5.  Verdict. 

37.  Where  the  charge  is  for  riot  and  as- 
sault. A  verdict  of  guilty  of  riot,  under 
an  indictment  for  a  riot  and  assault,  is  only 
a  partial  finding,  and  therefore  bad.  State 
V.  Creighton,  1  Nott  &  McCord,  256. 

33.  On  the  trial  of  an  indictment  for 
riot  and  riotous  assault  and  battery  by  four 
persons,  one  of  them  may  be  found  guilty  of 
assault  and  battery  and  the  others  acquitted. 
Shouse  V.  Com.  5  Barr,  83. 


llobbmj, 

1.  What  constitutes. 

2.  Indictment. 

3.  Evidence. 

4.  Verdict. 

1.  What  coNsTiTurES. 

1.  At  commDn  law.  Feloniously  taking 
the  property  of  another  in  his  presence  and 
against  his  will,  by  putting  him  in  fear  of 
immediate  personal  injury,  is  robbery  at 
common  law.  Com.  v.  Holland,  1.  Duvall, 
Ky.  183. 

2.  Need  not  have  been  a  putting  in  fear. 
Robbery  may  be  committed  by  the  felonious 
and  forcible  taking  of  property  from  the 
person  of  another  without  putting  him  in 
fear.  State  v.  Gorham,  55  New  Hamp. 
152. 

3.  Must  have  been  force  or  intimida- 
tion.    To  constitute  robbery,  the  property 


must  be  taken  by  violence  to  the  person  be- 
yond a  simple  assault  and  battery.  The 
violence  must  be  sufRcient  to  force  the  j)er-' 
son  to  part  with  his  property,  not  only  against 
his  will,  but  in  spite  of  his  resistance.  Where 
the  proof  showed  that  the  prisoner  took 
money  from  the  prosecutor  while  they  were 
walking  together  in  a  friendly  manner,  no 
more  force  being  used  than  sufficient  to  pull 
the  money  out  of  the  prosecutor's  pocket; 
that  the  men  had  been  drinking;  and  the 
prosecutor  at  the  time  of  the  act  evidently 
considered  and  treated  the  prisoner's  con- 
duct as  a  joke,  it  was  held  not  to  be  rob- 
bery but  larceny.  McCloskey  v.  People,  5 
Parker,  299. 

4.  On  a  trial  for  robbery,  the  following 
charge  to  the  jury  was  held  not  to  be  erro- 
neous: "If  you  believe  C.'s  statement  to 
be  true,  that  the  prisoner  put  his  arm 
around  his  neck,  and  violently  and  forcibly 
jerked  him  back,  and  forcibly  and  feloni- 
ously took  from  his  person  his  pocket-book 
and  money,  it  was  a  robbery  with  a  felonious 
intent  and  accompanied  by  violence."  Ma- 
honey  V.  People,  5  N.  Y.  Supm.  N.  S.  329 ; 
affi'd  59  K  Y.  659. 

5.  Merely  snatching  a  watch  from  another 
is  not  robbery.  People  v.  Hall,  6  Parker, 
642.  But  where  the  prisoner,  while  walking 
at  night  with  a  stranger  in  a  city,  suddenly 
snatched  the  stranger's  watch  from  his  vest 
pocket,  breaking  the  guard  chain  about  his 
neck,  exclaiming,  "Damn  you,  I  will  have 
your  watch,"  and  then  ran  away  with  the 
watch,  followed  by  the  stranger,  it  was  held 
tJiat  the  threat,  accompanied  by  the  force, 
made  the  offense  robbery,  although  surprise 
aided  the  force  to  enable  the  prisoner  to  ac- 
complish his  purpose.  State  v.  McCune,  o 
R.  I.  60. 

6.  The  forcible  capture  of  a  citizen's  horses 
by  military  order,  on  neutral  ground,  oc- 
cupied and  controlled  by  rebel  military  au- 
thority, was  held  a  belligerent  act,  and  not 
robbery.  Com.  v.  Holland,  1  Duvall,  Ky. 
182. 

7.  In  Georgia,  by  the  penal  code,  robbery 
may  be  committed  either  by  force  or  intimi- 
dation. By  force  is  meant  actual  personal 
violence,  a   struggle,  and  personal  outrage. 


54G 


ROBBERY. 


What  Constitutes. 


Whea  the  offense  is  committed  by  putting 
in  fear,  it  is  robbery,  though  the  property 
be  taken  under  color  of  a  gift;  but  the 
taking  must  be  against  the  will  of  the  owner. 
The  pi'operty  need  not  have  been  delivered 
coteniporaneously  with  the  assault.  It  is 
sutficient  that  it  was  delivered  afterward 
during  the  continuance  of  the  fear  or  ap- 
prehension.    Long  v.  State,  12  Ga.  293. 

8.  Construction  of  Act  of  Congress.  The 
word  "  rob,"  in  the  act  of  Congress  of 
1825,  §  22,  is  used  as  at  common  law. 
"  Jeopardy "  means  a  well  grounded  ap- 
prehension of  danger  to  life  in  case  of  refusal 
or  resistance.  U.  S.  v.  Wood,  .S  Wash.  C.  C. 
410.  Under  an  indictment  for  robbing  the 
mail  and  putting  the  life  of  the  mail  carrier 
in  jeopardy,  a  sword  or  pistol  in  the  hand 
of  the  robber,  by  the  fear  of  which  the 
robbery  was  effected,  is  a  "dangerous 
weapon,"  although  the  sword  is  not  drawn, 
or  the  pistol  presented.  lb.  Pistols  are 
"  dangerous  weapons,"  within  the  contem- 
plation of  the  act,  without  proof  that  they 
were  loaded.  TJ.  S.  v.  Wilson,  1  Baldw. 
78. 

9.  Threatening  to  accuse  of  crime.  A 
robbery  may  be  committed  by  obtaining 
personal  property  from  the  person,  or  in  the 
presence  of  the  owner,  by  threats  of  a 
groundless  criminal  accusation.  People  v. 
McDaniels,  1  Parker,  198.  But  it  has  been 
held  that  mere  threats  of  a  criminal  prosecu- 
tion, without  force  actual  or  constructive, 
will  not  constitute  robbery,  unless  the  threat 
be  to  prosecute  for  an  unnatural  crime. 
Long  V.  State,  supra. 

10.  In  New  York,  where  A.  threatened 
to  arrest  B.  on  a  charge  of  having  committed 
the  crime  against  nature  (the  charge  being 
without  any  foundation,  and  known  to  be 
so  by  A.),  and  B.,  through  fear  of  such 
threatened  arrest,  was  induced  to  give  A. 
twenty  dollars,  and  a  receipt  for  thirteen 
dollars  which  A.  owed  B.,  and  to  promise 
to  pay  A.  twenty  dollars  more,  it  was  held 
that  A.  was  guilty  of  robbery  in  the  second 
degree.  People  v.  McDaniels,  1  Parker, 
198. 

11.  To  constitute  robbery  through  intimi- 
dation, by  charging  another  with  the  crime 


against  nature,  the  charge  need  not  have 
been  direct,  or  made  in  unequivocal  lan- 
guage. It  is  sufficient  that  the  language 
employed  was  designed  to  communicate 
such  a  charge,  and  was  so  understood  at 
the  time  by  the  person  threatened.     lb. 

12.  Removal  of  property.  In  Massa- 
chusetts, to  constitute  robbery  under  the 
statute  (R.  S.  ch.  125,  §  15),  the  property 
taken  must  have  been  carried  away  by  the 
assailant.     Com.  v.  Clifford,  8  Cusb.  215. 

13.  Property  need  not  be  taken  from 
owner.  To  constitute  robbery,  the  property 
need  not  be  taken  from  the  person  of  the 
real  owner.  It  is  sufficient  if  the  party 
robbed  has  a  general  or  special  property  iu 
or  right  to  the  possession  of  the  goods  taken. 
State  V.  Ah  Loi,  5  Nev.  99 ;  Com.  v.  Clifford, 
supra. 

14.  To  constitute  robbery  in  the  first 
degree,  under  the  statute  of  New  York,  the 
person  from  whom  the  property  is  taken, 
need  not  be  the  owner  of  it.  Brooks  v.^ 
People,  49  N.  Y.  436. 

15.  Must  be  feloniotis  intent.  Tlie  taking 
must  have  been  animo  furandi.  But  force 
or  intimidation  having  been  proved,  the 
animus  furandi  will  be  inferred.  Long  v. 
State,  12  Ga.  293. 

16.  Where  several  persons  make  an  assault 
upon  another,  intending  to  rob  him  of  his 
property,  and  in  the  course  of  a  scuffle  be- 
tween the  parties,  one  of  the  assailants 
snatches  a  pistol  from  him,  their  only  object 
in  getting  possession  of  the  pistol  being  to 
prevent  its  being  used  against  them,  their 
subsequent  caiTying  it  away  and  converting 
it,  would  not  constitute  robbery;  but  other- 
wise, if  their  intention  at  the  time  was  to 
deprive  the  prosecutor  wholly  of  the  pistol, 
although  on  snatching  it,  they  also  intended 
to  prevent  its  being  used  against  them. 
Jordan  v.  Com.  23  Graft.  943. 

17.  In  Massachusetts,  under  the  statute  of 
1818,  ch.  24,  punishing  a  person  who  shall 
rob,  being  armed  with  a  dangerous  weapon 
with  intent  to  kill  or  maim,  or  who  being 
armed,  shall  actually  strike  the  person  rob- 
bed, it  is  sufficient  that  the  robber  had  the 
intent  to  kill  and  main  as  a  means  of  effect- 
ing the  robbery,  if  it  should  become  neces- 


ROBBEKY. 


547 


What  Constitutes. 


Indictment. 


Evidence. 


sary,  although  not  an  intent  to  kill  or  main 
at  all  events;  but  an  intent  merely  to  terrify 
would  not  be  enough  to  constitute  the  chief 
offense  of  the  statute.  Com.  v.  Martin,  17 
Mass.  359.   ' 

18.  All  concerned  are  equally  guilty. 
Where  several  persons  combine  to  commit 
a  robbery,  and  one  only  perpetrates  the  act, 
all  are  constructively  present,  and  equally 
guilty.  State  v.  Heyward,  2  Nott  &  Mc- 
Cord,  312. 

2.  Indictment. 

19.  Averment  of  forca.  An  indictment 
for  robbery  which  alleges  the  stealing,  &c., 
by  force  and  violence,  is  sufficient  at  common 
law,  without  the  averment  that  the  party 
robbed  W3s  put  in  fear.  Com.  v.  Humphries, 
7  Mass.  242. 

20.  An  indictment  for  robbery  is  good 
which  alleges  that  the  property  of  A.  was 
forcibly  taken  from  the  person  of  B.  against 
his  will,  without  averring  tliat  It  was  taken 
without  the  consent  or  against  the  will  of 
A.  or  stating  the  nature  of  B.'s  possession. 
People  V.  Shuler,  28  Cal.  400. 

21.  In  an  indictment  for  highway  robbery, 
it  is  sufficient  to  allege  that  the  property  was 
taken  from  the  person  and  against  the  will 
of  the  owner,  feloniously  and  violently. 
State  V.  Cowan,  7  Ired.  2o9. 

22.  The  averment,  in  an  indictment  for 
robbery,  of  an  intent  to  steal  or  rob  is  not 
sufficiently  made  by  the  words  feloniously 
did  seize,  take,  and  carry  away.  Mathews 
V.  State,  4  Ohio,  N.  S.  539. 

23.  An  indictment  for  robbery,  Ijcing 
armed  with  a  dangerous  weapon,  need  not 
aver  that  the  striking  and  wounding  therein 
charged  were  inflicted  with  the  dangerous 
weapon  with  which  it  was  charged  the  de- 
fendant was  armed  at  the  time  of  the  rob- 
bei'y.     Com.  v.  Mo  wry,  11  Allen,  20. 

24.  Must  charge  a  taking  from  the 
person.  An  indictment  for  robbery  must 
allege  that  the  money  was  taken  from  the 
person  of  another.  Stegar  v.  State,  39  Ga. 
583. 

25.  The  following  indictment  was  held 
fatally  defective:  That  the  defendant  "  did 
feloniously,  forcibly,  violently,  unlawfully. 


and  with  force  of  arms,  and  by  force, threats, 
and  intimidation,  take  from  another,  to  wit, 
from  one  J.  H.,  a  leather  bag  and  purse," 
&c.     People  V.  Beck,  21  Cal.  385. 

26.  An  indictment  for  robbery  which  al- 
leges that  the  defendant  made  an  assault 
upon  A.  and  put  him  in  fear  of  his  life,  and 
did  take,  steal,  and  carry  away  feloniously 
the  money  of  said  A.,  is  insufficient  in  not 
charging  that  the  money  was  taken  from  the 
person  of  A.,  and  against  his  will.  Kit  v. 
State,  11  Humph.  167. 

27.  Averment  of  place.  An  indictment 
for  highway  robbery  may  allege  either  that 
the  robbery  was  committed  in  the  highway, 
or  that  it  was  committed  near  it.  State  v. 
Anthony,  7  Ired.  234. 

28.  Description  of  property  taken.  An 
indictment  for  robbery  need  not  allege  the 
kind  and  value  of  the  property  taken.  State 
V.  Burke,  73  N.  C.  83.  But  describing  the 
property  taken  as  "  ten  dollars  in  money  of 
the  United  States  currency,"  was  held  too 
indefinite.     Crocker  v.  State,  47  Ala.  53. 

29.  Averment  of  ownership  of  property. 
An  indictment  for  robbery  must  state  cor- 
rectly the  ownership  of  the  property  taken, 
as  well  as  the  name  of  the  person  from  whom 
it  was  taken.    Smedly  v.  State,  30  Texas,  214. 

30.  An  indictment  for  robbery  which 
contains  no  allegation  as  to  the  ownership 
of  the  property  taken,  nor  states  that  it  does 
not  belong  to  the  defendant,  is  fatally  de- 
fective.    People  V.  Vice,  21  Cal.  344. 


/ 


3.  Evidence. 

31.  Proof  of  violence.  It  is  not  neces- 
sary to  prove  both  violence  and  putting  in 
fear,  proof  of  either  being  sufficient.  State 
V.  Burke,  73  N.  C.  83. 

32.  Proof  of  putting  in  fea.r.  The 
person  robbed  is  a  competent  witness  to 
prove  that  at  the  time  of  the  robbery  he 
was  terrified.  It  is  not  necessary  to  prove 
actual  fear.  It  is  sufficient  to  show  that  the 
taking  was  under  such  circumstances  as 
would  be  likely  to  create  an  apprehension 
of  danger  in  the  mind  of  a  man  of  ordinary 
experience,  and  induce  him  to  part  with  his 
property  for  the  safety  of  his  person.  Long 
V.  State,  12  Ga.  293. 


548 


ROBBERY 


Evidence. 


33.  Proof  of  concert  of  action.  Where 
several  are  tried  for  robbery,  it  is  not  neces- 
sary that  it  should  be  proved  that  they 
actually  met  and  agreed  to  commit  the 
offense.  Concert  of  action  may  be  shown 
from  circumstances;  and  if,  irom  all  the 
evidence,  the  jury  are  satisfied  that  the 
defendants  acted  together,  it  is  sufficient. 
Miller  v.  People,  39  111.  457. 

34.  Place.  Under  an  indictment  charg- 
ing that  a  robbery  was  committed  in  the 
highway,  the  prosecution  cannot  prove  that 
it  was  near  the  highway.  State  v.  Cowan, 
7  Ired.  239. 

35.  Property  taken.  An  indictment  for 
robbery  charged  tlie  taking  of  certain  money 
and  bank  bills,  ''  to  v.it,  six  dollars  and 
eighty-five  cents  in  bank  bill?,  usually  called 
United  States  legal  tender  notes,  as  follows: 
One  bill  of  the  denomination  of  five  dollars, 
one  bill  of  the  value  of  one  dollar,  and 
eighty-five  cents  in  currency,  usually  known 
and  called  postal  currency."  The  proof  was 
that  the  bills  were  national  bank  bills,  and 
not  United  States  notes,  nor  legal  tender 
notes;  and  that  the  currency  alleged  to 
have  been  stolen  was  what  is  called  frac- 
tional currency,  issued  imder  the  act  of 
Congress  passed  March  3d,  1863  (12  U.  S. 
Stats,  at  Large,  711,  §4).  Held  that  the 
variance  was  fatal.  People  v.  Jones,  5  Lans. 
340. 

36.  Declarations  of  party  injured.  On 
the  trial  of  an  indictment  for  robbery,  a 
statement  by  the  prosecutor  that  he  had 
been  robbed,  made  a  few  minutes  after  the 
crime  was  committed,  is  admissible  in  evi- 
dence as  part  of  the  res  gestm.  State  v. 
Ah  Loi,  5  Isev.  99.  Where,  therefore,  the 
prosecutor  swore  to  being  knocked  down  and 
robbed,  and  other  witnesses  who  came  up 
immediately  were  allowed  to  testify  that  he 
then  told  them  he  had  been  robbed,  it  was 
lield  proper.  Lambert  v.  People,  29  Mich. 
71. 

37.  Where,  on  a  trial  for  robbery,  the 
person  robbed  testified  that  while  walking 
with  the  prisoner,  he  felt  the  prisoner's  hand 
in  his  pocket,  and  charged  the  prisoner  with 
robbing  him,  and  that  the  witness  had  been 
drinking,  but   was  not  so   drunk  as  not  to 


know  what  occurred,  it  was  held  that  the 
witness's  declaration  to  a  third  person,  im- 
mediately after  the  transaction  in  the  pris- 
oner's absence,  that  the  latter  had  taken  his 
watch,  was  admissible  in  evidence  to  show 
that  he  was  not  so  much  under  the  influ- 
ence of  liquor  as  not  to  be  conscious  of  all 
that  took  place.  State  v.  Bryan,  74  N.  C. 
351. 

38.  Suspicious  conduct  of  accused.  It 
is  the  proviuce  of  the  jury  to  determine  from 
the  acts  of  the  defendant,  and  the  surround- 
ing circumstances,  what  the  defendant's 
purpose  was,  in  stopping  persons  on  the 
public  highway  at  eleven  o'clock  at  night, 
with  a  cocked  and  loaded  revolver  presented 
at  short  range.  Such  an  assault,  if  unex- 
plained, would  be  sufficient  to  warrant  a 
conviction  for  an  attempt  to  rob.  Pco2)le  v. 
Woody,  47  Cal.  80. 

39.  The  avowal  of  the  prisoner  before  the 
robbery  was  committed,  of  an  intention  to 
rob  D.;  the  fact  that  the  prisoner  used  vio- 
lence toward  him  on  the  night  of  the  rob- 
bery; and  the  further  fact  that  apart  of  the 
stolen  property  was  found  in  the  prisoner's 
possession,  are  sufficient  evidence  of  guilt 
to  sustain  a  conviction.  Bloomer  v.  People, 
1  N.  Y.  Ct.  of  App.  Decis.  146;  s.  c.  3 
Keyes,  9. 

40.  Attempt  of  prisoner  to  escape.  On 
the  trial  of  four  persons  for  robbery  alleged 
to  have  been  committed  in  taking  money 
from  the  person  of  another,  it  appeared  that 
on  the  arrest  of  the  defendants  no  portion 
of  the  money  was  found  in  their  joossession. 
Held  competent  for  the  prosecution  to  prove 
that  one  of  them  attempted  to  e.scape,  and 
was  pursued  by  the  officer  some  distance,  as 
tending  to  show  that  he  might  have  dis- 
posed of  the  money.  People  v.  Collins,  48 
Cal.  277. 

41.  Situation  of  party  injured.  Proof 
that  the  complainant  on  the  night  of  an 
alleged  robbery,  had  on  his  person  money 
and  other  valuables;  that  he  became  insen- 
sible from  intoxication ;  that  he  was  badly 
injured  in  his  person;  and  that  when  he 
was  restored  to  consciousness  his  property 
was  gone,  and  one  of  bis  pockets  turned 
inside  out,  is  evidence  that  his  property  had 


KOBBERY.— SEAKCH  WARRANT. 


549 


Evidence. 


Verdict.     Can  only  be  Issued  upon  Oath  or  Affirmation. 


been  taken  from  his  person  against  his  will. 
Bloomer  v.  People,  supra. 

42.  Testimony  required  to  prove  corpus 
delicti.  Where  on  a  trial  for  highway  rob- 
bery, the  court  declined  to  instruct  the  jury 
in  regard  to  any  separation  between  the 
circumstances  which  tended  to  prove  the 
corpus  delicti  and  those  which  went  to  iden- 
tify the  guilty  party,  or  to  tell  them  that 
when  the  corpus  delicti  is  attempted  to  be 
shown  by  circumstantial  evidence,  it  must 
be  so  established  that  the  combined  circum- 
stances produce  the  same  degree  of  certainty 
as  positive  proof,  it  was  held  a  ground  for 
setting  aside  the  verdict.  State  v.  David- 
son, 30  Vt.  377. 

43.  Determination  of  felonious  intent. 
On  a  trial  for  robbery,  the  cpiestiou  whether 
or  not  a  felonious  intent  has  been  proved,  is 
to  be  determined  by  the  jury.  People  v. 
Hall,  6  Parker,  642. 

4.  Verdict. 

44.  Cannot  find  defendant  guilty  as  ac- 
cessory after  the  fact.  In  California,  a 
person  charged  in  an  indictment  with  the 
commission  of  robbery,  cannot  be  C(mvicted 
as  accessory  after  the  fact  to  the  robbery. 
People  V.  Gassaway,  28  Cal,  404. 

45.  May  be  for  assault  and  battery.  In 
Virginia,  under  an  indictment  for  robbery 
in  the  common  form,  the  jury  found  the 
defendants  "  not  guilty  of  the  felony 
charged ;  but  guilty  of  an  assault  and 
battery."  Held  that  the  verdict  was  good 
under  the  statute  (Code,  ch.  208,  §  27). 
Hardy  v.  Com.  17  Graft.  592.  And  the 
same  was  held  where  the  charge  was  an 
assault  with  intent  to  kill.  Canada  v.  Com. 
23  lb.  899. 

See  Larceny. 


SabbatI), 

See  Sunday, 


Scavcl)  lUarraut. 

1.  Can  only  be   issued  upon    oath    or 


affirmation.  The  provision  in  the  Consti- 
tution of  the  United  States  that  "  no  war- 
rant shall  issue  but  upon  probable  cause 
supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  to  be  searched, 
and  the  persons  or  things  to  be  seized,"  is  in 
terms  re-enacted  in  the  New  York  bill  of 
rights.     Comfort  v.  Fulton,  S9  Barb.  56. 

2.  In  Maine,  where  it  does  not  appear 
upon  the  face  of  the  proceedings,  that  before 
the  warrant  was  issued  to  search  the  defend- 
ant's dwelling-house  for  intoxicating  liquors, 
the  magistrate  caused  the  testimony  of  the 
witnesses  to  be  signed  and  verified  by  oath 
or  affirmation,  the  warrant  is  fatally  defect- 
ive.    State  V.  Carter,  39  Maine,  262. 

3.  Must  be  in  strict  conformity  with 
the  statute.  A  search  for,  and  seizure  of 
property  not  made  in  the  cases  and  accord- 
ing to  the  exact  mode  prescribed  by  statute, 
is  unlawful.  As  the  direction  of  a  warrant 
is  a  material  part  of  it,  where  the  statute 
contemplates  that  a  search  warrant  shall 
only  be  executed  by  the  sheriff  of  the  county, 
or  a  constable  or  marshal  of  the  town  or  city, 
and  it  is  directed  to  "  any  constable  of  the 
county,"  it  is  void.  People  v.  Holcomb,  3 
Parker,  656. 

4.  In  New  York,  it  has  been  held  ques- 
tionable whether  a  search  warrant  can  be  ex- 
ecuted, or  will  afford  protection  to  an  officer, 
where  it  shows  upon  its  face,  that  the  party 
who  has  the  property  alleged  to  be  stolen  is 
charged  with  the  larceny  of  it,  and  no  war- 
rant for  his  arrest  accompanies  or  is  incor- 
porated in  the  search  warrant.     lb. 

5.  Description  of  place  to  be  searched. 
The  search  wairant  must  contain  as  specific 
a  description  of  the  place  to  be  searched  as 
would  be  required  in  a  deed  of  land.  The 
complaint  and  warrant  must  be  construed 
together;  and  if  the  descriptive  words  are 
sufficient  to  designate  the  place  to  be 
searched  independent  of  the  repugnant 
words,  the  latter  Avill  be  rejected.  State 
V.  Bartlett,  47  Maine,  388. 

6.  Where  a  search  warrant  stated  that  the 
complainant  "  suspects  that  the  stolen  prop- 
erty is  concealed  in  the  stable  of  C,  on  the 
east  side  of  the  canal  in  the  village  of  W., 
in  said  county,  known  as  the  red  barn,"  and 


550 


SEARCH   WARRANT.— SEDUCTION, 


Right  of  Officer  to  enter  Apartment  of  Third  Person.     Offense,  when  Committed. 


directed  the  officer  "to  search  the  place 
where  the  said  property  is  suspected  to  be 
concealed,"  it  was  held  void  in  not  desig- 
nating particularly  the  place  to  be  searched. 
People  V.  Holcomb,  supra. 

7.  The  complaint  prayed  for  process  to 
search  "  the  store  occupied  by  R.,  situated 
on  the  northerly  side  of  F.  street,  being 
numbered  197  on  said  street.  The  warrant 
directed  the  officer  to  search  the  store,  giving 
the  same  description,  except  that  the  num- 
ber was  stated  to  be  179.  It  was  proved 
that  R.  occupied  only  one  store,  and  that 
his  store  was  on  the  northerly  side  of  F. 
street,  number  197.  Held  that  the  descrip- 
tion in  the  warrant  was  sufficient  to  justify 
the  search.  State  v.  Robinson,  49  Maine, 
385. 

8.  Right  of  officer  to  enter  apartment 
of  third  person.  A.,  who  occupied  a  house, 
in  which  he  kept  liquors  for  sale  in  violation 
of  law,  had  a  barrel  of  ale  in  a  room  of  the 
same  house,  which  was  occupied  by  B.,  but 
with  a  faucet  passing  through  a  partition 
into  the  apartments  of  A.  A  search  warrant 
liaving  been  issued  to  an  officer,  requiring 
him  to  enter  A.'s  house  and  search  for  and 
seize  liquors,  the  officer  entered  B.'s  room 
and  removed  the  barrel  of  ale.  Held  that 
he  was  justified  in  so  doing,  and  that 
B.,  in  resisting  him,  was  guilty  of  assault 
and  battery.  Com.  v.  Leddy,  105  Mass. 
381. 

9.  Force  and  effect  of  officer's  return. 
Where  the  return  upon  a  warrant  shows  that 
the  officer  seized  liquors  and  arrested  the 
defendant  by  virtue  of  it,  the  latter  cannot 
claim  that  his  premises  were  searched  with- 
out a  warrant,  or  that  the  i^roceedings 
should  be  solely  against  the  liquors.  State 
V.  McCaflferty,  63  Maine,  223. 

10.  The  officer's  return  upon  search  and 
seizure  process  is  admissible  in  evidence  as 
a  part  of  the  record  of  judgment;  and  the 
record  of  conviction  is  proof  that  the  de- 
fendant had  all  the  liquors  described  in  the 
officer's  return,  with  the  intention  of  selling 
the  same  in  violation  of  law.  State  v.  Lang, 
63  Maine,  215. 

See  Officer. 


Scbuctiou. 

1.  Offense,  when  committed. 

2.  Indictment. 
8.  Evidence. 

1.  Offense,  when  committed. 

1.  Meaning  of.  The  word  "seduction," 
used  in  reference  to  a  man's  conduct  toward 
a  female,  ex  vi  termini,  implies  sexual  inter- 
course between  them ;  and  where  a  statute 
provides  that  "  every  person  who  shall 
seduce  a  female,"  «fcc.,  without  mentioning 
the  word  fornication,  the  latter  will  be  im- 
plied.    State  V.  Bierce,  27  Conn.  319. 

2.  Must  be  promise,  or  deception.  A 
person  cannot  be  convicted  of  seduction  in 
the  absence  of  proof  of  any  artifice,  promise, 
flattery  or  deception  employed  by  him. 
State  v.   Crawtord,  31:  Iowa,  40. 

3.  Promise  may  be  conditional.  On  the 
trial  of  an  indictment  for  seduction  under 
promise  of  marriage,  it  is  not  error  in  the 
court  to  refuse  to  charge  that  if  the  promise 
to  marry  was  not  an  existing  one,  but  de- 
pendent upon  the  result  of  the  illicit  inter- 
course as  furnishing  evidence  that  the  female 
had  been  previously  virtuous,  the  accused 
could  not  be  convicted.  Boyce  v.  People, 
55  N.  Y.  644,  Church,  Ch.  J.,  and  Rapallo, 
J.,  dissenting. 

4.  Need  not  be  pregnancy.  A  convic- 
tion of  seduction  under  promise  of  marriage, 
may  be  had  under  the  New  York  statute, 
notwithstanding  pregnancy  did  not  result 
from  the  intercourse.  Cook  v.  People,  2  N. 
Y.  Supm.  N.  S.  404. 

5.  Chastity  of  female.  The  words  "  pre- 
vious chaste  character,"  in  the  statute  of 
New  York  to  punish  seduction,  mean  actual 
personal  virtue.  People  v.  Kenycn,  5  Parker, 
254 ;  26  N.  Y.  203 ;  Crozier  v.  People,  1 
Parker,  453.  A  female  is  not  a  virtuous 
woman  within  the  meaning  of  the  statute  of 
Georgia  punishing  seduction,  whose  mind  is 
corrupted  and  defiled  by  lustful  desires  and 
unchaste  wishes,  although  j^revious  to  her 
seduction  she  never  had  carnal  intercourse 
with  a  man.  "Wood  v.  State,  48  Ga.  192, 
Warren,  Ch.  J.,  dissenting. 

6.  In  Iowa,  although  the  female  may  have 


SEDUOTIOK. 


S51 


Offense,  when  Committed. 


Indictment. 


had  previous  sexual  intercourse  with  the 
defendant,  yet  if  she  had  reformed,  and  was 
chaste  in  fact  at  the  time  of  the  seduction, 
such  latter  ofl'ense  is  within  the  statute. 
State  V.  Carron,  18  Iowa,  372.  And  in 
Minnesota,  on  a  tiial  for  seduction,  the 
following  instruction  was  held  proper:  "If 
the  jury  find  that  the  defendant  had  carnal 
intercourse  with  the  prosecutrix  at  the  time 
and  place  charged  in  the  indictment,  under 
a  promise  to  marry,  they  may  convict,  al- 
though she  may  have  had  carnal  connection 
with  tlie  defendant  previously,  provided  she 
had  reformed  and  was  chaste  at  the  time  of 
the  commission  of  the  offense."  State  v. 
Timmens,  4  Minn.  325. 

7.  Intention  of  defendant.  It  is  no  de- 
fense to  an  information  for  seduction,  that 
the  only  inducement  used  by  the  defendant 
to  prevail  on  the  female  to  surrender  to  him 
iier  chastity,  was  a  promise  of  marriage  on 
his  part  sincerely  made,  and  intended  by 
him  to  be  performed  ;  nor  that  the  female, 
subsequent  to  the  illicit  connection  between 
her  and  the  defendant,  misconducted  herself. 
State  V.  Bierce,  27  Conn.  319. 

8.  In  Iowa,  on  the  trial  of  an  indictment 
for  taking  and  enticing  away  an  unmarried 
female  under  the  age  of  fifteen  years,  from 
and  without  the  consent  of  the  person  having 
Ihe  legal  charge  of  her,  for  the  purpose  of 
prostitution,  it  was  held  the  duty  of  the 
court  to  charge  that  "if  the  defendant  only 
intended  to  obtain  the  body  of  the  female 
for  his  own  personal  carnal  enjoyment,  and 
no  more,  the  act  did  not  amount  to  her 
prostitution  in  the  eye  of  the  law."  State 
v.  Ruhl,  8  Iowa,  447. 

9.  Who  may  commit  the  offense.  An 
individual  v/ho  is  old  enough  to  be,  and  is 
the  father  of  a  child  begotten  upon  the  body 
of  the  prosecutrix  under  a  promise  of  mar- 
riage, is  "  a  man  "  within  the  statute  of  New 
York  punishing  seduction.  People  v.  Ken- 
yon,  5  Parker,  254 ;  26  N.  Y.  203. 

10.  By  married  man.  It  is  a  good  defense 
to  an  indictment  for  the  seduction  of  an 
unmarried  female  under  the  statute  of  New 
York  of  1848,  that  at  the  time  of  committing 
the  acts  charged,  the  defendant  was,  and 
for  five  years  previous  thereto  had  been,   a 


married  man,  having  a  wife  and  family,  with 
whom  he  was  then  living,  all  of  which,  at 
time  of  the  alleged  promise  and  seduction 
was  well  known  to  the  prosecutrix.  People 
V.  Alger,  1  Parker,  333. 

11.  Custody  of  female.  Under  an  in- 
dictment for  enticing  an  unmarried  female 
under  the  age  of  fifteen  years  away  from 
the  jjerson  having  legal  charge  of  her,  for 
the  purpose  of  prostitution,  if  her  parents 
are  dead  and  no  guardian  has  been  appoint- 
ed, those  with  whom  she  resides  as  a  mem- 
ber of  the  family,  and  who  have  her  under 
their  care  and  protection,  will  be  deemed  to 
have  "  the  legal  charge  of  her  person." 
State  V.  Ruhl,  8  Iowa,  447. 

12.  Statute  of  limitations.  The  defend- 
ant was  tried  on  an  information  charging 
him  with  having  on  the  3d  of  March,  1862, 
seduced  and  debauched  one  M.  T,,  an  un- 
married woman;  the  statute  providing  that 
no  prosecution  shall  be  commenced  after 
one  year  from  the  time  of  committing  the 
offense.  It  was  proved  that  the  first  sexual 
intercourse  between  the  parties  took  place 
July  8th,  1860 ;  that  the  complainant  yielded 
in  consequence  of  the  defendant's  promise  to 
marry  her;  that  the  promise  of  marriage 
was  renewed  at  every  act  of  intercourse ; 
that  the  improper  intercourse  was  afterward 
repeated  at  short  intervals,  but  was  twice 
suspended  during  several  months,  and  finally 
renewed  and  continued  until  April,  1862; 
and  that  she  became  pregnant  from  an  in- 
tercourse which  occurred  on  or  about  the 
day  charged  in  the  information.  Held  that 
the  prosecution  was  not  barred  by  the  statute 
of  limitations,  and  that  the  defendant  was 
properly  convicted*.  People  v.  Millspaugh, 
11  Mich.  278,  Martin,  Ch.  J.,  dissenting. 

13.  But  in  New  York,  where  the  illicit 
intercourse  began  four  or  five  years  before 
the  finding  of  the  indictment,  and  continued 
until  witbin  two  years,  it  was  held  not  to  be 
a  seduction  within  two  years  before  the 
finding  of  the  indictment  within  the  statute 
of  1848.     Saftbrd  v.  People,  1  Parker,  474. 

2.  Indictment. 

14.  Must  aver  that  female  was  seduced. 
In  Georgia,  an  indictment  under  the  statute 


552 


SEDUCTION. 


Indictment. 


Evidence. 


punishing  seduction,  is  not  good,  which 
simpl}'  charges  that  the  defendant  had,  by 
persuasion  and  promise  of  marriage,  pro- 
cured a  virtuous  unmarried  woman  to  have 
illegal  sexual  intercourse  with  him.  It  must 
be  alleged  that  the  woman  has  been  "  se- 
duced and.  induced  to  submit  to  the  lustful 
embraces  of  the  seducer,  and  to  allow  him 
to  have  carnal  connection  with  her."  Wood 
V.  State,  48  Ga.  193. 

15.  Need  not  allege  a  valid  promise- 
An  indictment  for  seduction,  under  the 
statute  of  New  York  of  1648,  is  sufficient, 
which  avers  that  the  female  was  seduced 
under  promise  of  marriage,  without  alleging 
a  mutual  or  valid  promise;  and  the  defend- 
ant may  be  convicted,  although  the  promise 
was  in  fact  a  false  pretense,  and  one  which 
the  seducer  knew  it  was  not  in  his  power  to 
perform.     Crozier  v.  People,  1   Parker,  454. 

3.  Evidence.      \^ 

16.  Promise  of  marriage.  The  seduced 
female  is  competent  to  prove  that  the  prom- 
ise of  marriage  was  the  inducement  to  the 
illicit  intercourse.  Where  nothing  appears 
to  the  contrary,  the  defendant  will  be 
deemed  to  have  been  of  full  age  so  far  as 
may  affect  his  promise.  Kenyon  v.  People, 
26  N.  Y.  203. 

17.  On  the  trial  of  an  indictment  for 
seducing  a  female  under  promise  of  mar- 
riage, the  following  charge  to  the  jury  is 
unobjectionable:  That  if  they  were  fully 
satisfied  from  the  evidence,  that  the  defend- 
ant promised  to  marry  the  prosecutrix  if  she 
would  have  carnal  connection  with  him,  and 
she  believing  and  confiding  in  such  promise, 
and  intending  on  her  part  to  accept  such 
oifer  of  marriage,  did  have  such  carnal  con- 
nection, it  is  a  sufficient  promise  of  marriage 
under  the  statute.  Kenyon  v.  People,  supra; 
s.  p.  Boyce  v.  People,  55  N.  Y.  644.  A 
mutual  promise  on  the  part  of  the  female 
seduced,  is  implied,  if  she  yields  to  the 
solicitations  of  the  seducer,  made  under  his 
promise  to  marry.     lb. 

18.  Corroboration  of  prosecutrix.  In 
New  York,  on  the  trial  of  an  indictment  for 
seduction  under  promise  of  marriage,  it  is 
only  necessary   that   the  female  should  be 


corroborated  as  to  the  facts  constituting  the 
crime,  and  not  as  to  her  having  been  unmar- 
ried and  of  previous  chaste  character.  Ken- 
yon V.  People,  26  N.  Y.  203 ;  s.  c.  5  Parker,, 
254.  There  need  not  be  direct  and  positive 
corroborative  evidence  as  to  any  of  the 
material  facts ;  but  it  is  sufficient,  if  the 
female  seduced  is  corroborated  by  circum- 
stances. Boyce  v.  People,  55  N.  Y.  644, 
Where  the  defendant  was  a  frequent  visitor 
at  the  house  of  the  mother  of  the  prosecu- 
trix, waited  on  her  to  balls  and  parties,  fre- 
quently took  her  to  ride,  and  when  the 
mother  spoke  to  him  about  keeping  com- 
pany with  her  daughter,  said  his  motives 
were  good,  it  was  held  that  there  was 
evidence  tending  to  show  that  he  had  made 
her  a  promise  of  marriage.  And  it  having- 
also  been  proved  that  she  was  delivered  of 
a  child,  and  that  there  was  opf>ortunity  for 
the  defendant  to  have  become  the  father  of 
it  if  there  were  such  promises  as  she  had 
sworn  to,  it  was  held  that  the  fact  of  the 
illicit  connection  was  sufficiently  establish- 
ed.    People  V.  Kenyon,  supra. 

19.  But  in  Minnesota,  a  conviction  cannot 
be  had  under  the  statute  against  seduction,, 
upon  the  testimony  of  the  woman  seduced, 
unless  she  is  corroborated  upon  every  mate- 
rial point,  to  wit:  the  promise  to  marry,  the 
seduction  under  such  promise,  and  the 
previous  chaste  character  of  the  female.. 
State  V.  Timmins,  4  Minn.  325. 

20.  Repetition  of  offanse.  On  the  trial 
of  an  indictment  for  seduction  under  prom- 
ise of  marriage,  after  the  prosecutrix  had 
testified  to  the  commission  of  the  offense 
on  the  2d  of  July,  as  charged  in  the 
first  count  of  the  indictment,  the  prosecu- 
tion was  permitted,  against  the  objection  of 
the  defendant,  to  prove  the  offense  charged 
in  the  second  count  of  the  indictment  to 
have  been  committed  on  the  19th  of  August. 
Held  error,  it  being  impossible  that  the 
offense  should  have  been  twice  committed 
against  the  same  female.  Cook  v.  People,  3 
N.  Y.  Supm.  N.  S.  404. 

21.  Moral  character  of  prosecutrix. 
On  a  trial  for  seduction,  it  is  not  error  in  the 
court  to  refuse  to  allow  the  defendant  to 
prove  that  the  reputation  of  the  prosecutrix 


SEDUCTION.— SENTENCE. 


553 


Evidence. 


Duty  of  Court  to  Pronounce. 


for  morality  and  virtue  in  the  neighborhood 
where  she  resides,  is  bad;  for  the  reason 
that  her  reputation  in  that  regard,  would  be 
injuriously  affected  by  the  seduction  itself. 
People  V.  Brewer,  27  Mich.i  134  ;  s.  c.  2 
Green's  Crim.  Eeps.  562. 

22.  On  the  trial  of  an  indictment  for 
seduction  under  promise  of  marriage,  the 
defendant  cannot  show  that  the  character 
of  the  prosecutrix  for  chastity  was  bad,  by 
general  reputation.  He  must  prove  specific 
acts.  And  the  same  as  to  the  house  of  the 
mother  of  the  prosecutrix;  its  character 
cannot  be  proved  by  general  reputation,  but 
only  by  specific  acts.  People  v.  Kenyon,  5 
Parker,  254 ;  30  N.  Y.  203.  See  Safford  v. 
People,  1  Parker,  474. 

23.  In  Iowa,  under  the  statute  jiunishing 
seduction  (Code,  §  2586),  it  is  not  necessary 
in  order  to  establish  the  unchaste  character 
of  the  female,  to  prove  that  she  had  been 
previously  guilty  of  sexual  intercourse,  but 
only  to  show  that  she  was  lewd  in  her 
behavior.  Andre  v.  State,  5  Iowa,  389. 
But  in  the  absence  of  proof  to  the  contrary, 
the  chastity  of  the  female  will  be  presumed, 
lb.  See  Boak  v.  State,  lb.  430;  State  v. 
Higdon,  32  lb.  263. 

24.  On  the  trial  of  an  indictment  for 
seduction  under  promise  of  marriage,  evi- 
dence is  inadmissible  to  show  that  after  the 
alleged  seduction  she  had  been  guilty  of 
fornication  with  another  person.  Boyce  v. 
People,  55  N.  Y.  644. 

25.  Interrogation  of  prosecutrix  as  to 
previous  acts.  On  the  trial  of  an  indict- 
ment for  seduction,  the  prosecutrix  may  be 
interrogated  on  her  cross-examination  as  to 
her  prior  unchaste  acts  and  connection 
before  the  date  of  the  alleged  offense  with 
men  other  tlian  the  defendant.  State  v. 
Sutherland,  30  Iowa,  570. 

26.  Testimony  to  impeach  prosecutrix. 
On  the  trial  of  an  indictment  for  seduction 
under  promise  of  marriage,  the  prosecutrix 
testified  that  she  had  never  had  any  sexual 
intercourse  with  any  other  person  than  the 
defendant.  UeUl  that  the  defendant  had  a 
right  to  contradict  her,  either  directly  l)y 
proof  of  such  intercourse  with  others,  or  by 
facts  from  which  the  jury  might  infer  the 


same,  and  that  for  the  latter  purpose  it  was 
proper  to  show  wanton  or  lewd  acts.  Peo- 
ple v.  McArdle,  5  Parker,  180. 

27.  It  is  error  to  refuse  to  charge  the  jury 
on  a  trial  for  seduction,  that  one  reason  for 
disbelieving  the  prosecutrix  is  the  fact  that 
in  her  testimony  on  the  trial  she  disclosed 
acts  done,  and  habits  of  life  pursued  by  her, 
which  exhibited  moral  turpitude.  Wood  v. 
State,  48  Ga.  193. 

28.  Although  on  a  trial  for  seduction  the 
admission  of  the  prosecutrix  that  she  had 
had  sexual  intercourse  with  another  person 
than  the  defendant,  may  be  used  as  im- 
peaching testimony  after  the  proper  founda- 
tion has  been  laid  for  its  introduction,  yet 
such  evidence  is  not  admissible  when  not 
offered  in  connection  with  other  proofs  to 
show  a  habit  of  lewd  talk  and  conversation, 
but  for  the  inferences  which  might  be 
drawn  from  the  single  fact  6f  the  admission 
that  she  was  not  at  the  time  in  the  path  of 
virtue.  People  v.  Brewer,  27  Mich.  134; 
s.  c.  2  Green's  Crim.  Rei^s.  562. 

29.  Proof  of  good  character  of  prosecu- 
trix. On  the  trial  of  an  indictment  for  se- 
duction, three  or  four  witnesses  for  the 
defendant  testified  to  acts  of  lewdness  on  the 
part  of  the  prosecutrix ;  and  one  witness 
stated  that  on  two  occasions  he  had  sexual 
connection  with  her.  Held  competent  for 
the  prosecution  to  prove  that  the  prosecu- 
trix had  a  good  character  for  chastity,  was 
correct  and  modest  in  her  deportment,  and 
that  until  the  occurrence  with  the  defend- 
ant she  was  considered  virtuous.  State  v. 
Shean,  32  Iowa,  88,  Dey,  J.,  dissenting. 

See  Abduction  ;  Incest  ;  Lasciviotjsness. 


0clf- defense. 

See  Assault  and  battery;  Homicide. 


Sentence. 

1.  Duty  of  court  to  pronounce.  Where 
a  general  verdict  of  guilty  is  rendered,  the 
court  must  either  pronounce  sentence  on  the 
verdict,  or  grant  a  new  trial.     It  cannot  set 


554 


SENTENCE. 


Competency  of  Court. 


Delaying  Sentence. 


aside  the  verdict  and  direct  a  judgment  of 
acquittal  to  be  entered  for  the  defendant. 
State  V.  Curtis,  6  Ired.  247. 

2.  Competency  of  court.  Sentence  of 
death  being  about  to  be  passed  on  the  pris- 
-oner  by  a  judge  holding  the  United  States 
Circuit  Court  alone,  in  the  absence  of  his  as- 
sociate, it  was  objected  by  the  prisoner's 
counsel  that  this  could  not  be  done,  for  the 
reason  that  the  trial  had  been  conducted  be- 
fore both  judges.  Held  that  it  was  com- 
petent for  the  court  to  pass  the  sentence 
Avhen  held  by  a  single  judge.  U.  S.  v. 
Gordon,  5  Blatchf  18. 

3.  In  California,  at  the  close  of  the  testi- 
mony on  a  trial  for  murder,  the  district 
judge  of  the  14th  district,  who  had  thus  far 
presided  at  the  trial,  was  obliged  to  go 
home  on  account  of  dangerous  illness  in  his 
family.  It  was  thereupon  agreed  by  the 
})arties  that  the  judge  of  the  6th  judicial 
district  might  sit  during  the  remainder  of 
that  trial.  The  latter  accordingly  held  the 
court,  heard  the  argument,  charged  the 
jury,  and  received  the  verdict.  Before  the 
day  appointed  for  passing  sentence,  the 
judge  of  the  6th  judicial  district  resumed 
his  seat  on  the  bench  and  pronounced  the 
judgment  of  the  court.  Held  not  improiier. 
People  V.  Henderson,  28  Cal.  465. 

4.  Delaying  sentence.  If,  after  verdict 
and  before  sentence,  the  prisoner  becomes 
insane,  it  is  good  cause  for  staying  sentence. 
State  V.  Brinyea,  5  Ala.  241. 

5.  In  New  York  it  has  been  held  that  the 
Court  of  Oyer  and  Terminer  ought  not  to 
delay  the  sentence  in  order  to  have  the  de- 
cision reviewed  by  certiorari,  except  in 
cases  of  great  doubt  and  difficulty,  but 
should  leave  the  prisoner  to  his  writ  of  er- 
ror.    Colt  V.  People,  1  Parker,  611. 

6.  In  New  York  it  can  seldom  become 
necessary  to  delay  the  sentence,  for  the  rea- 
son that  the  governor  is  authorized,  upon 
conviction  of  the  prisoner  for  a  capital  of- 
fense, to  take  the  opinion  of  the  attorney- 
general,  and  of  the  high  judicial  ofBcers  of 
the  State,  before  he  permits  the  execution  cf 
the  sentence,  and  to  suspend  it  if  there  are 
doubts  as  to  its  legality,  until  the  case  can 


be  taken  to  the  Supreme  Court  on  a  writ  of 
error.     Colt  v.  People,  supra. 

7.  In  Massachusetts,  where  a  juror  did 
not  agree  to  find  the  prisoner  guilty  of 
murder,  but  only  of  manslaughter,  and 
through  mistake  assented  to  a  verdict  for 
murder,  it  was  held  no  cause  for  delaying 
sentence.     Com.  v.  Drew,  4  Mass.  391. 

8.  In  Alabama,  the  statute  of  1836  pro- 
vided that  in  capital  cases,  whenever  points 
were  reserved  as  novel  and  difficult  for  the 
decision  of  the  court,  the  execution  of  the 
judgment  should  be  postjjoned  to  a  time  not 
less  than  twenty-five,  nor  more  than  forty 
days  after  the  commencement  of  the  next 
succeeding  term  of  the  Supreme  Court. 
Held  that  a  prisoner  who  was  sentenced  un- 
der such  circumstances  was  entitled  to  the 
delay  given  by  the  statute,  and  that  a  sen- 
tence fixing  an  earlier  day  for  his  execution 
was  erroneous.     John  v.  State,  2  Ala.  290. 

9.  Postponement  of  sentence  after  plea 
of  guilty.  A  prisoner  pleaded  guilty  to  an 
indictment,  and  the  prosecuting  attorney 
did  not  move  for  sentence,  but  the  indict- 
ment was  filed  and  the  defendant  permitted 
to  go  at  large  on  a  recognizance  to  appear 
when  sent  for.  After  several  intervening 
terms  of  the  court  the  prosecuting  attorney 
moved  for  sentence,  which  it  was  held 
might  then  be  passed.  Com.  v.  Chase, 
Thach.  Crim.  Cas.  267. 

10.  Original  indictment  not  necessary. 
Possession  of  the  original  indictment  is  not 
essential  to  the  sentencing  of  the  prisoner. 
Where  the  indictment  has  been  stolen  from 
the  files,  its  place  may  be  supplied  by  a 
copy.     Mount  v.  State,  14  Ohio,  295. 

11.  When  accused  must  be  present.  To 
sustain  a  conviction  for  felony,  the  record 
must  affirmatively  show  that  the  prisoner 
was  personally  present  in  court  when  he  was 
ti'ied,  and  when  sentence  was  pronounced 
against  him.     Graham  v.  State,  40  Ala.  659. 

12.  Judgment  for  corporal  punishment 
cannot  be  rendered  against  the  prisoner  in 
his  absence,  and  the  record  must  affirma- 
tively show  that  he  was  present  in  court. 
Young  V.  State,  39  Ala.  357;  Peters  v. 
State,  lb.  681 ;  Gibson  v.  State,  lb.  693.  But 
it  is  not  necessary  that  the  fact  that  he  was 


SENTENCE. 


555 


Defendant's  Presence  Unnecessary. 


When  Prisoner  need  not  be  Interrogated. 


present  should  be  stated  in  express  terms  iu 
the  record.  It  is  sufficient  if  it  can  be  col- 
lected therefrom  by  fair  intendment.  West 
V.  State,  2  Ala.  212;  Cole  v.  State,  5  Eng. 
318 ;  PeoiDle  v.  Winchell,  7  Cow.  524.  The 
following  recitals  in  the  judgment  entry  are 
not  enough :  "  This  day  came  the  solicitor 
and  the  defendant,  and  it  is  therefore  con- 
sidered by  the  court  that  the  prisoner  be 
taken  hence  to  the  jail  of  the  county,"  &c. 
Eliza  V.  State,  39  Ala.  693. 

13.  In  California,  if  the  prisoner  objects 
that  he  was  absent  at  the  time  of  trial  or 
rendition  of  verdict,  or  passing  of  sentence, 
he  must  prove  it.     People  v.  Stuart, 4  Cal.218. 

14.  When  presence  of  defendant  not 
necessary.  It  is  not  error  for  tlie  court  to 
name  the  day  for  passing  sentence  when  the 
defendant  is  not  in  court.  People  v.  Gal- 
vin,  9  Cal.  115. 

/^15.  The  prisoner  need  not  be  present  in 
court  when  judgment  is  pronounced,  unless 
corporal  puuishment  is  to  be  inflicted.  Son 
V.  People,  12  Wend.  344. 

16.  Where  it  is  iu  the  discretion  of  the 
court  to  sentence  the  prisoner  to  corporal 
punishment,  it  does  not  follow  that  he  must 
be  present,  though  the  rule  is  that  such  a 
sentence  shall  not  be  imposed  in  his  absence. 

^But  where  the  sentence  is  a  fine  merely,  the 
defendant's  presence  is  not  necessary.  Peo- 
ple v.  Taylor,  3  Denio,  91. 

17.  In  Iowa,  under  the  statute  (Code,  sec. 
3059),  where  the  offense  charged  is  a  mis- 
demeanor, judgment  may  be  rendered  in 
defendant's  absence.  Hughes  v.  State,  4 
Iowa,  554;  State  v.  Shepard,  10  lb.  126. 

18.  Asking  prisoner  if  h.e  has  anything 
to  say.  On  every  trial  for  felony,  before 
the  prisoner  is  sentenced,  the  court  should 
demand  from  him  what  he  has  to  say  why 
judgment  should  not  be  pronounced  against 
him,  and  the  fact  that  he  was  present  and 
that  such  demand  was  made  of  him  ought 
to  appear  upon  the  record.  Safford  v.  Peo- 
ple, 1  Parker,  474. 

19.  In  cases  of  felony,  it  is  error  to  omit 
to  ask  the  prisoner,  before  passing  sentence, 
if  he  has  anything  to  say  why  sentence 
should  not  be  awarded  against  him.  Mul- 
len V.  State,  45  Ala.  43. 


L 


20.  In  New  York  and  Mississippi,  in  cap- 
ital cases,  it  is  indispensable  that  the  record 
show  that  the  prisoner  was  asked  why 
sentence  should  not  be  pronounced  upon 
him.  Messner  v.  People,  45  N.  Y.  1,  Peck- 
ham,  3. ,  dissenting  ;  James  v.  State,  45  Miss. 
572. 

21.  In  Alabama,  under  an  indictment  for 
felony,  the  record  need  not  affirmatively 
show  that  the  prisoner  was  asked  by  the 
court  before  sentence  if  he  had  anything  to 
say  in  arrest  of  judgment.  But  it  will  be 
presumed  that  the  question  was  asked  unless 
the  record  affirmatively  shows  the  contrary. 
Aaron  v.  State,  39  Ala.  684;  Robin  v.  State, 
40  lb.  72;  Taylor  v.  State,  42  lb.  531. 

22.  Whan  prisoner  need  not  be  interro- 
gated. It  is  only  in  capital  cases  that  the 
coui't  is  required  to  demand  of  the  prisoner 
whether  he  has  anything  to  say  why  sen- 
tence should  not  be  passed  upon  him. 
West  v.  State,  2  Ala.  212;  Grades  v.  State, 
2  Ga.  253. 

23.  In  Massachusetts,  it  is  only  in  capital 
trials  that  there  need  be  a  recital  on  the 
record  that  the  defendant  was  asked  what 
he  had  to  say  why  judgment  should  not  pro- 
ceed against  him.  Jeifries  v.  Com.  12  Allen, 
145. 

24.  In  Georgia,  it  has  been  held  that  in 
tbe  minor  felonies  the  neglecting  to  ask  the 
prisoner  if  he  has  anything  to  say  why 
sentence  should  not  be  pronounced  against 
him  is  not  a  sufficient  ground  for  reversing 
the  judgment,  provided  it  appears  that  he 
and  his  counsel  were  both  iu  court  when 
the  sentence  was  pronounced,  and  urged 
nothing  in  arrest  of  judgment  or  in  mitiga- 
tion of  the  prisoner's  guilt.  Grady  v.  State, 
11  Ga.  253. 

25.  In  New  York,  the  objection  that  it 
does  not  appear  that  the  prisoner  after  con- 
viction of  burglary  was  asked  why  sentence 
should  not  be  passed  upon  him,  is  not 
ground  for  reversal,  though  it  would  be  in 
a  capital  case.  In  the  absence  of  any  state- 
ment, objection  or  exception  upon  the  record, 
it  will  be  implied  that  the  usual  formalities 
were  observed.  People  v.  McGeery,  6  Par- 
ker, 653. 

26.  In  Iowa,  where  the  defendant  is  con- 


55G 


SENTENCE. 


Upon  Overruling  Demurrer. 


In  Case  of  Repeal  of  Statute. 


yicted  of  a  misdemeanor,  the  record  need 
not  sliow  th:it  he  was  asked  if  he  had  any 
reason  to  state  why  judgment  should  not  be 
pronounced  against  him.  State  v.  Stiefle, 
13  Iowa,  603. 

27.  Upon  overruling  demurrer.  Judg- 
ment having  been  rendered  in  favor  of  the 
defendant  on  demurrer  to  an  indictment  for 
a  misdemeanor,  amJ  the  judgment  reversed 
on  error,  it  was  held  that  the  appellate  court 
must  give  a  final  judgment  for  the  prosecu- 
tion on  the  demurrer  and  pass  sentence  on 
the  defendant,  and  that  he  could  not  with- 
draw the  demurrer  and  plead.  People  v. 
Taylor,  3  Denio,  Dl. 

28.  Under  pleas  of  former  conviction 
and  acquittal.  In  Iowa,  after  the  issues 
under  the  pleas  of  former  conviction  and 
acquittal  were  determined  against  the  de- 
fendants by  the  verdict  of  the  jury,  the  court 
proceeded  to  judgment  without  trying  the 
defendants  again  on  the  question  of  their 
guilt.  Held  proper  under  the  statute  (^Re- 
vision, §  4833.)  State  v.  Green,  16  Iowa, 
239. 

29.  In  case  of  escape.  Where  after  con- 
viction the  prisoner  escapes,  and  cannot  be 
produced  on  the  day  fixed  for  his  sentence, 
he  may  be  sentenced  at  a  subsequent  term 
of  the  court.     State  v.  Pierce,  8  Nev.  291. 

30.  In  Massachusetts,  under  the  statute 
(R.  S.  ch.  143,  §  49),  where  a  person  sen- 
tenced to  the  house  of  correction  for  suc- 
cessive terms  of  imiDrisonment  on  sevei'al 
convictions,  breaks  prison  and  escapes  be- 
fore the  expiration  of  the  sentence  on  his 
first  conviction,  he  may,  upon  being  found 
guilty  of  such  escape,  I)e  sentenced  to  the 
State  prison  for  the  unexpired  term  to  whicli 
he  was  sentenced  on  all  the  previous  con- 
victions.    Stevens  v.  Com.  4  Mete.  360. 

31.  Where  defendant  violates  condition 
of  pardon.  Where  a  prisoner  having  been 
pardoned  on  condition  that  he  shall  leave 
the  State  and  not  return,  violates  the  con- 
dition, he  is  remitted  to  his  original  sen- 
tence, and  when  brought  before  the  court 
to  have  it  repronounced,  and  another  day 
assigned  for  its  execution,  he  may  show 
cause  why  it  should  not  be  passed.  State 
Chancellor,  1  Strobh.  347. 


32.  In  case  of  repeal  of  statute.  Where 
a  penal  statute  is  repealed  without  a  saving 
clause  as  to  prosecutions  previously  com- 
menced, a  prisoner  found  guilty  of  an 
offense  created  by  such  statute,  cannot  be 
sentenced.  Com.  v.  Kimball,  21  Pick.  373 ; 
Heald  v.  State,  3G  Maine,  63.  Where  the 
prisoner  who  had  been  sentenced  to  be  hung 
was  not  executed  on  the  day  named  in  the 
sentence,  and  was  brought  before  the  court 
at  a  subsequent  term  to  be  resentenced,  it 
was  held  that  the  repeal  of  the  law  under 
which  he  was  convicted  and  sentenced,  sub- 
sequent to  the  original  sentence,  made  it  nec- 
essary to  discharge  him.  Aaron  v.  State, 
40  Ala.  306,  Walker,  Ch.  J.,  dissenting. 

33.  As  the  statute  of  New  York  prescrib- 
ing the  punishment  of  death  was  only  de- 
clatory  of  the  common  law,  where  a  prisoner 
after  the  repeal  of  the  statute  was  sentenced 
to  suffer  the  punishment  of  death,  it  was 
held  that  he  was  sentenced  to  be  executed  in 
the  mode  required  by  the  common  law. 
Done  V.  People,  5  Parker,  364. 

34.  Under  joint  indictment.  Where 
several  are  convicted  under  a  joint  indict- 
ment, they  must  be  separately  sentenced. 
State  v.  Gay,  10  Mo.  440;  Waltzer  v.  State, 
3  Wis.  783. 

35.  Where  two  persons  jointly  indicted 
are  convicted,  and  their  common  surety  con- 
fesses judgment  on  the  conviction,  a  sepa- 
rate judgment  should  be  rendered  against 
each,  with  his  surety,  for  the  amount  of  the 
fines  and  costs.  McLeod  v.  State,  35  Ala. 
395. 

36.  Under  indictment  containing  several 
counts.  Where  an  indictment  containing 
several  counts,  charges  an  oflense  embraced 
in  one  transaction,  it  is  error  in  the  court  to 
sentence  on  each  count  separately.  Wood- 
ford V.  State,  1  Ohio,  N.  S.  427. 

37.  But  in  Pennsylvania,  where  an  indict- 
ment contains  two  counts,  the  first,  for  will- 
fully and  maliciously  breaking  and  entering 
a  storehouse  or  shop,  with  intent  feloniously 
to  steal,  take  and  carry  away  goods  and  chat- 
tels, and  the  second  for  simple  larceny, 
enumerating  the  goods,  and  the  defendant 
having  been  found  guilty  was  sentenced  to 
separate  and  distinct  terms  of  imprisonment 


SENTENCE. 


557 


Under  Indictment  Containing  Several  Counts. 


Under  Two  Indictments. 


on  each  count,  it  was  held  proper.     Com.  v. 
Birdsall,  69  Penn.  St.  482. 

38.  On  a  general  verdict  of  guilty,  under 
an  indictment  containing  counts  for  burg- 
lary, larceny,  and  receiving  stolen  goods 
knowing  them  to  have  been  stolen,  the 
prisoner  may  be  sentenced  for  the  highest 
offense  charged.  People  v.  McGeery,  6 
Parker,  653 ;  People  v.  Bruno,  lb.  657. 

39.  Where  one  count  of  an  indictment  is 
good,  and  another  defective,  and  there  is  a 
general  verdict  of  guilty,  it  is  not  error  to 
render  judgment  on  the  good  count,  unless 
there  is  some  matter  of  aggravation  alleged 
in  the  defective  count  which  may  be  sup- 
posed to  have  influenced  the  judgment  and 
sentence.     Arlen  v.  State,  18  New  Ham2).563. 

40.  Where  the  clerk  of  the  court  under- 
took to  number  the  counts  of  the  indict- 
ment on  the  margin,  but  by  mistake,  com- 
menced the  numbering  with  the  second 
count,  and  the  mistake  was  continued 
through  the  whole  of  the  counts,  and  the 
jury  returned  a  verdict  of  guilty  on  the 
seventh  and  eighth  counts  as  numbered,  it 
was  held  error  for  the  court  to  sentence  the 
prisoner  on  the  seventh  and  eighth  counts  of 
the  indictment,  they  being  numbered  six  and 
seven.     Woodford  v.  State,  1  Ohio,  N.S. 427. 

41.  Under  indictment  charging  distinct 
offenses.  Where  there  is  a  general  verdict 
of  guilty  on  an  indictment  charging  several 
distinct  offenses,  a  single  sentence  is  legal, 
if  it  do  not  exceed  the  sum  of  the  several 
sentences  which  may  be  awarded.  Carleton 
V.  Com.  5  Mete.  532. 

42.  In  Massachusetts,  where  the  defendant 
is  charged  with  breaking  and  entering  a 
dwelling-house  with  an  intent  to  steal,  and 
stealing  therefrom,  and  there  is  a  general 
verdict  of  guilty,  he  is  to  be  sentenced  for 
house-breaking  and  not  for  larceny.  Com. 
v.  Hope,  22  Pick.  1.  But  if  a  breaking  and 
entering  with  intent  to  steal  be  proved,  and 
a  larceny  committed  at  another  time  be  also 
proved,  the  prisoner  may  be  sentenced  for 
both  offenses.  Kite  v.  Com.  11  Mete.  581. 
See  Murray  v.  Com.  13  Mete.  514. 

43.  In  the  same  State,  under  the  statute 
(R.  S.  of  Mass.  ch.  126,  §  19),  where  a  per- 
son is  convicted  of  three  distinct  larcenies 


at  the  same  term  of  the  court,  there  must  be 
a  consolidated  judgment  against  him  as  a 
common  and  notorious  thief  Haggett  v. 
Com.  3  Mete.  457. 

44.  Under  two  indictments.  Where  the 
prisoner  is  found  guilty  on  two  separate  in- 
dictments at  the  same  term  of  the  court,  he 
may  be  sentenced  on  both,  the  second  to 
commence  upon  the  expiration  of  the  first. 
State  V.  Smith,  5  Day,  175. 

45.  Where  there  are  distinct  punish- 
ments. Where  the  prisoner  is  liable  to  two 
distinct  and  independent  punishments,  he 
cannot  allege  for  error,  that  only  one  of  the 
punishments  is  adjudged  against  him.  Kane 
V.  People,  8  Wend.  203. 

46.  Under  verdict  finding  less  than 
amount  charged.  Where  the  value  laid  in 
an  indictment  for  larceny  is  over  one  hun- 
dred dollars,  the  jury  may  in  their  verdict 
find  the  value  less  than  the  amount  charged, 
and  then  the  prisoner  is  sentenced  in  the 
same  manner  as  if  the  indictment  had  laid 
the  value  under  one  hundred  dollars.  Cora. 
V.  Griflan,  21  Pick.  523. 

47.  Under  statute  punishing  common- 
law  offense.  Where  an  oflense  is  a  misde- 
meanor at  common  law,  punishable  by  fine 
and  imprisonment  in  the  discretion  of  the 
court,  and  a  statute  is  passed  punishing  by 
a -fine  of  five  hundred  dollars,  the  court,  in 
passing  sentence,  cannot  exceed  the  punish- 
ment imposed  by  the  statute.  State  v. 
Thompson,  3  Strobh.  12. 

48.  Before  expiration  of  previous  sen- 
tence. Where  a  prisoner,  under  an  unex- 
pired sentence,  commits  an  offense,  he  may 
lawfully  be  convicted  thereof,  and  the  suc- 
ceeding period  of  imprisonment  will  com- 
mence on  the  termination  of  the  period  next 
preceding.     State  v.  Connell,  49  Mo.  282. 

49.  For  successive  terms  of  imprison- 
ment. Where  a  person  is  found  guilty  and 
sentenced  to  imprisonment  for  one  oflense, 
and  during  the  same  term  is  found  guilty  of 
others,  he  may  be  sentenced  on  the  latter, 
each  term  of  imprisonment  to  commence  at 
the  expiration  of  the  other.  State  v.  Smith, 
5  Day,  175 ;  Com.  v.  Leaths,  1  Va.  Cas. 
151 ;  JRussell  v.  Com.  7  Serg.  &  Rawle,  489  ; 
Kite  v.  Com.  11  Mete.  581. 


558 


SENTENCE. 


To  Additional  Punishment. 


Directing  Mode  and  Place  of  Imprisonment. 


£0.  To  additional  punishment.  A  sen- 
tence to  additional  punishment  on  an  infor- 
mation cliargiug  three  previous  convictions 
and  sentences,  ■will  be  sustained,  if  two  of 
those  sentences  were  valid,  although  one  of 
them  has  been  reversed  for  error.  Newton 
V.  Com.  8  Mete.  535.  See  Wilde  v.  Com.  2 
Mete.  408. 

51.  In  New  York,  under  the  statute  (Sess. 
42,  ch.  246,  §  4),  providing  that  a  person  a 
second  time  convicted  of  petit  larceny  shall 
be  imprisoned  in  the  State  prison,  to  justify 
a  sentence  for  the  increased  penalty,  the 
second  offense  must  have  been  committed 
after  a  conviction  for  the  first.  It  is  not 
sufficient  that  the  prisoner  committed  two 
successive  petit  larcenies  which  were  sever- 
ally and  successively  prosecuted  to  convic- 
tion, though  the  second  indictment  charged 
the  first  conviction  as  a  part  of  the  oflense. 
People  V.  Butler,  3  Cow.  347. 

52.  Designating  time  of  imprisonment. 

A  sentence  is  defective  which  does  not  state 
the  date  at  which  the  imprisonment  shall 
commence.  Kelly  v.  State,  3  Smed.  & 
Marsh.  518. 

53.  Where  the  statute  provides  that  the 
term  of  imprisonment  shall  begin  upon  and 
include  the  day  of  conviction,  a  sentence 
that  the  defendant  be  imprisoned  in  the 
State  prison  for  one  year,  and  that  until 
taken  there  he  be  confined  in  the  county 
jail,  sufficiently  defines  the  term  of  imprison- 
ment in  the  State  prison.  State  v.  Gaskins, 
65  N.  C.  320. 

54.  In  Connecticut,  where  a  justice  of  the 
peace  sentenced  the  defendant  to  the  work- 
house until  released  by  order  of  law,  it  was 
held  error,  such  a  sentence  being  for  an  in- 
definite time.     Wash  v.  Belk,  3  Conn.  302. 

55.  In  New  York,  at  a  Court  of  Special 
Sessions,  the  defendant  was  convicted  of 
petit  larceny,  and  sentenced  to  pay  a  fine  and 
to  imprisonment  for  thirty  days,  and  in  case 
the  fine  was  not  paid,  to  imprisonment  for 
the  term  of  four  months.  Held  that  as  the 
Special  Sessions  under  the  statute  (Sess.  36, 
ch.  104,  §  4),  could  imprison  not  to  exceed 
thirty  days  for  the  non-payment  of  a  fine,  the 
sentence  was  good  for  the  thirty  days,  but 


void  for  the  four  months.     Matter  of  Sweat- 
man,  1  Cow.  144. 

56.  The  requirements  of  a  statute  that  a 
sentence  shall  be  so  made  that  the  imprison- 
ment shall  expire  between  IVIarch  and  No- 
vember, is  merely  directory,  and  a  failure  to 
comply  with  such  requirement  does  not 
render  the  sentence  void.  Miller  v.  Finkle, 
1  Parker,  374. 

57.  Directing  mode  and  place  of  im- 
prisonment. In  New  York,  the  sentence  of 
a  prisoner  to  confinement  in  the  State 
prison  is  necessarily  a  sentence  of  imprison- 
ment at  hard  labor.  Done  v.  People,  5 
Parker,  364 ;  and  the  omission  to  designate 
in  the  sentence  the  prison  in  which  the  con- 
vict is  to  be  confined  is  not  error.  Weed 
V.  People,  31  N.  Y.  465. 

58.  In  Massachusetts,  under  the  statute 
(R.  S.  ch.  139,  §  8),  providing  that  a  sen- 
tence to  imprisonment  in  the  State  prison 
shall  be  partly  to  solitary  confinement  and 
partly  to  confinement  at  hard  labor,  a  sen- 
tence which  directs  no  solitary  confinement 
will  be  erroneous.  Stevens  v.  Com.  4  Mete. 
360. 

59.  Where  a  statute  provided  that  an  of- 
fense might  be  punished  by  imprisonment  in 
the  penitentiary  or  county  jail,  it  was  held 
that  a  sentence  to  imprisonment  in  the 
county  jail  at  "  hard  labor,"  was  void,  not- 
withstanding "  hard  labor  "  made  a  part  of 
a  sentence  to  the  penitentiary  under  the 
statute.     Daniels  V.  Com.  7  Barr,  371. 

60.  Designating  execution  of  prisoner 
at  a  time  not  fixed  by  law.  A  sentence 
which  directs  the  execution  of  a  person  con- 
victed of  murder  at  a  time  beyond  the 
period  prescribed  by  the  statute,  is  not  void ; 
but  such  designation  may  be  rejected  as  sur- 
plusage.    State  V.  Summers,  9  Nev.  269. 

61.  Where  the  court  below  improperly 
sentenced  the  prisoner  to  be  executed  on  a 
certain  day,  and  he  procured  a  stay  of  pro- 
ceedings until  the  day  of  execution  had 
passed,  it  was  held  that  as  the  error  had,  by 
his  own  act,  become  immaterial,  he  was  not 
entitled  to  a  reversal  of  the  judgment.  Low- 
enberg  v.  People,  27  N.  Y.  336,  Balcom, 
Wright,  and  Emott,  JJ.,  dissenting. 

62.  Cannot  be  upon  agreed  case.     The 


SENTENCE. 


55f> 


Amendment  of  Sentence. 


Correction  of  Sentence  on  Appeal. 


defendant  cannot  be  sentenced  upon  facts 
agreed  upon  by  the  parties.  State  v.  Cross, 
34  Maine,  595. 

63.  Must  not  be  conditional.  The  sen- 
tence must  be  absolute,  and  not  have  an- 
nexed to  it  a  condition  for  its  subsequent 
remission.  State  v.  Bennett,  4  Dev.  &  Batt. 
43. 

64.  Amendment  of  sentence.  Where  the 
court  in  passing  sentence  lias  overlooked  a 
requirement  of  the  statute,  it  may  correct 
the  judgment  at  the  same  term,  before  the 
sheriff  has  executed  it,  by  vacating  the  first 
sentence  and  passing  a  new  one.  Miller  v. 
Finkle,  1  Parker,  374;  Drew  v.  Com.  1 
Whart.   279. 

65.  In  Alabama,  under  the  statute  (Code, 
§§  3663-64),  where  the  judgment  of  convic- 
tion in  a  capital  case  does  not  name  the  day 
of  execution,  the  appellate  court  on  afBrm- 
ing  the  judgment  will  specify  the  day. 
Russell  V.  State,  33  Ala.  866. 

66.  In  California,  where  the  court  after 
conviction  of  murder,  sentenced  the  prisoner 
to  be  executed,  but  afterward  caused  him  to 
be  again  brought  into  court,  and  amended 
the  sentence  by  shortening  the  time,  it  was 
held  proper.  People  v.  Thompson,  4  Cal. 
238. 

67.  In  Virginia,  where  the  defendant  was 
sentenced  in  the  court  below  to  the  peniten- 
tiary for  a  shorter  time  than  was  authorized 
by  law,  it  was  held  that  the  Circuit  Court 
might,  upon  proper  proceedings  had  before 
that  court,  correct  the  error,  and  sentence 
the  defendant  for  tlie  shortest  period  fixed 
by  the  statute  for  the  offense  of  which  he 
was  convicted.  Logan's  Case,  5  Graft. 
692. 

68.  Where  a  statute  provides  that  an 
offense  shall  be  punished  by  fine  or  im- 
prisonment, and  the  court  having  sentenced 
the  offender  to  pay  a  fine,  and  also  to  im- 
prisonment;  the  fine  has  been  paid,  it  cannot 
amend  the  judgment  by  imposing  imprison- 
ment instead  of  the  former  sentence.  Em 
joarie  Lange,  18  Wallace,  163. 

69.  Correction  of  sentence  on  appeal. 
Where  no  objection  is  made  to  the  verdict, 
but  the  sentence  is  defective,  the  judgment 
will   be   reversed   without    disturbing    the 


verdict,  and  the  cause  remanded  with  di- 
rections to  pronounce  the  proper  sentence. 
Kelly  V.  State,  3  Sraed.  &  Marsh.  518. 

70.  Where  the  prisoner  was  not  present 
when  sentence  of  corporal  punishment  was 
pronounced,  a  new  trial  will  not  necessarily 
be  granted,  but  the  judgment  will  be  re- 
versed, and  the  cause  remanded,  with  in- 
structions to  the  court  below  to  proceed  to 
pronounce  sentence  upon  the  prisoner  ac- 
cording to  law.     Cole  v.  State,  5  Eng.  318. 

71.  A  defendant  having  been  convicted  of 
felony,  appealed  from  the  judgment  on  the 
ground  that  the  facts  stated  in  the  indict- 
ment did  not  constitute  felony.  The  Su- 
preme Court  reversed  the  judgment  for  this 
error,  and  directed  the  court  below  to  give 
judgment  for  a  misdemeanor,  that  being  the 
judgment  which  should  have  been  there 
rendered.     State  v.  Upchurch,  9  Ired.  454. 

72.  In  New  York,  where  a  murder  was 
committed  after  the  passage  of  a  certain  act, 
and  the  indictment,  trial  and  conviction 
were  had  subsequent  to  the  enactment  of  a 
law  changing  the  mode  of  punishment,  but 
the  latter  statute  declared  that  no  offense 
committed  previous  to  the  time  when  it 
took  effect  should  be  aflected  by  it,  and  the 
court  notwithstanding,  sentenced  the  pris- 
oner to  the  punishment  prescribed  by  it,  the 
court  directed  the  record  to  be  remitted  to 
the  Oyer  and  Terminer  pursuant  to  the  laws 
of  1863,ch.226,  with  directions  to  pronounce 
the  judgment  prescribed  by  the  first  men- 
tioned act.  Ratzky  v.  People,  29  JST.  Y. 
124;  s.  p.  McKee  v.  People,  32  N.  Y.  239. 

73.  In  Alabama,  where  the  court  below, 
on  a  trial  for  larceny,  pronounces  a  wrong 
sentence,  the  appellate  court  will  reverse 
the  sentence  and  pronounce  judgment  in 
conformity  with  the  statute.  Oliver  v. 
State,  5  How.  Miss.  14.  And  see  Sword  v. 
State,  5  Humph.  102;  Logan's  Case,5  Graft. 
692. 

74.  In  Arkansas,  when  the  court  in  pass- 
ing sentence  does  not  comply  with  the 
statute,  it  will  not  be  ground  for  the  reversal 
of  the  judgment,  but  a  compliance  with  the 
statute  will  be  directed.  Brown  v.  State,  8 
Eng.  96. 

75.  In  Tennessee,  where  a  statute  provid- 


560 


SENTENCE. 


Presumption  in  Favor  of  Sentence. 


Execution  of  Sentence. 


cd  that  the  defendant  on  conviction  should 
be  fined  and  imprisoned,  and  the  Circuit 
Court  sentenced  him  merely  to  pay  a  fine,  it 
was  held  that  the  Supreme  Court  might, 
under  the  statute  of  1800,  ch.  49,  order  his 
imprisonment.  Sword  v.  State,  5  Humph. 
102. 

76.  Presumption  in  favor  of  sentence. 
The  appellate  court  will  not  presume  that 
the  prisoner  was  tried  and  sentenced  with- 
out an  indictment,  simply  because  the  entries 
showing  the  trial,  conviction,  and  sentence 
are  copied  from  the  minutes  into  the  tran- 
script before  the  indictment.  Cawley  v. 
State,  37  Ala.  153. 

77.  Where  the  indictment  contains  sev- 
eral counts,  each  charging  a  distinct  offense, 
and  a  general  verdict  of  guilty  is  rendered, 
it  will  be  presumed  that  the  judge  who 
tried  the  case  pronounced  judgment  for  the 
ofi'ense  to  which  the  evidence  was  directed 
and  was  applicable.  People  v.  Shotwell, 
37  Cal.  394. 

78.  Where  there  is  a  general  verdict  and 
a  general  judgment  upon  an  indictment 
charging  in  one  count  a  rape,  and  in  another 
an  assault  and  battery  with  intent  to  com- 
mit a  rape,  it  will  be  intended  that  the  pris- 
oner was  sentenced  lor  the  rape.  Cooke  v. 
State,  4  Zabr.  843. 

79.  Execution  of  sentence.  The  time  at 
which  the  sentence  shall  be  carried  into 
efl'ect,  forms  no  part  of  the  judgment  of  the 
court.     State  v.  Cockerham,  2  Ired.  204. 

80.  Where  a  person  having  been  convicted 
of  an  assault,  Avas  sentenced  to  be  imprisoned 
for  two  calendar  months  "from  and  after 
first  day  of  November  next,"  but  he  was  not 
imprisoned  according  to  the  sentence,  and  at 
a  subsequent  term  of  the  court  it  was  di- 
rected that  the  sentence  for  two  months' 
imprisonment  should  be  immediately  carried 
into  efi"ect,  it  was  held  proper.  Ooton  v. 
State,  5  Ala.  463. 

81.  Where  the  defendant  is  sentenced  to 
imprisonment  for  a  certain  term,  and  until 
he  shall  pay  the  costs,  if  payment  is  not 
made,  the  continued  imprisonment,  after  the 
expiration  of  the  term,  is  of  the  same  char- 
acter as  that  before.  Riley  v.  State,  16 
Conn.  47. 


82.  Where  a  prisoner,  being  sentenced  to 
imprisonment  for  a  term  to  commence  imme- 
diately after  the  expiration  of  a  previous 
sentence,  the  first  sentence  is  reversed,  the 
term  of  the  second  sentence  begins  to  run 
from  the  time  of  the  reversal  of  the  first. 
Brown  v.  Com.  4  Rawle,  2o9. 

83.  Where  there  are  two  sentences  of  im- 
prisonment, the  second  imprisonment  to 
commence  when  the  first  terminates,  if  the 
latter  is  shortened  by  a  reversal  of  the  judg- 
ment or  a  pardon,  it  then  expires,  and  the 
other  sentence  takes'etfect  the  same  as  if  the 
previous  one  had  expired  by  lapse  of  time. 
Kite  V.  Com.  11  Mete.  581. 

84.  Although  a  prisoner  who  was  con- 
victed in  Philadelphia,  and  sentenced  to 
imprisonment  in  the  jail  and  penitentiary  of 
that  city,  ought,  upon  the  sale  of  the  prison, 
to  have  been  removed  to  the  Eastern  Peni- 
tentiary instead  of  to  the  Moyaraensing 
Prison,  as  was  done,  it  was  held  that  he 
could  not  be  discharged  on  habeas  corpus  on 
account  of  the  mistake.  Reddill's  Case,  1 
Whart.  445. 

85.  A  jjerson  having  been  sentenced  to 
imprisonment  at  hard  labor  for  a  specified 
number  of  years  in  the  jail  and  penitentiary 
for  the  city- and  county  of  Philadelphia,  and 
confined,  in  pursuance  of  the  sentence,  in 
the  Walnut  street  prison,  upon  its  sale,  was 
removed,  with  other  prisoners,  to  the  Arch 
street  prison,  and  kept  there  without  being 
put  to  hard  labor.  Held  that  he  was  not  en- 
titled to  be  discharged  on  habeas  corjius. 
Pember's  Case,  1  Whart.  439. 

86.  In  cases  where,  before  the  expiration 
of  the  term  of  imprisonment,  the  jmsoner 
escapes,  no  new  award  of  execution  is  neces- 
sary or  proper.  The  prisoner  can  be  re- 
taken at  any  time  and  confined  under  the 
authority  of  the  original  judgment  until  his 
term  of  imprisonment  has  been  accomplished. 
If  an  order  be  made  awarding  execution  of 
the  sentence,  it  will  not  conclude  the  pris- 
oner on  habeas  corpus,  neither  is  it  reviewable 
on  writ  of  error,  Haggerty  v.  People,  53 
N.  y.  476  ;  s.  c.  6  Lans.  332. 

87.  In  Massachusetts,  sentences  of  death 
are  carried  into  effect  by  a  warrant  from  the 
executive,  at  a  time  therein  directed,  in  the 


SENTENCE.— SL AYE  TRADE. 


561 


Effect  of  Sentence  on  Rights  of  Prisoner. 


Unlawful  Participation  in. 


mode  and  at  the  place  faxed  by  law,  and  the 
court  does  not  fix  the  time  or  place  or  issue 
■any  warrant  to  the  sheriff  directing  the  exe- 
cution.    Webster  v.  Com.  5  Cush.  386. 

88.  A  sentence  was  as  follows:  "That 
you,  A.  B.,  be  removed  from  this  place  and 
detained  in  close  custody  in  the  prison  in 
this  county,  and  thence  taken  at  such  time 
AS  the  executive  government  of  this  com- 
monwealth may,  by  their  warrant  appoint, 
to  the  place  of  execution,  and  there  be  hung 
by  the  neck  until  you  are  dead."  The  follow- 
ing entry  was  made  in  the  record  :  "  Where- 
upon, all  and  singular  the  premises  being 
seen  and  understood,  it  is  considered  by  the 
court  that  the  said  A.  B.  be  taken  to  the 
jail  from  whence  he  came,  and  thence  to 
the  place  of  execution,  and  there  be  hanged 
by  the  neck  until  he  be  dead."  Held  that, 
as  the  sentence  in  the  form  in  which  it  was 
entered,  did  not  undertake  to  direct  the 
place  where  it  should  be  executed,  it  was 
not  erroneous.     lb. 

89.  The  sentence  may  be  carried  into  ef- 
fect, notwithstanding  a  repeal  of  the  law,  or 
the  enactment  of  a  mitigated  punishment. 
State  V.  Addington,  2  Bail.  516 ;  contra, 
Com.  V.  Kimball,  21  Pick.  373. 

90.  Effect  of  sentence  on  rights  of  pris- 
oner. The  effect  of  a  sentence  by  which  all 
the  civil  rights  of  the  prisoner  are  suspended, 
commences,  as  docs  likewise  the  time  of 
imprisonment,  from  the  time  of  2:)assing  sen- 
tence.    Miller  v.  Finkle,  1  Parker,  374. 

■  91.  The  consequence  of  vacating  a  sen- 
tence and  pronouncing  a  new  sentence  dur- 
ing the  same  term,  is  the  same  as  to  the 
civil  rights  of  the  defendant,  as  if  the  first 
judgment  had  been  reversed  on  error,  and 
the  defendant  had  been  again  convicted  on 
a  second  trial.     lb. 

92.  Where,  according  to  a  sentence,  the 
term  of  imprisonment  in  the  State  prison 
would  expire  in  December,  and  afterward, 
at  the  same  term,  the  sentence  was  vacated 
and  a  new  sentence  pronounced  making  it 
expire  in  October,  and  the  prisoner,  subse- 
quent to  the  first  sentence  and  before  the 
second  sentence,  executed  an  assignment  of 
his  book  accounts,  it  was  held  tiiat  such  as- 
signment was  valid.     lb. 


93.  Assignment  of  error  upon.  The  de- 
fendant may  assign  error  upon  a  sentence 
which  is  not  conformable  to  the  statute,  al- 
though the  sentence  is  less  severe  than  that 
which  the  law  prescribes.  Haney  v.  State, 
5  Wis.  529. 

94.  Evidence  in  mitigation  of.  The 
court  will  permit  the  prisoner  to  offer  evi- 
dence in  mitigation  of  sentence,  after  the 
plea  of  guilty.  Com.  v.  Horton,  9  Pick. 
206. 


01)0111. 

See  Theatrical  performance. 


Slauc  Srabc. 


1.  UnlawfuIi  participation  in. 

2.  Seizure  and  forfeiture  of  vessel. 

3.  Indictment. 

4.  Evidence, 

1.  Unlawful  participation  in. 

1.  How  regarded.  The  slave  trade  is  not 
piracy,  unless  made  so  by  treaty  or  law  of 
the  nation  where  the  party  belongs.  The 
Antelope,   10  Wheat.  67. 

2.  The  slave  trade  is  repugnant  to  the  law 
of  nations,  and  a  claim  based  upon  it  will 
be  disregarded  in  any  court  where  it  is 
asserted,  unless  the  trade  is  legalized  by  the 
nation  to  which  the  claimant  belongs.  La 
Jeune  Eugenie,  2  Mason,  409 ;  The  Antelope, 
supra. 

3.  Acts  of  Congress  in  relation  to.  The 
offense  prohibited  by  the  act  of  Congress  of 
May  10th,  1800,  consists  in  carrying  persons 
from  one  foreign  country  to  another  for  the 
purpose  of  selling  them  as  slaves.  The 
offense  is  committed  as  soon  as  the  vessel 
reaches  her  place  of  destination,  whether 
the  slaves  are  sold  or  not.  U.  S.  v.  Smith, 
4  Day,  121. 

4.  The  act  of  Congress  of  March  2d 
1807,  §  7,  which  prohibits  the  importation 
of  slaves  into  any  port  or  place  within  the 
jurisdiction,  &c.,  does  not  embrace  the 
offense  of    importing  persons  to  be  held  as 


562 


SLA  YE  TRADE. 


Unlawful  Participation  in. 


Seizure  and  Forfeiture  of  Vessel. 


slaves,  but  of  hovering  on  the  coast  with 
such  an  intent ;  and  although  it  forfeits  the 
vessel,  it  is  silent  as  to  the  disposition  of 
the  negroes  on  board,  any  further  than 
handing  them  over  to  the  proper  authorities. 
U.  S.  V.  Preston,  3  Pet.  65. 

5.  The  acts  of  Congress  of  May  10th, 
1800,  and  April  20th,  1818,  prohibit  both 
the  carrying  of  slaves  on  freight,  and  the 
transportation  of  them  from  one  port  to 
another  of  the  same  foreign  country,  as  well 
as  from  one  foreign  country  to  another. 
The  Merino,  9  Wheat.  402. 

6.  The  offense  of  sailing  from  a  port  with 
intent  to  engage  in  the  slave  trade  in  viola- 
tion of  the  act  of  Congress  of  April  20th, 
1818,  ch.  86,  5§  2,  3,  is  not  committed  unless 
the  vessel  leaves  the  port.  U.  S.  v.  La  Coste, 
2  Mason,  129. 

7.  The  language  of  the  act  of  Congress 
of  March  20th,  1818,  prohibiting  the  slave 
trade,  is  not  applicable  to  colored  persons 
who  were  domiciled  in  the  United  States, 
and  reconveyed  there  after  a  temporary 
absence.     The  Ohio,  1  Newberry  Adm.  409. 

8.  Both  intent  and  acts  which  have  a 
tendency  to  reduce  some  person  to  slavery 
are  essential  vinder  the  act  of  Congress  of 
1820,  ch.  113,  to  make  a  person  guilty  of  a 
capital  offense ;  though  under  other  acts  of 
Congress  a  misdemeanor  may  be  committed 
by  merely  transporting  slaves  from  one  place 
to  another  abroad.  U.  S.  v.  Libby,  1  "Wood- 
bury &  Minot,  221. 

9.  It  is  not  a  violation  of  the  slave  trade 
act  of  1820,  ch.  113,  §  4,  for  a  person  to 
transport  slaves  for  hire  from  port  to  port, 
without  any  interest  in,  or  power  over  the 
negroes  so  as  to  impress  upon  them  the 
future  character  of  slaves.  To  constitute 
the  offense,  the  negroes  need  not  have  been 
free  when  they  were  seized  or  received  on 
board  the  vessel.  To  make  a  negro  a  slave 
within  the  meaning  of  the  act,  that  charac- 
ter must  have  been  fixed  upon  him  for  the 
future.     U.  S.  v.  Battiste,  2  Sumner,  240. 

10.  State  courts  have  not  jurisdiction. 
The  courts  of  the  several  States  could  not 
exercise  jurisdiction  in  cases  of  the  violation 
of  the  laws  prohibiting  the  slave  trade,  un- 
less authorized  by  act  of  Congress;    and  all 


jurisdiction  over  the  subject  was  taken  from 
them  by  the  4th  section  of  the  act  of  Con- 
gress approved  March  3d,  1819.  State  v.- 
Caroline,  20  Ala.  19. 

2.  Seizure  and  forfeiture  of  vessel. 

11.  Vessel,  when  to  be  seized.  Under 
the  act  of  Congress  of  1794,  ch.  187,  §  1,  a 
seizure  of  the  vessel  might  be  made  before 
the  vessel  went  to  sea,  as  soon  as  the  inten- 
tion of  "  preparing,'"  &c.,  or  of  "causing  to 
sail,"  &c.,  was  apparent.  The  Emily  and 
The  Caroline,  9  Wheat.  381. 

12.  Forfeiture  of  vessel,  when  incurred. 
The  act  of  Congress  of  1800,  ch.  51,  §  1,. 
prohibits  not  only  the  transportation  of 
slaves,  but  the  being  engaged  in  the  slave 
trade.  Consequently,  a  vessel  employed  in 
such  trade,  is  liable  to  forfeiture,  although 
no  slaves  have  been  taken  on  board  of  her. 
The  Brig  Alexander,  3  Mason,  175;  U.  S.  v. 
Morris,  14  Pet.  464. 

13.  Untler  the  act  of  Congress  of  May 
10th,  1800  (Stats,  at  Large,  vol.  2,  p.  70), 
providing  that  "it  shall  be  unlawful  for 
any  citizen  of  the  United  States  or  other 
person  residing  within  the  United  States, 
directly  or  indirectly  to  hold  or  have  any 
right  or  property  in  any  vessel  employed  or 
made  use  of  in  the  transportation  or  carry- 
ing of  slaves  from  one  foreign  country  or 
place  to  another;  and  any  right  or  property 
belonging  as  aforesaid,  shall  be  forfeited," 
&c.,  if  the  master  knew  that  negroes  had 
been  taken  on  board  his  vessel  by  the  super- 
cargo, on  the  coast  of  Africa,  in  order  to 
be  conveyed  to  Brazil,  and  they  are  convey- 
ed there ;  and  the  vessel  is  forfeited,  not- 
withstanding the  master  may  not  have 
known  or  believed  that  such  persons  were 
slaves.     The  Porpoise,  2  Curtis,  307. 

14.  Where  a  vessel  is  used  as  a  tender  to 
slavers  which  procure  and  convey  slaves 
from  Africa  to  Brazil,  it  is  employed  in  the 
transportation  of  slaves  within  the  meaning 
of  the  above  act,  though  no  slaves  were  con- 
veyed on  board  the  tender.     Ibid. 

15.  A  vessel  on  her  voyage  to  Africa  to 
procure  a  cargo  of  slaves,  is  ''employed  or 
made  use  of  "  for  the  transportation  or  car- 
rying of  slaves,  within  the  above  act,  before 


SLAVE   TKADE. 


5()3 


Seizure  and  Forfeiture  of  Vessel. 


Indictment, 


any  slaves  are  taken  on  board.  And  if  the 
outward  voyage  was  planned  and  under- 
taken with  the  understanding  that  the 
ownership  and  national  character  of  the 
vessel  were  to  be  changed  when  she  reached 
the  coast  of  Africa,  and  that  she  was  then 
to  be  employed  in  the  transportation  of 
slaves,  the  vessel  comes  within  the  mischief 
and  true  intent  of  the  act.  U.  S.  v.  Schooner 
Catharine,  2  Paine  C.  C.  721. 

16.  In  such  case  the  penalty  of  forfeiture  is 
incurred  from  the  commencement  of  the  voy- 
age, and  follows  the  vessel  wherever  she  may 
go  or  into  whatever  hands  she  may  fall.     lb. 

17.  In  order  to  work  a  forfeiture  of  a 
vessel  under  the  act  of  Congress  of  April 
20th,  1818,  for  being  employed  in  the  slave 
trade,  a  criminal  intent  must  exist  in  the 
mind  of  the  person  who  is  lawfully  entitled 
to  direct  the  employment  of  the  vessel.  If 
he  places  her  under  the  control  of  a  factor 
or  master  who  builds  or  equips  her  with  such 
unlawful  intentions,  having  at  the  time 
authority  from  the  owner  to  direct  the 
employment  of  the  vessel,  the  offense  is 
committed.  But  if  the  guilty  purpose  was 
entertained  by  the  owner,  for  whom  the 
vessel  was  built  or  equipped,  it  is"  imma- 
terial whether  the  person  who  builds  her  or 
equips  her  as  factor  or  master  was  apprised 
of  it  or  not.     Strohm  v.  U.  S.  Taney  C.  C.  413. 

18.  Wliere  a  vessel  having  been  partly 
equipped  for  the  slave  trade  in  a  port  of  the 
United  States,  aud  then  taken  to  a  foreign 
port  for  the  completion  of  her  equipment,  is 
afterward  driven  iu  the  course  of  her  voy- 
age into  a  port  of  the  United  States,  she  is 
liable  to  seizure  and  condemnation.  In 
such  case  a  condemnation  may  be  had  on 
evidence  which  is  wholly  circumstantial. 
The  Slavers,  2  Wall.  350. 

19.  Remission  of  forfeiture.  Under  the 
act  of  Congress  proliibiting  the  importation 
of  negroes  after  Jan.  1st,  1808,  it  was  hehl 
that  a  forfeiture  might  be  remitted  by  the 
District  Court  under  circumstances  of  ex- 
treme hardship.  U.  S.  v.  Schooner  Kitty, 
Bee,  252. 

20  When  vessel  not  to  be  condemned. 
Under  the  act  of  Congress  of  A[)ril  18th, 
1818,  a  vessel  was  not  liable  to  condemna- 


tion where  slaves  were  transported  from  the 
United  States  to  Europe  and  reconveyed  to 
the  United  States,  in  which  they  were  again 
held  to  service.     U.  S.  v.  Skiddy,  11  Pet.  7:^. 

21.  Disposal  of  negroes.  Where  Afri- 
cans, having  been  captured  by  a  belligerent 
privateer  fitted  out  in  violation  of  our  neu- 
trality, or  by  a  pirate,  are  recaptured  and 
brought  into  the  ports  of  the  United  States 
under  circumstances  which  make  it  proba- 
ble that  a  violation  of  the  slave  trade  acts 
was  contemplated,  they  will  not  be  restored 
without  conclusive  evidence  of  the  propri- 
etary interest.     The  Antelope,  10  Wheat.  67. 

22.  Under  the  act  of  Congress  of  May  10th, 
1800,  ch.  205,  §  4,  the  owner  of  the  slaves 
carried  away  cannot  reclaim  them  iu  a  court 
of  the  , United  States,  notwithstanding  they 
may  be  held  to  service  according  to  the  laws 
of  their  own  country,  unless  at  the  time  of 
their  capture  by  a  commissioned  vessel  the 
offending  ship  was  in  the  possession  of  a 
non-commissioned  captor  who  had  made  a 
seizure  for  the  same  offense.  The  Merino,  9 
Wheat.  402. 

23.  Effect  of  taking  negro  to  Africa. 
An  African  negro  or  mulatto,  upon  being 
taken  to  the  coast  of  Africa  by  an  American 
citizen,  or  by  any  person  belonging  to  an 
American  ship,  ceases  to  be  a  slave.  U.  S. 
V.  Battiste,  2  Sumner,  240. 

3.  Indictment. 

24.  Against  master  of  vessel.  Under 
the  act  of  Congress  of  May  10th,  1800,  the 
master  of  a  vessel  is  properly  charged  with 
serving  on  board  a  vessel  employed  in  carry- 
ing slaves  in  violation  of  the  act.  U.  S.  v. 
Kennedy,  4  Wash.  C.  C.  91. 

25.  Joinder  of  offenses.  Under  the  act 
of  Congress  of  May  15th,  1820,  for  the  sup- 
pression of  the  slave  trade,  the  receiving  of 
the  negroes  on  the  coast  of  Africa,  the  con- 
fining and  detaining  of  them,  and  aiding 
and  abetting  iu  tlieir  confinement  and  de- 
tention, form  one  transaction,  and  may  be 
joined  in  the  indictment;  but  not  the  charge 
of  the  sale  and  delivery  of  the  negroes  on 
the  coast  of  Cuba,  which  forms  a  separate 
and  distinct  transaction.  U.  S.  v.  Darnaud, 
3  Wall.  Jr.  143. 


564 


SLAVE  TRADE. 


Indictment. 


Evidence. 


26.  Averment  of  intent.  An  indictment 
under  tlie  slave  trade  act  of  1818  which 
charges  that  the  offense  was  committed 
"with  the  intent  that  the  vessel  should  be 
employed,"  is  fatally  defective,  the  words 
of  the  act  being  "  with  intent  to  employ  the 
vessel."     U.  S.  v.  Gooding,  12  Wheat.  4G0. 

4.  Evidence.      ^^ 

27.  Ownership  of  vessel.  To  maintain 
an  indictment  under  the  4th  and  5th  sec- 
tions of  the  act  of  Congress  of  May  loth, 
1820,  for  the  suppression  of  the  slave  trade, 
the  vessel  must  either  have  been  owned  by  a 
citizen  of  the  United  States,  or  the  accused 
must  have  been  such  citizen.  U.  S.  v. 
Darnaud,  3  Wall.  Jr.  143.  Such  ownership 
must  be  aflirmatively  and  distinctly  estab- 
lished by  competent  evidence.  The  custom 
house  registry  of  the  vessel,  under  the  acts 
of  Congress,  is  not  sufBcieut  proof  of  such 
ownershij).     lb. 

28.  Where  a  foreigner  claims  a  vessel 
which  has  been  seized  for  being  engaged 
in  the  slave  trade,  and  his  title  is  derived 
from  American  owners,  he  must  show 
affirmatively  that  the  case  has  no  admixture 
of  American  property.  La  Jeune  Eugenie, 
2  Mason,  400. 

29.  Equipment  of  vessel.  An  indict- 
ment under  the  slave  trade  act  of  1818  will 
be  supported  by  proof  that  the  vessel  was 
fitted  out  with  the  intent  to  employ  her  in 
the  illegal  voyage,  although  her  equipments 
for  a  slave  voyage  were  not  actually  on 
board.     U.  S.  v.  Gooding,  12  Wheat.  4G0. 

30.  Evidence  that  the  owner  of  the  vessel 
commanded,  authorized,  and  superintended 
her  equipment  through  an  agent,  the  owner 
not  being  personally  present,  will  support 
an  indictment  under  the  slave  trade  act  of 
1818,  which  charges  that  "he  did  fit  out 
for  himself  as  owner,"  &c.  U.  S.  v.  Good- 
ing, 12  Wheat.  460.  The  declarations  of 
the  master  as  to  his  suspicions  that  the 
object  of  the  voyage  was  unlawful,  are 
competent  evidence.  U.  S.  v.  The  Isle  de 
Cuba,  2  Cliff.  295. 

31.  Procuring  negroes  with  intent  to 
make  them  slaves.  On  the  trial  of  an  in- 
dictment under  the  act  of  Congress  of  May 


15th,  1820  (3  U.  S.  Stats,  at  Large,  601), 
for  forcibly  confining  and  detaining  on  board 
of  a  vessel,  owned  or  navigated  for  a  citizen 
of  the  United  States,  certain  negroes,  with 
intent  to  make  them  slaves,  proof  that  the 
vessel  was  built  in  and  owned  by  citizens  of 
the  United  States,  fixes  her  national  char- 
acter and  ownership,  until  they  are  shown 
to  have  been  changed  ;  and  the  burden  of 
proof  to  show  such  change  is  on  the  de- 
fendant.    U.  S.  V.  Gordon,  5  Blatchf.  18. 

32.  Evidence  that  the  negroes  were  taken 
on  board  in  the  Congo  river  some  distance 
from  its  mouth,  but  where  it  is  several 
miles  broad,  and  in  fact  an  arm  of  the  sea, 
will  support  an  allegation  in  the  indictment 
that  the  offense  was  committed  on  waters 
within  the  admiralty  and  maritime  jurisdic- 
tion of  the  United  States,  and  within  the 
jurisdiction  of  the  court.     Ibid. 

33.  Although  to  sustain  the  indictment 
in  such  case,  it  must  be  proved  that  the 
negroes  were  forcibly  confined  and  detained 
on  board  of  the  vessel,  yet  the  word  "  forci- 
bly," in  the  act,  does  not  mean  physical  or 
manual  force.  It  is  sufficient  if  they  were 
under  moral  restraint  and  fear.     Ibid. 

34.  A  vessel  owned  by  a  citizen  of  the 
United  States  sailed  from  there  under  in- 
structions to  correspondents  in  Rio  to  sell 
or  charter  her.  The  consignees  chartered 
her  to  a  citizen  of  Brazil  for  one  year,  at  the 
customary  rate  of  freight,  not  to  be  employed 
in  carrying  merchandise  or  passengers  which 
were  unlawful.  Rum,  cotton  goods,  brass 
rings,  and  gunpowder,  suitable  for  sale  or 
exchange  in  Africa  for  slaves,  were  put  on 
board,  and  these  articles,  with  their  owner, 
conveyed  to  the  eastern  coast  of  Africa,  and 
landed  at  slave  factories.  Held  that  this 
and  other  acts  of  the  captain,  such  as 
witnessing  the  purchase  of  slaves  by  the 
owner  of  the  goods,  the  shipment  of  them 
to  Brazil  in  other  vessels,  and  his  going 
there  in  company  with  persons  who  had 
an  interest  in  the  slave  trade,  were  circum- 
stances from  which  the  jury  might  infer  that 
the  captain  was  also  interested  and  co-opera- 
ting in  such  trade;  but  that  to  make  him 
guilty  of  a  capital  oflense  committed  on 
board  his  own  vessel,  it  must  be  shown  that 


SLAVE   TRADE.— SODOMY.— SPIRITUOUS   LIQUORS.     5G5 


Evidence. 


When  Committed. 


Under  what  Circumstances  Illegal. 


he  did  so  co-operate  and  drive,  force,  or 
receive  some  African  on  board  with  intent 
to  make  him  a  slave.  U.  S.  v.  Libby,  1 
Woodbury  &  Minot,  221. 

35.  In  such  case,  it  was  proved  that  two 
negroes  whom  the  captain  knowingly  re- 
ceived on  board  aud  took  to  Brazil,  had 
manumission  papers  which  were  attested 
and  sealed  by  persons  who  purported  to  be 
Portuguese  notaries  public,  and  who  had 
officiated  as  such  in  other  matters.  Held 
that  if  the  captain  believed  that  the  papers 
were  genuine,  though  they  were  not  so  in 
fact,  and  took  the  negroes  on  board  sup- 
posing that  they  were  free,  he  could  not  be 
convicted.     Ibid. 

36.  To  show  the  intent  of  the  captain,  his 
acts  on  the  voyage  and  near  the  time  of  the 
alleged  offense  are  admissible  in  evidence ; 
but  not  what  was  done  by  him  on  a  previous 
voyage.     lb. 

37.  A  passenger  is  not  one  of  the  crew  or 
ship's  company  within  the  meaning  of  the 
act  of  Congress  of  1820,  ch.  113.  U.  S.  v. 
Libby,  1  Woodbury  &  Minot,  221. 

38.  Burden  of  proof.  Where  a  vessel  is 
bound  to  the  western  coast  of  Africa,  under 
strongly  suspicious  circumstances  that  she 
is  about  to  engage  in  the  slave  trade,  it  is 
incumbent  on  the  persons  connected  with 
her  to  explain  the  circumstances  under  pain 
of  forfeiture  of  the  vessel.  The  Slavers,  2 
Wall.  3.50;  lb.  375. 

See  PrRACY. 


Smuggling. 


What  is.  The  clandestine  importation  of 
dutiable  goods,  with  intent  to  defraud  the 
revenue,  constitutes  the  offense  of  smug- 
gling ;  and  not  the  non-payment  of,  or  not 
accounting  for  the  duties,  prior  to  their 
importation.  U.  S.  v.  Thomas,  4  Benedict, 
370;  2  Abb.  114.  The  offense  is  complete, 
as  soon  as  the  goods  are  clandestineh'  in- 
troduced.    Ibid. 

See  Revenue  law,  violation  of. 


Sobomn. 

1.  When  committed.     Tlie  penetration  of 


a  beast  by  a  man  against  the  order  of  nature, 
without  emission,  constitutes  the  offense  of 
sodomy.  Com.  v.  Thomas,  1  Va.  Cas.  307. 
As  the  criminal  code  of  Texas  leaves  the 
crime  against  nature  undefined,  such  crime 
is  not  punishable  in  that  State;  the  code 
providing  that  no  person  shall  be  punished 
for  any  act  or  omission,  as  a  jienal  offense, 
unless  the  same  is  expressly  defined,  and  the 
penalty  affixed.  Fennell  v.  State,  32  Texas, 
378,  Hamilton  and  Caldwell,  3 3.,  dissenting  ; 
and  see  Frazier  v.  State,  39  Texas,  390. 

2.  Indictment.  An  indictment  for  the 
crime  against  nature  is  sufficient,  which 
avers  that  the  defendant  "  against  the  order 
of  nature  carnally  knew,"  omitting  the 
words  "  had  a  venereal  affair."  Lambertson 
V.  People,  5  Parker,  200. 

3.  Testimony  of  accomplice.  On  the 
trial  of  an  indictment  for  sodomy  with  one 
S.  the  defendant  contended  that  as  S.  denied 
his  voluntary  participation  in  the  crime, 
and  as  the  district  attorney  admitted  that  S. 
was  in  fact  in  the  situation  of  an  accomplice, 
it  followed  that  he  knowingly  and  willfully 
testified  falsely,  and  that  therefore  the  de- 
fendant could  not  be  convicted  upon  the 
testimony  of  S.  Held  that  the  refusal  of  the 
court  so  to  instruct  the  jury  was  j^roper. 
Com.  V.  Snow,  111  Mass.  411. 


0pintiuni0£tquov0,Salcof. 

1.  Under  what  circumstances   illegal. 

2.  Complaint. 

3.  Indictment. 

4.  Evidence. 

5.  Verdict. 

6.  Seizure  and  condemnation  of  liquors. 

1.  Under   what   circumstances   illegal. 

1.  Constitutionality  of  statutes.  A  stat- 
ute requii'ing  a  license  to  sell  spirituous 
liquors  in  small  quantities,  is  not  in  deroga- 
tion of  sections  eight  and  ten  of  the  Con- 
stitution of  the  United  States.  Smith  v. 
People,  1  Parker,  583.  And  see  City  Coun- 
cil v.  Ahrens,  4Strobh.  241;  Austin  v.  State, 
10  Mo.  591. 

2.  The  act  of  New  York  of  April  !),  1855, 


566 


SFIEITUOUS  LIQUOKS,   SALE   OF. 


Under  what  Circumstances  Illegal. 


for  the  prevention  of  intemperance,  pauper- 
ism and  crime,  prohibiting  the  sale  of  liquor, 
is  not  unconstitutional.  "Wynhamer  v.  Peo- 
ple, 20  Barb.  5G7. 

3.  But  in  Pennsylvania,  the  statute  of 
1846,  which  authorized  the  citizens  of  cer- 
tain counties  to  decide  by  vote  whether  the 
sale  of  spirituous  liquors  should  be  continued 
in  said  counties,  and  imposing  a  penalty  for 
the  sale  of  such  liquors,  where  the  vote  was 
against  the  sale,  was  held  unconstitutional. 
Parker  v.  Com.  6  Barr,  507. 

4.  Construction  of  city  charter.  A  city 
was  empowered  by  its  charter  to  pass  ordi- 
nances for  numerous  specified  purposes,  and 
among  others  to  prohiljit  the  selling  or  giv- 
ing away  of  ardent  spirits  by  certain  persons 
named,  and  to  forbid  the  selling  or  giving 
away  of  such  spirits  to  certain  persons,  and 
to  "  make  any  other  by-laws  and  regulations 
which  may  seem  for  the  well-being  of  the 
city,"  &c.  Held  that  the  authority  of  the 
city  to  enact  ordinances  on  the  subject  of 
the  sale  of  spirituous  liquors  was  limited  by 
the  special  provisions  of  the  charter,  and 
that  the  general  clause  conferring  power  to 
make  any  other  by-laws  and  regulations  did 
not  enlarge  the  power.  State  v.  Ferguson, 
33  New  Hamp.  424. 

5.  What  deemed  spirituous  liquor.  In 
New  York,  under  the  statute  (1  R.  S.  680, 
§  15),  against  selling  liquors  by  retail  with- 
out license,  ale  is  included  in  the  term 
"  strong  and  spirituous  liquors."  Nevin  v. 
Ladue,  3  Deuio,  437.  A.nd  it  is  the  same  in 
Missouri,  under  the  statute  of  1851.  State 
V.  Lemp,  16  Mo.  389. 

6.  The  word  "beer,"  in  its  ordinary 
sense,  denotes  a  beverage  which  is  intoxicat- 
ing, and  is  within  the  meaning  of  the  words 
"strong  or  spirituous  liquors"  used  in  the 
New  York  statutes.  People  v.  Wheelock,  3 
Parker,  9. 

7.  Sale  of  imported  liquor.  To  give  the 
right  to  sell  imported  liquor  under  the  laws 
of  the  United  States,  it  must  remain  in  the 
hands  of  the  importer  and  be  sold  in  the 
condition  in  which  it  is  imported ;  and  all 
other  sales  are  subject  to  the  regulation  of 
State  laws.  Wynhamer  v.  People,  20  Barb. 
567. 


8.  Unlawful  granting  of  license.    An 

indictment  may  be  maintained  against  com- 
missioners of  excise  for  willfully  and  cor- 
ruptly granting  a  license  to  a  person  to  sell 
spirituous  liquors  as  an  innkeeper,  knowing 
that  he  is  not  possessed  of  the  requisite 
qualifications.  People  v.  Norton,  7  Barb. 
477. 

9.  Protection  afforded  by  license.  A 
tavern  license  is  a  personal  privilege  which 
is  not  transferable ;  nor  does  the  license  pass 
with  a  lease  of  the  tavern.  Com.  v.  Rucker, 
9  Dana,  310;  State  v.  Prettyman,  8  Barring. 
570.  The  same  is  true  of  a  grocery  license. 
Lewis  v.  U.  S.  1  Morris,  199. 

10.  The  terms  "  inn,  tavern,  or  hotel, "men- 
tioned in  the  act  of  New  York  of  1857,  in 
relation  to  the  granting  of  a  license  to  sell 
liquor,  are  used  synonymously  to  designate 
what  is  ordinarily  and  popularly  known  as 
an  inn  or  tavern,  or  place  for  the  entertain- 
ment of  travelers,  and  where  all  their  wants 
can  be  supplied.  People  v.  Jones,  54  Barb. 
311. 

11.  A  person  selling  spirituous  liquor  in  a 
room  of  an  inn  by  permission  of  the  land- 
lord, is  protected  by  the  license  of  the  inn. 
Duncan  v.  Com.  2  B.  Mon.  281. 

12.  But  where  A.  obtained  a  license 
to  keep  a  tavern,  and  B.  agreed  to  pay 
for  the  license,  and  sold  liquors  in  an  ad- 
joining room,  which  he  rented  from  A.,  it 
was  held  that  B.  was  not  protected  by  A.'s 
license,  but  was  lial^le  for  keeping  a  tippling 
house.     Com.  v.  Branamon,  8  B.  Mon.    374. 

13.  A  United  States  license  and  payment 
of  the  revenue  tax  constitute  no  defense  to 
the  sale  of  intoxicating  liquors  in  the  State 
contrary  to  the  law  of  the  same.  State  v. 
Delano,  54  Maine,  442 ;  McGuire  v.  Com.  3 
Wallace,  387. 

14.  License  only  applicable  to  single 
place.  A  person  who  has  a  license  to  retail 
has  no  right  to  conduct  the  business  in  more 
than  one  place.  State  v.  Walker,  16  Maine, 
241. 

15.  A  person  who  had  a  license  to  sell  in- 
toxicating liquors  at  his  stand  at  the  corner 
of  A.  and  B.  streets,  owned  another  stand 
adjoining  this,  with  an  internal  communica- 
tion between  the  two,  and  sold  liquors  in 


SPIEITUOUS  LIQUORS,  SALE  OF. 


5G7 


Under  what  Circumstances  Illegal. 


both.  Held  that  his  license  only  applied 
to  the  place  first  named.  State  v.  Frede- 
ricks, 16  Mo.  383. 

16.  Validity  of  license.  In  New  Hamp- 
shire, under  the  statute  (R.  S.  ch.  117,  §  5), 
giving  selectmen  power  to  license  retailers 
of  liquor,  a  license  to  sell  spirituous  liquors 
for  medicinal  purposes  only,  is  valid.  State 
V.  Emerson,  16  New  Hamp.  87. 

17.  Keeping  liquors  for  sale.  In  Maine, 
a  person  charged  with  keeping  intoxicating 
liquors  for  unlawful  sale,  cannot  be  convicted 
under  the  statute  (of  1858,  ch.  48),  simply 
for  the  fact  that  the  liquors  were  found  in 
his  possession,  or  that  they  were  intended 
for  sale  by  somebody;  but  only  by  his  hav- 
ing possession  with  an  intent  on  his  part  to 
sell  the  same  in  the  State  in  violation  of 
law,  or  with  the  intent  that  the  same  shall 
be  so  sold  by  some  other  person,  or  with  the 
intent  to  aid  some  other  person  in  such  un- 
lawful sale.  State  v.  Learned,  47  Maine, 
426;  State  v.  Miller,  48  lb.  570. 

18.  Sale  of  liquor  for  medicinal  purposes. 
It  is  no  defense  to  a  sale  of  spirituous 
liquor  without  a  license,  that,  at  the  time 
of  such  sale,  there  was  no  druggist  or  other 
person  licensed  to  sell  spirituous  liquors  in 
the  county,  that  the  sale  was  made  upon  the 
prescription  of  a  physician,  and  that  the 
liquor  sold  was  necessary  for  the  buyer's 
use,  either  as  a  medicine  or  for  the  preserva- 
tion of  his  health.  Com.  v.  Sloan,  4  Cush. 
52;  State  v.  Keys,  15  Vt.  405. 

19.  But  in  Indiana,  it  was  held  that  a 
■druggist,  on  a  proper  occasion  and  with  due 
caution,  might  retail  liquor,  to  be  used  only 
as  a  medicine,  without  being  guilty  of  an 
offense  against  the  statute.  Dowell  v.  State, 
2  Carter,  658. 

20.  What  constitutes  a  sale.  A  sale 
may  be  without  words.  If  a  customer  goes 
to  a  store,  helps  himself  openly  to  what  he 
wants,  and  places  within  reach  of  the  sales- 
man a  satisfactory  price,  it  is  a  sale.  State 
V.  Wiggin,  20  New  Ilamp.  449. 

21.  In  Massachusetts,  it  has  been  held  un- 
der the  statute  (R.  S.  ch.  47)  that,  where  A., 
not  being  licensed  to  sell  spirituous  liquor, 
takes  money  of  B.  for  some  other  article 
%vhic]i  B.  receives  from  him,  and  B.  there- 


upon takes  A.'s  spirituous  liquor  without 
any  words  concerning  it,  it  is  a  sale  of 
liquor.     Com.  v.  Thayer,  8  Mete.  525. 

22.  In  Indiana,  where  there  was  an  agree- 
ment for  the  sale  of  a  quart  of  liquor,  the 
price  of  a  quart  paid,  a  pint  taken  away  by 
the  purchaser,  and  the  other  pint  left  in  the 
cask  with  other  liquor,  it  was  held  to  be  a 
sale  of  less  than  a  quart  within  the  meaning 
of  the  statute.  Murphy  v.  State,  1  Carter, 
366;  s.  c.  1  Smith,  201. 

23.  Place  of  sale.  A  place  where  beer  is 
sold  by  the  glass  or  drink  is  a  tippling  house 
within  the  statute  of  Illinois.  Koop  v.  Peo- 
ple, 47  111.  327. 

24.  A  city  ordinance  which  prohibits  the 
using  or  keeping  of  intoxicating  liquors  in 
any  refreshment  saloon  or  restaurant  in  the 
city  is  constitutional ;  and  it  is  a  violation 
of  such  an  ordinance  to  keep  liquor  in  a 
cellar  underneath  an  eating  house  or  restau- 
rant. State  V.  Clark,  28  New  Hamp.  176. 
But  it  is  not  a  violation  of  a  city  ordinance 
which  provides  that  "  no  intoxicating  liquors 
shall  be  used  or  kept  in  any  refreshment 
saloon  or  restaurant  within  the  city  for  any 
purpose  whatever,"  to  keep  a  shop  for  the 
manufacture  and  sale  of  tobacco,  snuff  and 
cigars,  and  strong  beer  by  the  glass.  State 
V.  Hogan,  30  New  Hamp.  268. 

25.  In  Alabama,  the  defendant's  buggy  in 
which  he  carried  liquor  for  sale  at  a  public 
administrator's  sale  in  the  country,  was  held 
to  constitute  ''  his  premises "  within  the 
statute  (Code,  §  1058).  Pearce  v.  State,  40 
Ala.  420;  approving  Brown  v.  State,  31  lb. 
353 ;  Easterling  v.  State,  30  lb.  46,  and  Pat- 
terson V.  State,  36  lb.  298. 

26.  Where  a  person  kept  a  few  goods  for 
sale  in  order  to  evade  the  law  against 
tippling  shops,  and  it  appeared  that  his 
principal  business  was  selling  liquor,  and 
that  the  liquor  was  drunk  on  his  premises, 
it  was  held  that  he  was  not  within  the  pro- 
visions of  the  statute  which  excepted  mer- 
chants selling  liquor  to  be  used  away  from 
their  premises.  Com.  v.  McGeorge,  9  B. 
Mon.  3. 

27.  A  citizen  of  New  Hampshire  agreeing 
to  sell  to  a  citizen  of  Vermont  part  of  a  cask 
of  brandy,  which  was  then   in   the   latter 


568 


SPIRITUOUS  LIQUORS,  SALE  OF. 


Under  what  Circumstances  Illegal. 


Complaint. 


State  in  transit  from  New  York  to  New 
Hampshire,  the  purchaser  carrieti  the  cask 
to  his  house,  where  he  drew  out  what  he 
Avanted,  and  took  the  bah^nce  with  the  cask 
to  the  vendor's  store  in  New  Hampshire. 
Held  that  the  vendor  was  guilty  of  a  viola- 
tion of  the  statute  of  Vermont  of  1853  to 
prevent  the  traffic  in  intoxicating  liquors. 
State  V.  Comings,  28  Vt.  508. 

28.  Sale  to  several  persons  at  the  same 
time.  One  who  retails  spirituous  liquors  to 
two  different  persons  at  the  same  time  and 
place,  is  guilty  of  two  offenses.  Com.  v. 
Dow,  2  Va.  Oas.  26.  In  Verniont,  however, 
where  liquor  is  furnished  in  answer  to  a 
single  call,  at  the  same  time,  and  by  a 
single  act,  it  constitutes  but  one  act  of  fur- 
nishing, and  the  party  incurs  but  one  penalty, 
notwithstanding  it  may  be  drank  by  more 
than  one  person.  But  where  the  liquor  is 
furnished  either  on  a  single  call  or  more,  if 
it  be  done  at  different  times  and  by  separate 
acts,  no  matter  how  closely  these  several  acts 
may  follow  each  other  in  point  of  time, 
each  act  of  furnishing  constitutes  a  separate 
offense,  and  subjects  the  party  to  a  separate 
penalty,  whether  the  liquor  be  all  drank  by 
the  same  person  or  by  different  i^ersons. 
State  V.  Barron,  ;«  Vt.  57. 

29.  Sale  by  clerk  or  agent.  It  is  no  de- 
fense to  an  indictment  for  selling  liquor 
contrary  to  law,  that  the  accused  did  so  as 
clerk  or  agent  of  the  person  jointly  indicted 
with  him,  and  by  his  direction.  French  v. 
People,  3  Parker,  114;  Hays  v.  State,  13 
Mo.  246;  State  v.  Bryant,  14  lb.  340; 
Schmidt  V.  State,  lb.  137;  Thompson  v. 
State,  5  Humph.  138. 

30.  In  Vermont,  where  the  owner  of  a 
store  at  which  spirituous  liquors  were  sold 
resided  out  of  the  State,  and  the  business  of 
the  store  was  managed  by  his  general  agent, 
it  was  held  that  such  general  agent  was 
liable  to  the  penalty  imposed  by  the  statute, 
although  the  liquors  were  in  fact  sold  by 
the  clerks.  State  v.  Dow,  21  Vt.  484.  And 
in  IVIassachusetts,  a  mere  hired  agent  who 
had  no  interest  in  tlie  profits,  and  acted  in 
the  presence  and  under  the  direction  of  his 
employer,  was  held  liable  under  the  statute 
(R.  S.  ch.  47,  §§  1,  2).     Com.  v.  Hadley,  11 


Mete.    6G.      And   see   State   v.  Brown,    31 
Maine,  520. 

2.  Complaint. 

31.  Averment  of  time.  A  complaint 
which  charges  a  single  sale  of  spirituous 
liquor  to  have  been  made  on  the  23d  and 
29th  of  July,  is  fatally  defective  for  uncer- 
tainty as  to  time.  Com.  v.  Adams,  1  Gray, 
481. 

32.  In  Connecticut,  the  complaint  of  a 
grand  juror  for  a  violation  of  the  statute  (of 
1846,  §  2)  regulating  the  sale  of  wines  and 
spirituous  liquors,  charged  that  the  offense 
was  committed  "on  or  about  the  24th  day 
of  May,  1847."  Held  not  bad  for  uncertainty 
as  to  time,  nor  because  it  was  expressed  in 
figures.  Rawson  v.  State,  19  Conn.  292; 
approved  in  State  v.  Fuller,  34  lb.  280. 

33.  Description  of  place.  In  Vermont,  a 
complaint  under  the  statute  (G.  S.  ch.  94, 
§  22),  for  the  search  of  premises  and  seizure 
of  liquors,  which  designates  the  place  as  the 
American  Hotel  and  the  adjacent  outbuild- 
ings appurtenant  to  it,  designates  a  single 
establishment,  and  is  sufficiently  specific. 
State  V.  Liquor,  38  Vt.  387. 

34.  Charging  offense  in  the  alternative. 
A  complaint  which  alleged  that  the  defend- 
ant sold  wine,  spirituous  liquor,  or  other  in- 
toxicating beverage  to  R.,  he  being  a  com- 
mon drunkard,  was  held  bad  in  charging 
the  offense  in  the  alternative.  Smith  v. 
State,  19  Conn.  493. 

35.  Duplicity  in.  All  substantive  allega- 
tions should  be  specific  and  definite.  Where 
a  complaint  charged  that  certain  liquors 
were  kept  or  deposited  by  P.,  or  by  some 
other  person  with  his  consent,  and  were  in- 
tended for  sale  in  violation  of  law,  it  was 
held  that  as  the  keeping  and  depositing, 
and  consent  to  keep  and  deposit  intoxicat- 
ing liquors,  were  distinct  and  different  acts, 
the  complaint  Avas  bad.  State  v.  ]Moran,  40 
Maine,  129. 

36.  Where  a  complaint  for  keeping  in- 
toxicating liquors,  with  intent- to  sell  them 
contraiy  to  law,  alleged  that  they  were  kept 
at  the  defendant's  "  store,  shop,  and  dwell- 
ing-house adjacent  thereto,  with  intent  to 
sell,  furnish,  and  give  away  the  same  with- 


SPIRITUOUS  LIQUORS,  SALE  OF. 


5G9 


Complaint. 


Indictment. 


out,"  «&c.,  it  was  held  not  bad  for  duplicity, 
and  that  the  words  the  same  referred  with 
sufficient  directness  to  the  intoxicating 
liquors  previously  mentioned.  State  v. 
Clark,  44  Vt.  636. 

37.  In  Massachusetts,  a  complaint  under 
the  statute  (R.  S.  cli.  47,  §  3),  which  al- 
leged that  the  defendant  did  presume  to  be 
a  retailer,  and  did  sell  to  a  person  named 
therein  spirituous  liquor,  was  held  not  bad 
for  duplicity,  or  defective  in  not  showing 
what  kind  of  li(.uor  the  defendant  sold,  to 
whom  it  was  delivered,  or  by  whom  it  was 
carried  away.  Com.  v.  Wilcox,  1  Cush. 
503. 

38.  Unnecessary  averments.  In  Maine, 
a  complaint  alleging  that  intoxicating 
liquors  were  kept  by  the  defendant  in  a 
place  described,  he  "  not  being  then  and 
there  authorized  to  sell  said  liquors  within 
said  P."  and  that  the  same  were  "intended 
for  sale  in  this  State  in  violation  of  law," 
without  alleging  that  they  were  unlawfully 
kept,  and  deposited,  or  negativing  the  au- 
thority of  the  defendant  to  sell  intoxicating 
liquors  within  the  State,  was  held  sufficient. 
State  v.  Connelly,  63  Maine,  212. 

39.  In  Massachusetts  a  complaint  under 
the  statute  (R  S.  ch.  47,  §  2),  alleged  that 
the  defendant  not  being  first  duly  licensed 
according  to  law,  as  an  innholder  or  com- 
mon victualler,  and  without  any  authority, 
&c.,  then  and  thei'e  sold  to  A.  intoxicating 
liquor,  to  be  used  in  and  about  his,  the  said 
defendant's,  dwelling-house,  &c.  Held  that 
the  averment  that  the  defendant  was  not  li- 
censed as  an  innholder  or  common  victualler 
might  be  rejected  as  surplusage,  and  the  de- 
fendant convicted  upon  proof  of  the  other 
averments.     Com.  v.  Baker,  10  Cush.  405. 

40.  In  a  complaint  for  selling  intoxicating 
liquors  in  violation  of  law,  the  words  ' '  being 
a  second  glass  of  intoxicating  liquor  to  said 
L.  S.  then  and  there  sold  and  delivered  at 
said  B.  to  said  N.  T.,"  are  not  descriptive, 
but  may  be  rejected  as  surplusage.  State 
V.  Staples,  4.')  lAIaine,  820, 

41.  Conclusion.  Where  a  complaint  al- 
leged not  only  that  the  defendant  on  divers 
days  and  times  had  been  drunk  and  intoxi- 
cated by  the  voluntary  and  excessive  use  of 


spirituous  and  intoxicating  liquors,  but  that 
on  a  day  named  she  was  a  common  drunk- 
ard, it  was  held  sufficient  without  conclud- 
ing "  to  the  common  nuisance  of  all  the 
citizens."     Com.  v.  Boon,  2  Gray,  74. 

3.  Indictment. 

42.  Not  barred  by  previous  conviction. 
A  conviction  for  retailing  to  one  person  will 
not  bar  an  indictment  for  retailing  to 
another  previous  to  the  finding  of  the  in- 
dictment on  which  the  conviction  was  had. 
State  v.  Cassety,  1  Rich.  90. 

43.  Not  taken  away  by  action.  Where 
a  statute  prohibits  an  act  under  a  penalty  to 
be  enforced  by  indictment,  and  a  later 
statute  gives  a  qui  tarn  action  for  such  pen- 
alty, the  latter  docs  not  take  away  the 
remedy  by  indictment.  Bush  v.  Republic, 
1  Texas,  455.  In  New  York,  the  offense  of 
selling  strong  and  spirituous  liquors  and 
wines  without  license,  under  ch.  628  of  laws 
of  1857,  is  indictable,  though  not  among 
the  offenses  specially  declared  misdemean- 
ors.    Behan  v.  People,  17  N.  Y.  516. 

44.  Joinder  of  parties.  Two  or  more 
persons  may  be  jointly  indicted  for  selling 
spirituous  liquors  without  license.  Com.  v. 
Sloan,  4  Cush.  53;  Com.  v.  Harris,  7  Graft. 
600  ;  State  v.  Caswell,  2  Humph.  399. 

45.  Allegation  of  time.  An  indictment 
which  alleges  that  the  defendant  was  a 
common  seller  of  spirituous  liquor  on  the 
first  day  of  December,  and  on  divers  days 
and  times  between  that  day  and  "  the  day 
of  the  finding,  jjresentment  and  filing  of  the 
indictment,"  is  bad  for  uncertainty.  Com. 
V.  Adams,  4  Gray,  27. 

46.  Where  an  indictment  for  selling 
liquors  without  license  alleged  that  the  of- 
fense was  committed  on  the  1st  of  August, 
1857,  and  "on  divers  other  days  and  times 
between  that  day  and  the  day  of  the  find- 
ing of  the  indictment,  to  wit,  the  1st  day  of 
July,  1857,"  it  was  held  that  the  continuando 
might  be  rejected  as  surplusage.  People  v. 
Gilkinson,  4  Parker,  26. 

47.  In  an  indictment  charging  the  sale  of 
spirituous  liquors  on  Sunday,  the  day  of  the 
month  is  immaterial.  People  v.  Ball,  42 
Barb.  324;  State  v.  Eskridge,  1  Swan,  413. 


570 


SPIRITUOUS   LIQUORS,  SALE  OF. 


Indictment. 


48.  Charging  sale.  Where  an  indict- 
ment for  selling  spirituous  liquors  without 
license,  to  be  drank  on  the  premises  of  the 
seller,  charged  the  sale  of  liquor  by  the  de- 
fendant, to  be  drank  on  his  premises,  "  with- 
out having  obtained  a  license  therefor  as  a 
tavern-keeper,  or  without  being  in  any  way 
authorized  to  sell  the  same  as  aforesaid,"  it 
was  held  that  the  word  oi'  did  not  vitiate 
the  statement  of  the  offense,  but  tliat  all 
that  followed  the  word  o?'  was  surplusage. 
People  V.  Gilkinson,  4  Parker,  2G. 

49.  An  indictment  under  a  statute  pro- 
hibiting the  sale  of  intoxicating  liquor  "  to 
be  used  in  or  about  the  house  of "  the 
vendor,  is  sufficient  which  alleges  that  the 
liquor  was  sold  to  be  "  used,  consumed,  and 
drunk  in  the  dwelling-house  by  the  said  M., 
then  and  there  used  and  occupied."  Com. 
V.  Moulton,  10  Cush.  404. 

50.  In  Maine,  an  indictment  under  the 
statute  (R.  S.  ch.  17,  §  1).  which  alleged  that 
the  defendant  kept  a  shop  for  the  illegal 
sale  of  intoxicating  liquors,  and  that  he 
there  sold  liquors  contrary  to  law,  and  for 
tippling  purposes,  is  sufficient  without  neg- 
ativing the  defendant's  authority  to  sell. 
State  V.  Lang,  63  Maine,  215. 

51.  An  indictment  charging  that  J.  B. 
and  P.  B.,  "not  being  then  and  there  a 
licensed  taverner  or  retailer,"  did  sell  spir- 
ituous liquors,  &c.,  is  good ;  it  being  equiv- 
alent to  the  allegation  that  J.  B.,  not  being 
a  licensed  taverner,  &c.,  and  P.  B.,  not  being 
a  licensed  taverner,  &c.,  did  sell,  &c.  State 
V.  Burns,  20  New  Ham  p.  550. 

52.  Where  a  statute  imposes  a  penalty  for 
selling  any  intoxicating  liquor,  an  indict- 
ment is  sufficiently  definite  which  charges 
the  sale  of  "  two  glasses"  of  such  liquor. 
State  V.  Rust,  35  New  Hamp.  438. 

53.  An  indictment  for  being  a  common 
seller  of  intoxicating  liquors  is  sufficient 
which  alleges  that  the  defendant  during  a 
fixed  period  of  time  sustained  that  charac- 
ter, without  averring  specific  acts  of  sale. 
Com.  V.  Wood,  4  Gray,  11. 

54.  The  charge  in  an  indictment  of  being 
a  common  seller  of  spirituous  liquors,  in- 
cludes a  charge  of  making  actual  sales. 
Three  difierent  sales  on  the  same  day  would 


authorize  a  conviction  for  being  a  common 
seller.     State  v.  Day,  37  Maine,  244. 

55.  Description  of  liquor.  An  indict- 
ment charging  the  sale  of  rum,  brandy  and 
gin,  need  not  allege  that  they  were  spiritu- 
ous liquors.  State  v.  Munger,  15  Vt.  290. 
In  Indiana,  it  was  held  that  the  indictment 
need  not  specify  the  kinds  of  liquor  sold. 
State  V.  Mullinix,  6  Blackf.  544.  In  Mis- 
souri, an  indictment  for  keeping  a  dram 
shop  must  allege  the  kind,  quantity  and 
price  of  the  liquor  sold.  Neales  v.  State,  10 
Mo.  488. 

56.  An  indictment  which  charges  that  the 
defendant  sold  spirituous  liquors  without 
license,  in  quantities  less  than  the  revenue 
laws  allowed  to  be  imported,  need  not  state 
whether  or  not  the  liquors  were  imported. 
State  V.  Crowell,  30  Maine,  115. 

57.  An  indictment  under  the  act  of  Con- 
gress of  .July  13,  1866,  §  23  (14  Stats.  153), 
for  conducting  the  business  of  a  distiller  of 
spirits  without  the  payment  of  the  special 
tax,  need  not  allege  particular  acts  of  dis- 
tilling or  the  kinds  of  spirit.  Charging  that 
the  defendant  did  ''then  and  there  distill  and 
manufacture  spirits  to  a  very  large  amount, 
to  wit,  to  the  amount  and  number  of  one 
thousand  gallons  of  proof  spirit,"  is  sufficient. 
U.  S.  V.  Fox,  Low.  199. 

58.  An  indictment  for  retailing  liquor 
without  license,  which  uses  the  word  '•  spir- 
itual "  instead  of  "  spirituous,"  is  not  for 
that  reason  defective.  State  v.  Clark,  3 
Ired.  451. 

59.  Averment  of  place  of  sale.  An  in- 
dictment under  a  statute  prohibiting  the 
sale  of  liquor  within  two  miles  of  any  re- 
ligious assembly,  at  "  a  booth,  tent,  wagon, 
huckster  shop,  or  other  place  erected, 
brought,  kept,  continued  or  maintained," 
alleged  a  selling  within  half  a  mile  of  a  re- 
ligious assembly,  but  did  not  state  that  the 
liquor  was  sold  at  a  booth,  tfrc,  kept,  &c. 
Ee/d  insufficient.  Bonser  v.  State,  Smith, 
Ind.  408. 

60.  Naming  person  to  whom  sale  was 
made.  An  indictment  for  selling  liquor  to 
divers  persons  without  license,  must  name 
the  persons  to  whom  the  liquor  was  sold,  or 


SPIRITUOUS  LIQUOES,  SALE  OF. 


571 


Indictment. 


state  that  they  are  unknown.  State  v.  Stuck j', 
2  Blackf.  289. 

61.  In  New  York,  Vermont,  and  Missouri, 
an  indictment  for  selling  spirituous  liquor 
without  license  need  not  give  the  name  of 
the  person  to  whom  the  sale  was  made. 
People  V.  Adams,  17  Wend.  475;  State  v. 
Hunger,  15  Vt.  290 ;  State  v.  Ladd,  15  Mo. 
430.  The  contrary  seems  to  have  been  held 
in  Delaware  and  North  Carolina.  State  v. 
Walker,  3  Harring.  597;  State  v.  Faucett,  4 
Dev.  &  Batt.  107. 

62.  In  Massachusetts,  an  indictment  under 
the  statute  (of  1852,  ch.  322,  §12),  for  being 
a  common  seller  of  spirituous  liquor,  need 
not  contain  an  allegation  as  to  particular 
sales,  or  describe  the  persons  to  whom  the 
sales  were  made,  or  allege  that  the  liquors 
sold  "  were  not  imported  in  original  jDack- 
ages,"  or  that  "  they  were  not  cider  for  other 
purposes  than  that  of  a  beverage,''  &c. 
Com.  V.  Hart,  11  Cush.  130.  See  Com.  v. 
Wilson,  lb.  412. 

63.  Where  an  indictment  for  the  sale  of 
spirituous  liquors  contrary  to  law,  described 
the  person  to  whom  the  sale  was  made  as 
Mary  Garland,  and  it  was  proved  that  al- 
though that  was  her  name  at  the  time  of 
the  sale,  yet  that  when  the  indictment  was 
found,  she  had  acquired  by  marriage  the 
name  of  Mary  Morrison,  it  was  held  that  the 
variance  was  fatal.  Com.  v.  Brown,  2  Gray, 
358. 

84.  Where  the  sale  of  spirituous  liquor 
without  license  is  made  to  an  agent,  an  in- 
dictment therefor  may  charge  the  sale  to 
have  been  made  either  to  the  principal  or 
agent.  State  v.  Wentworth,  35  New  Hamp. 
442. 

65.  In  Virginia,  it  was  held  that  an  in- 
dictment for  selling  spirituous  liquor  with- 
out a  license,  might  charge  the  sale  to  two 
persons  in  the  same  count.  Peer's  Case,  5 
Gratt.  674. 

66.  Charging  distinct  sales.  It  is  not  a 
ground  for  arresting  judgment  that  the  in- 
dictment contained  in  addition  to  a  count 
charging  the  defendant  with  being  a  com- 
mon seller,  other  counts  charging  distinct 
sales  to  particular  persons.  Com,  v.  Moore- 
house,  1  Gray,  470. 


67.  An  indictment  which  alleges  that  the 
defendant  sold  at  retail  to  divers  citizens  of 
the  State,  and  to  divers  persons  to  the  jurors 
unknown,  strong  and  spirituous  liquors,  to 
wit:  three  gills  of  brandy,  three  gills  of 
rum,  three  gills  of  gin,  «fec.,  is  not  bad  for 
uncertainty  and  duplicity.  Osgood  v.People, 
39  N.  Y.  449. 

68.  The  refusal  in  such  case  of  the  request 
of  the  defendant's  counsel,  that  the  district 
attorney  be  required  to  elect  as  to  the  kind 
of  liquor  sold,  furnished  no  ground  for  re- 
versal, it  being  a  matter  of  discretion  on  the 
conduct  of  the  trial,  and  affording  no  basis 
for  an  exception.     lb. 

69.  In  Maine,  an  indictment  was  held  to 
charge  but  one  offense,  which  alleged  that 
the  defendant  "  did  take  upon  himself,  and 
presume  to  be  a  common  retailer  of  wine," 
&c.,  without  license,  and  "did  then  and 
there,  as  aforesaid,  sell,  and  cause  to  be  sold, 
to  divers  persons  to  the  jurors  unknown, 
divers  quantities  of  strong  liquor."  State 
V.  Stimson,  17  Maine,  154. 

70.  In  the  same  State,  an  indictment 
which  charged  the  defendant  with  being  a 
common  seller  of  intoxicating  liquors,  on 
the  1st  of  July,  1858,  and  on  divers  days 
and  times  between  that  day  and  the  finding 
of  the  indictment,  the  following  October,  is 
not  bad  for  duplicity,  although  offenses 
committed  prior  to  the  15th  of  July  were 
punishable  by  the  act  of  1856,  and  those 
committed  subsequent  to  that  date  by  the 
act  of  1858.  Held  further,  that  the  words, 
"and  on  divers  days,"  &c.,  might  be  re- 
jected as  surplusage,  and  a  nol:  pros,  be  en- 
tered as  to  offenses  which  were  committed 
after  the  law  of  1858  took  effect.  State  v. 
Pillsbury,  47  Maine,  449. 

71.  In  the  same  State,  it  was  held  that  an 
indictment  was  not  bad  for  duplicity  which 
alleged  that  the  defendant,  on  a  certain  day 
and  on  certain  other  days  and  times,  be- 
tween that  day  and  the  finding  of  the  in- 
dictment, kept  a  shop  which  he  used  for  the 
illegal  keeping  and  sale  of  intoxicating 
liquors,  and  then,  and  on  said  other  days 
and  times,  resorted  to  for  tippling  purposes, 
with  the  knowledge  and  consent  of  the  de- 
fendant, and  in  which  said  shop  intoxicat- 


572 


SPIRITUOUS  LIQUORS,  SALE  OF. 


Indictment. 


Evidence. 


iiig  liquors  were  then,  on  said  other  days 
and  times,  sold  by  the  defendant,  contrary 
to  law,  for  tippling  purposes,  to  be  drunk  in 
said  shop,  and  then  and  on  said  other  days 
and  times  were  actually  drunk  therein,  with 
the  knowledge  and  consent  of  the  defendant, 
to  the  damage  and  common  nuisance  of  all 
citizens  of  said  State,  &c.  State  v.  Lang, 
G3  Maine,  215. 

72.  But,  in  Maine,  under  the  statute  (R.  S. 
ch.  27,  §  20),  the  "  carrying  for  sale,  or  offering 
for  sale,  or  offering  to  obtain,  or  obtaining  or- 
ders for  the  sale  or  delivery  of  any  spirituous, 
intoxicating,  or  fermented  liquors,"  are  dis- 
tinct and  independent  offenses,  and  the  join- 
der of  them  in  the  same  count  is  ground  of 
demurrer.     State  v.  Smith,  61  Maine,  386. 

73.  In  Massachusetts,  where  an  indict- 
ment charged  that  the  defendant  sold  spirit- 
uous liquor  without  license  on  a  day  named, 
"  and  on  divers  other  days  and  times, "  it 
was  held  that  the  latter  allegation  might  be 
rejected  as  surplusage,  and  the  defendant  be 
convicted  of  a  single  act  of  selling.  Cora.  v. 
Bryden,  9  Mete,  137. 

4.  Evidence.     •^ 

74.  Maintaining  building  for  sale  of 
liquor.  An  indictment  which  alleges  that 
the  defendant  kept  and  maintained  a  tene- 
ment in  a  building  for  the  illegal  sale  of 
intoxicating  liquors,  is  supported  by  proof 
that  he  used  the  cellar  in  his  dwelling-house 
for  that  purpose.  Com.  v.  Welch,  2  Allen, 
510. 

75.  In  Massachusetts,  an  indictment  charg- 
ing a  party  with  maintaining  a  building  for 
the  illegal  sale  of  intoxicating  liquors,  under 
the  statute  (of  1855,  cb.  405),  is  not  sup- 
ported by  proof  that  the  defendant  occupied 
only  a  part  of  the  building,  the  residue  being 
occupied  by  other  persons.  Com.  v.  Mc- 
Caughey,  9  Gray,  296.  But  it  is  otherwise 
where  the  defendant  occupies  the  entire 
premises,  using  only  a  part  for  the  illegal 
purpose.     Com.  v.  Godley,  11  lb.  454. 

76.  Keeping  liquor  for  sale.  Under  an 
indictment  for  keeping  liquor  for  sale,  it  is 
unnecessary  to  prove  an  oifer  or  an  attempt 
to  sell.  State  v.  McGlynn,  34  New  Ham]). 
422. 


77.  Giving  liquor  away.  Evidence  of 
giving  away  spirituous  liquor  is  admissible 
under  an  information  against  a  person  for 
furnishing  it.  State  v.  Freeman,  37  Vt. 
520. 

78.  On  the  trial  of  an  indictment  for  sell- 
ing liquor  without  a  license,  it  is  proper  for 
the  court  to  instruct  the  jury  to  inquire 
whether  the  language  used  by  the  parties  to 
the  alleged  sale,  and  their  accompanying 
acts,  were  employed  by  them  to  effect  a  sale 
of  the  liquor  under  such  disguises  as  would 
render  detection  difficult;  or  whether  it  was 
the  purpose  of  the  defendant  to  bestow,  and 
of  the  others  to  receive,  the  liquors  as  a  gift. 
State  V.  Simons,  17  New  Hamp.  83. 

79.  Sale  by  servant  or  agent.  An  un- 
lawful sale  of  spirituous  liquor  by  the 
servant  or  agent  of  the  owner  would  only 
be  prima  facie  evidence  of  the  assent  of  the 
latter  to  the  sale.  Com.  v.  Nichols,  10 
Mete.  259. 

80.  On  the  trial  of  an  indictment  for  the 
illegal  sale  of  intoxicating  liquor,  a  sale  of 
liquor  was  proved  at  the  defendant's  public 
house,  by  his  servant.  Held  competent  to 
prove  that  the  defendant  was  at  that  time 
engaged  in  such  tratfic,  as  tending,  with 
other  proofs,  to  establish  the  authority  of 
the  servant  to  make  the  sale  in  question. 
State  V.  Bonney,  39  New  Hamp,  206. 

81.  Sale  to  agent.  Under  a  complaint 
for  selling  intoxicating  liquor  contrary  to 
law,  evidence  of  a  sale  to  an  agent,  and  that 
the  agent  informed  the  defendant  that  she 
was  acting  for  other  parties,  will  not  sustain 
an  allegation  of  a  sale  to  the  agent.  Com. 
V.  Remby,  2  Gray,  508. 

82.  Sale  to  minor.  On  a  charge  of  sell- 
ing spirituous  liquor  to  a  minor,  knowing 
him  to  be  such,  delivery  of  the  liquor  is 
sutEcient  evidence  of  sale;  and  it  is  no 
defense  that  a  person  to  whom  the  liquor 
might  lawfully  have  been  sold  sent  the 
minor  for  it,  with  the  money,  and  that  the 
defendant  was  so  told  when  he  let  the 
minor  have  it.  State  v.  Faii-field,  37  Maine, 
517. 

83.  Proof  that  the  liquor  sold  was  in- 
toxicating. The  question  whether  the 
liquor  sold  was  intoxicating  is  one  of  fact 


SPIEITUOUS  LIQUOES,  SALE  OF. 


573 


Evidence. 


fur  the  jury.  State  v.  Wall,  34  Maine,  165  ; 
State  V.  McCafferty,  63  lb.  223  ;  State  v. 
Barron,  37  Vt.  57. 

84.  It  is  not  erroneous  to  instruct  the  jury 
that  they  may  infer  that  gin  is  intoxicating, 
■without  any  evidence  other  than  that  of  its 
proijerties  or  qualities.  Com.  v.  Peckham, 
2  Gray,  514. 

85.  An  indictment  for  selling  spirituous 
liquors  to  A.  is  supported  by  proof  that  he 
sold  that  he  sold  to  A.  brandy  or  gin  mixed 
with  sugar  and  water.  Com.  v.  White,  10 
Mete.  14. 

86.  Where  the  indictment  charged  the 
sale  of  "  strong  and  spirituous  liquors,"  to 
wit,  "one  pint  of  strong  beer,"  and  it  was 
proved  that  the  defendant  sold  "Dutch 
beer,"  it  was  held  that  there  was  no  material 
variance.    People  v.  Wheelock,  3  Parker,  9. 

87.  A  witness  who  has  been  in  the  habit 
of  drinking  fermented  liquors,  and  who  can 
distinguish  them  by  their  taste,  though  he 
has  no  special  knowledge  of  chemistry,  is 
competent  to  give  his  opinion  as  to  whether 
lager  beer  is  or  is  not  a  fermented  liquor. 
Merkle  v.  State,  37  Ala.  139. 

88.  Quantity  of  liquor  sold.  An  indict- 
ment charging  that  the  defendant  sold  a 
pint  of  spirituous  liquor  without  license,  is 
supported  by  proof  that  he  sold  half  a  pint. 
State  V.  Cooper,  16  Mo,  551 ;  or  that  he  sold 
two  glasses  of  such  liquor.  State  v.  Con- 
nell,  38  New  Hamp.  81.  And  under  an 
indictment  alleging  that  the  defendant  sold 
a  pint  of  rum,  it  is  sufficient  to  prove  that 
he  sold  a  quart.  State  v.  Moore,  14  New 
Hamp.  451 ;  Burke's  Case,  6  Leigh,  634. 

89.  Person  to  whom  ths  sale  was  made. 
A  complaint  for  a  sale  of  intoxicating 
liquors  contrary  to  law,  to  "  George  E. 
Allen,"  is  not  supported  by  proof  that  the 
liquor  was  sold  to  George  Allen;  unless  it 
be  proved  that  the  vendee  was  known  by 
the  latter  name.  Com.  v.  Sliearman,  11 
Cush.  546. 

90.  Where  the  indictment  charged  a  sale 
of  intoxicating  liquor  to  "  Cornelius  E. 
Maloney,"  and  tiie  sale  was  proved  to  have 
been  made  to  "  Dr.  Maloney,"  the  variance 
was  held  immaterial.  Com.  v.  Dillane,  ] 
Gray,  483. 


91.  A  complaint  which  alleges  the  unlaw- 
ful sale  of  intoxicating  liquor  to  a  person 
unknown,  is  sustained  by  proof  of  a  sale  to 
a  certain  person,  and  that  he  was  not 
known  to  the  complainant  when  lie  made 
the  complaint.  Com.  v.  Hendrie,  2  Gray,  503. 

92.  Where  the  indictment  charged  that 
spirituous  liquor  was  sold  without  license, 
to  persons  to  the  grand  jury  unknown,  it 
was  held  that  evidence  that  the  persons 
were  known  to  the  grand  jury  constituted 
no  variance.  State  v.  Ladd,  15  Mo.  430; 
Halstead's  Case,  5  Leigh,-  724. 

93.  In  Alabama,  on  the  trial  of  an  indict- 
ment for  selling  spirituous  liquor  to  a  free 
person  of  color,  it  was  held  that  the  prose- 
cution might  show  the  status  of  the  person 
to  whom  the  liquor  was  sold,  by  hearsay 
and  general  reputation.  Tucker  v.  State,  24 
Ala.  77. 

94.  Time  of  sale.  When  the  indictment 
charges  a  single  sale  of  intoxicating  liquor, 
the  time  need  not  be  proved  as  laid.  Com. 
V.  Dillane,  1  Gray,  483.  And  where  a  sale 
is  alleged  to  have  been  made  on  a  particular 
day  of  the  month,  there  is  no  presumption 
that  it  was  after  the  finding  of  the  indict- 
ment,   lb. 

95.  On  the  trial  of  an  indictment  for  the 
sale  of  intoxicating  liquor  on  the  first  day 
of  March,  it  is  sufficient  to  prove  a  sale  on 
the  seventeenth  of  that  month.  Com.  v. 
Kelly,  10  Cush.  69. 

96.  Where  several  complaints  charged  the 
defendants  with  unlawful  sales  of  intoxicat- 
ing liquor  on  diff'erent  days,  it  was  held 
that  as  the  day  alleged  was  immaterial,  the 
defendant  having  been  proved  guilty  on 
one  of  the  complaints  might  be  sentenced 
thereon,  and  a  new  trial  be  granted  on  the 
others.     Com.  v.  Remby,  2  Gray,  508. 

97.  Place  of  sale.  In  South  Carolina, 
where  on  the  trial  of  an  indictment  for  re- 
tailing spirituous  liquor  without  a  license, 
the  evidence  did  not  show  that  the  defend- 
ant's store  was  in  the  district  laid  in  the 
indictment,  it  was  held  that  the  jury  might 
infer  that  it  was  in  such  district,  from  facts 
within  their  own  knowledge.  State  v. 
Williams,  3  Hill,  S.  C.  91. 

98.  Under     a     statute      providing     that 


574 


SPIPJTUOUS   LIQUORS,  SALE  OF. 


Evidence. 


"when  an  offense  shall  be  committed  on  the 
boundary  of  two  counties  or  within  five 
hundred  yards  of  such  boundary,  an  indict- 
ment for  the  same  may  be  found,  and  a  trial 
and  conviction  thereon  may  be  had  in 
either  of  such  counties,"  an  indictment  for 
selling  siDirituous  liquors  without  a  license 
charged  that  the  offense  was  committed  "  at 
the  town  of  R.,  in  the  county  of  S.,  and 
on  the  boundaries  of  the  two  counties  of  S. 
and  Y.  aforesaid,  and  within  five  hundred 
yards  of  such  boundary."  The  proof  showed 
that  the  ofteuse  was  committed  in  the  town 
of  R.,  in  S.  county,  and  within  less  than  five 
hundred  yards  of  the  boundary  line  between 
the  counties  of  Y.  and  S.,  but  not  precisely 
on  such  dividing  line.  Held  that  there 
was  no  vavjance.  People  v.  Davis,  45  Barb. 
494. 

99.  Place  of  drinking.  Although  in 
general,  it  is  a  question  of  fact  for  the  jury 
whether  the  place  of  the  drinking  of  the 
liquor  was  "  about  the  premises,"  of  the 
seller,  yet  when  it  is  proved  that  the  drink- 
ing took  place  in  the  public  highway  in 
front  of  the  seller's  store  in  full  view  and 
within  the  distance  of  twenty  steps  of  it, 
the  court  may  instruct  the  jury  that  the 
liquor  was  drunk  ''about  the  premises." 
Brown  v.  State,  31  Ala.  353. 

ICO.  Where  it  is  shown  tliat  the  liquor 
sold  by  the  defendant  was  drunk  "in  an 
alleyway  five  or  six  feet  wide,  which  led 
from  the  main  street  between  his  house  and 
that  of  an  adjoining  proprietor;  that  the 
defendant  had  no  control  over  such  alley- 
way, and  could  not  see  drinking  there  from 
his  front  door;  and  that  it  did  not  lead  into 
his  back  yard,  nor  was  there  any  window 
opening  from  his  storehouse  into  it;  "  these 
facts  alone,  without  explanation,  do  not 
authorize  the  court  to  instruct  the  jury  that 
the  place  where  the  liquor  was  drunk,  was 
"  about  the  defendant's  premises."  Daly  v. 
State,  33  Ala.  431. 

101.  Where  it  was  proved  that  the  de- 
fendant sold  two  bottles  of  whisky  which 
the  purchaser  "  carried  out  into  the  public 
road  five  or  ten  steps  in  front  of  the  de- 
fendant's store,  and  that  the  liquor  was 
drunk  by  a  crowd  of  persons  between  the 


store  and  the  road  and  in  the  road,"  and 
the  court  charged  the  jury  that  "  it  was  the 
defendant's  duty  if  he  sold  the  whisky  to 
prevent  it  from  being  drunk  on  or  about  his 
premises,  and  that  if  the  liquor  was  drunk 
as  stated  they  should  find  the  defendant 
guilty,"  it  w^as  held  that  the  instruction 
was  correct,  although  it  was  also  proved 
that  at  the  time  of  the  sale  the  defendant 
told  the  purchaser  that  he  must  carry  the 
whisky  out  of  the  house  and  away  from  the 
premises,  and  that  the  purchaser  promised 
to  do  so.     Christian  v.  State,  40  Ala.  376. 

102.  Proof  of  distinct  violations  of  law. 
In  Vermont,  under  an  indictment  containing 
several  counts  for  violations  of  the  license 
law  by  the  sale  of  spirituous  liquors,  the 
prosecution  after  giving  evidence  tending 
to  prove  as  many  distinct  breaches  of  the 
law  by  the  defendant,  within  the  time 
covered  by  the  indictment,  as  there  are 
counts  in  the  indictment,  may  prove  other 
sales  within  the  same  period  of  time.  State 
V.  Smith,  22  Vt.  74 ;  State  v.  Crotean,  23 
lb.  14.  In  New  York,  it  has  been  held  that 
the  prosecution  can  only  be  permitted  to 
prove  as  many  distinct  offenses  as  there  are 
counts  in  the  indictment.  Hodgman  v. 
People,  4  Denio,  235. 

103.  In  Vermont,  under  one  complaint, 
information  or  indictment  for  disposing  of 
spirituous  liquor  contrary  to  law,  the  prose- 
cutor may  show  any  number  of  offenses, 
being  bound,  if  required,  to  give  the  de- 
fendant before  trial  a  specification  of  the 
nature  of  the  offenses  which  he  intends  to 
prove.  But  the  defendant  cannot  be  con- 
victed of  giving  away  liquor  under  a  count 
for  selling,  or  vice  versa.  State  v.  Freeman, 
27  Vt.  523. 

104.  Where  the  evidence  tends  to  prove 
a  sale  of  spirituous  liquor  by  the  defendant 
at  a  public  administrator's  sale  in  the  county, 
and  that  the  liquor  was  drunk  by  the  pur- 
chaser on  or  about  the  premises,  proof  of 
another  sale  of  liquor  by  the  defendant  to 
other  persons  at  the  same  public  sale  and 
under  similar  circumstances  is  competent 
evidence  for  the  prosecution  on  the  question 
of  guilty  knowledge  and  intent.  Pearce  v. 
State,  40  Ala.  720. 


SPIRITUOUS   LIQUORS,  SALE  OF. 


575 


Evidence. 


105.  Proof  that  defendant  is  common 
seller.  In  Massachusetts,  a  person  may  be 
convicted  of  being  a  common  seller  of  in- 
toxicating liquor  under  the  statute  (of  1852, 
ch.  322,  §  12)  on  proof  of  the  sale  of  tliree 
glasses  of  such  liquor  the  same  evening, 
each  of  "which  was  drunk  and  paid  for  when 
delivered.     Com.  v.  Eumrill,  1  Gray,  388. 

106.  Under  an  indictment  for  being  a 
common  seller  of  intoxicating  liquors,  it  is 
not  necessary  to  prove  that  the  offense  was 
committed  during  the  whole  time  charged, 
although  a  conviction  or  acquittal  would 
bar  a  prosecution  for  the  same  offense  during 
the  entire  time  alleged.  Com.  v.  Wood,  4 
Gray,  11;  Com.  v.  Putnam,  lb.  16. 

107.  \Yhere  an  indictment  for  being  a 
common  seller  of  intoxicating  liquor  limits 
the  time  within  wliich  the  acts  were  done  to 
a  particular  day,  evidence  is  not  admissible 
of  sales  before  or  after  that  day.  Com.  v. 
Elwell,  1  Gray,  463.  Therefore,  on  the  trial 
of  an  indictment  alleging  that  the  defendant 
presumed  to  be  and  was  a  common  seller  of 
wine,  brandy,  &c.,  on  a  day  named  and  on 
divers  subsequent  days,  evidence  of  his  pre- 
suming to  be  such  seller  on  a  day  prior  to 
that  which  was  specified  was  held  not  ad- 
missible.    Com.  V,  Briggs,  11  Mete.  573. 

108.  The  defendant  being  indicted  as  a 
common  seller  of  spirituous  and  intoxicating 
liquors,  was  furnished  before  trial  by  order 
of  court  with  a  list  of  the  names  of  the  per- 
sons to  whom  the  alleged  sales  were  made. 
Held  that  evidence  of  sales  not  mentioned 
in  the  list  was  inadmissible.  Com.  v.  Giles, 
1  Gray,  466. 

109.  Where  on  the  trial  of  an  indictment 
for  being  a  common  seller  of  intoxicating 
liquor,  evidence  was  admitted  against  the 
defendant's  objection  that  he  kept  an  inn, 
and  had  thereon  a  tavern  keeper's  sign,  it 
was  held  ground  for  reversal.  Com.  v.  Mad- 
den, 1  Gray,  486. 

110.  In  Maine,  no  particular  number  of 
sales  is  necessary  to  be  proved  in  order  to 
convict  a  person  as  a  common  seller  of 
intoxicating  liquors  under  the  statute  of 
1858,  but  the  jury  must  be  satisfied  from 
the  evidence  that  selling  intoxicating  liquors 
was  the  defendant's  common  and  ordinarv 


business.     State    v.    O'Conner,    49    Maine, 
594. 

111.  Under  an  indictment  charging  the 
defendants  with  being  common  sellers  of 
spirituous  liquors,  evidence  of  sales  of  ale, 
porter  and  cider  is  not  admissible.  State  v. 
Adams,  51  New  Hamp.  568. 

112.  Sale  by  partners.  On  the  trial  of 
an  indictment  which  alleged  that  tlie  de- 
fendants, being  joint  grocers,  sold  spiritu- 
ous liquors  without  license,  it  was  held 
competent  in  order  to  prove  the  partnership 
to  show  that  one  of  them  was  often  in  the 
store  which,  the  defendants  had  formerly- 
occupied  as  partners;  that  he  was  accus- 
tomed, as  before  the  supposed  dissolution, 
to  buy,  sell  and  barter  there;  that  he  ex- 
amined the  books  aud  made  charges  in 
them;  that  he  went  to  Boston  and  made 
purchases,  and  that  the  sign  of  the  old  firm 
remained  upon  the  building.  State  v.  Wig- 
gin,  20  New  Hamp.  449. 

113.  Sale  by  married  woman.  On  the 
trial  of  an  indictment  against  a  married 
woman  for  the  unlawful  sale  of  intoxicating 
liquor,  the  following  instruction  was  held 
proper:  That  if  the  defendant,  in  the  ab- 
sence of  her  husband,  sold  intoxicating 
liquor  under  such  circumstances  as  proved 
her  to  be  a  common  seller,  and  if  there  was 
no  evidence  that  she  sold  it  by  his  command^ 
or  that  in  selling  it  she  was  under  any  coer- 
cion or  influence  of  his,  she  should  be  found 
guilty.  Com.  v.  Murphy,  2  Gray,  510.  But 
if  the  husband  was  near  enough  for  the  wife 
to  act  under  his  influence  and  control, 
though  not  in  the  same  room,  she  would 
not  be  liable.     Com.  v.  Burk,  11  lb.  437. 

114.  To  convict  a  husband  for  the  unlaw- 
ful sale  by  his  wife  of  spirituous  liquor  in 
his  store  in  his  absence,  the  jury  must  be 
satisfied  beyond  a  reasonable  doubt  that  her 
illegal  act  was  done  by  his  authority.  Mere 
proof  that  she  was  his  clerk  or  agent  is  not 
sufficient.     Seibert  v.  State,  40  Ala.  60. 

115.  Sale  to  common  drunkard.  On  a 
trial  for  selling  liquor  to  a  person  alleged  to 
be  a  common  drunkard,  evidence  is  admis- 
sible to  show  that  he  was  habitually  intoxi- 
cated for  several  weeks  after  the  sale. 
Barnes  v.  State,  20  Conn.  232 ;  and  also  that 


576 


SPIRITUOUS  LIQUORS,  SALE  OF. 


Evidence. 


the  defendant  had  for  a  long  time  before  the 
sale  charged  been  accustomed  to  sell  liquor 
to  such  person  to  be  taken  by  him  to  excess. 
Wickwire  v.  State,  19  lb.  477;  also  that  such 
person  had  during  the  preceding  year  bought 
liquor  at  other  places  than  the  defendant's 
and  become  drunk  thereon.  Smith  v.  State, 
lb.  493. 

116.  In  Alabama,  it  was  held  on  a  trial  for 
retailing  liquor  without  a  license  (Code, 
§  1059),  that  evidence  that  the  intemperate 
habits  of  the  person  to  whom  the  liquor  was 
sold,  were  generally  known  in  the  commu- 
nity, was  irrelevant.  Stanley  v.  State,  26 
Ala.  26.  But,  in  a  subsequent  case,  it  was 
held  that  the  fact  that  the  intemperate 
habits  of  the  person  to  whom  the  liquor  was 
sold  were  notorious  where  the  defendant 
lived,  was  proper  for  the  consideration  of 
the  jury,  in  determining  whether  his  habits 
were  known  to  the  defendant.  Stallings  v. 
State,  33  Ala.  425. 

117.  Whether  the  defendant  knew  of  the 
intemperate  habits  of  the  person  to  whom 
he  sold  the  liquor,  should  be  left  to  the  de- 
cision of  the  jury  upon  the  evidence.  A 
charge  which  assumes  that  such  knowledge 
was  brought  home  to  him,  is  erroneous. 
Elam  V.  State,  35  Ala.  53. 

118.  In  Connecticut,  it  has  been  held  that 
to  sustain  a  prosecution  for  selling  liquor 
to  a  common  drunkard,  the  State  need  not 
prove  that  the  defendant  knew  that  the  per- 
son to  whom  the  liquor  was  sold  was  a  com- 
mon drunkard.  Barnes  v.  State,  19  Conn. 
398. 

119.  Proof  of  second  conviction.  In 
Massachusetts,  to  render  the  defendant 
liable  to  the  aggravated  punishment  pre- 
scribed for  a  second  conviction  by  the  stat- 
ute (of  1852,  ch.  322,  §  7),  it  must  be  proved 
that  the  sale  charged  was  made  subsequently 
to  the  previous  conviction.  Com.  v.  Daley, 
4  Gray,  209. 

120.  Burden  of  proof  on  defendant.  On 
a  charge  of  retailing  liquor  without  a  license, 
the  burden  is  on  the  defendant  to  show  a 
license.  Haskill  v.  Com.  3  B.  Mon.  342; 
Schmidt  v.  State,  14  Mo.  137 ;  State  v.  Wood- 
ward, 34  Me.  293 ;  State  v,  Morrison,  3  Dev. 
290;    Genig  v.  State,  1  McCord,  573;    State 


V.  Crowell,  25   Me.  171 ;    State  v.  Foster,  3 
Foster,  348;  Shearer  v.  State,  7  Blackf.  99. 

121.  In  New  York,  where  a  person  is 
charged  with  selling  liquor  by  retail  with- 
out license,  he  must  show  not  only  that  it 
was  bought  under  the  direction  and  pre- 
scription of  a  licensed  physician,  but  also 
that  it  was  prescribed  for  medicinal  pur- 
poses.    People  v.  Safford,  5  Denio,  112. 

122.  No  one  but  the  importer  of  intoxicat- 
ing liquors  has  the  right  to  sell,  except  as 
allowed  by  the  laws  of  the  State;  and  he 
can  sell  only  in  the  original  packages.  The 
power  of  the  State  is  plenary  to  regulate  or 
prohibit  all  sales  except  such  as  are  made  by 
the  importer  himself;  and  the  burden  of 
proof  is  on  him  to  show  that  he  was  the 
importer.     State  v.  Robinson,  49  Me.  285. 

123.  Proof  in  justification.  On  a  ijrose- 
cution  for  selling  liquor  to  a  minor,  it  is 
competent  for  the  defendant  to  prove  that 
the  person  was  a  stranger  to  him,  that  from 
his  appearance  any  one  of  common  observa- 
tion would  believe  him  to  be  an  adult,  that 
he  represented  that  he  was  such,  and  that 
he  was  so  treated  by  his  parents  and  the 
community.     State  v.  Kalb,  14  Ind.  403. 

124.  Where,  on  a  prosecution  for  selling 
spirituous  liquor  to  a  person  in  the  habit  of 
getting  drunk,  it  was  proved  that  he  was 
a  stranger  to  the  defendant ;  that  the  latter 
had  no  knowledge  of  his  habits;  that  he 
was  sober  at  the  time,  and  had  no  appear- 
ance of  one  accustomed  to  intoxication ;  it 
was  held  that  the  defendant  was  entitled  to 
acquittal.     Deveny  v.  State,  47  Ind.  208. 

125.  Where  a  license  has  been  granted  to 
a  man  to  keep  a  tavern,  and  he  has  removed 
from  it,  another  man  who  is  indicted  for  re- 
tailing liquor  in  the  house  may  show,  in  de- 
fense, that  he  did  it  as  the  agent  or  partner, 
and  under  the  license  of  him  to  whom  the 
license  was  granted.  Barnes  v.  Com.  2 
Dana,  388. 

126.  Irrelevant  testimony.  The  excep- 
tion taken  in  the  first  section  of  the  act  of 
April  9,  1855,  for  the  prevention  of  intem- 
perance, pauperism  and  crime,  as  to  the  right 
to  sell  given  "by  any  law  or  treaty  of  the 
United  States,"  is  not  applicable  to  liquor 
held  by  one  v/ho  has  bought  it  from  the  iui- 


SPIRITUOUS  LIQUORS,  SALE  OF. 


577 


Evidence. 


Verdict. 


Seizure  and  Condemnation  of  Liquors. 


porter  in  the  origiual  packages,  and  who  re- 
tails it  from  such  packages ;  and  evidence 
in  behalf  of  the  defendant  on  the  trial  of  an 
indictment  under  the  act,  that  it  was  so 
sold,  is  immaterial.  Wynehamer  v.  People, 
20  Barb.  5G7;  s.  c.  13  N.  Y.  378. 

127.  On  the  trial  ©f  a  complaint  for  ille- 
gally transporting  intoxicating  liquors  in- 
tended for  sale,  evidence  is  not  admissible 
to  show  the  result  of  a  prosecution  against 
the  party  for  keeping  with  intent  to  sell  in 
A'iolation  of  law,  the  liquor  which  the  de- 
fendant is  accused  of  having  transported  t© 
him.     Com.  v.  Waters,  11  Gray,  81. 

128.  On  the  trial  of  an  indictment  for  sell- 
ing and  furnishing  intoxicating  liquors, 
several  witnesses  testified  that  they  had 
drank  liquor  in  rooms  in  the  defendant's 
house,  on  public  occasions,  when  asked  to 
do  so  by  parties  occupying  such  rooms,  but 
did  not  know  where  the  liquor  came  from. 
Held,  that  evidence  on  the  part  of  the  de- 
fendant, that  travelers  were  in  the  habit  of 
carrying  liquor  with  them,  was  irrelevant. 
State  V.  Barron,  37  Vt.  57. 

129.  Under  an  indictment  for  selling 
spirituous  liquor  without  a  license,  the  ac- 
cused cannot  be  convicted  on  proof  that  hav- 
ing a  tavern-keeper's  license,  he  sold  a  glass 
of  liquor  on  Sunday,  which  was  drank  on 
the  premises.  People  v.  Brown,  6  Parker, 
666. 

130.  Although  a  license  from  the  United 
States  authorities  is  not  a  justification  for  a 
violation  of  a  State  law  which  prohibits  the 
sale  of  spirituous  liquor,  yet  such  a  license 
does  not  raise  a  presumption  of  guilt.  State 
V.  Stutz,  20  Iowa,  488. 

5.  Verdict. 

131.  In  case  of  several  acts  of  sale.   In 

Vermont,  on  the  trial  of  an  information  for 
selling  spirituous  liquor  without  a  license, 
it  was  held  not  improper  for  the  court  to 
instruct  the  jury  "to  return  a  verdict  of 
guilty  for  each  act  of  selling."  State  v. 
Paddock,  24  Vt.  312. 

132.  In  Massachusetts,  three  several  sales 
of  spirituous  liquor  being  charged  in  the  in- 
dictment and  proved,  there  may  be  convic- 
tions thereon,  notwithstanding  the  defend- 

37 


ant  might  have  been  charged  and  convicted 
as  a  common  seller.  Com.  v.  Tuttle,  12 
Gush.  505. 

133.  Discharge  of  defendant.  Where 
on  the  trial  of  an  indictment  for  selling 
spirituous  liquors  without  a  license  the  de- 
fendant has  been  convicted  and  sentenced 
to  pay  a  fine  and  the  costs  of  prosecution, 
the  court  cannot  discharge  him  and  order 
execution  to  issue  against  his  jjroperty. 
State  v.  Robinson,  17  New  Hamp.  263. 

6.  Seizure  and  coNDEirNATiON  of  liquors. 

134.  Course  of  procedure.      In   Maine, 

(L.  of  1858,  ch.  33,  §  12),  where  an  officer 
seizes  intoxicating  liquors  upon  a  warrant 
issued  therefor,  he  is  required  also  to  arrest 
the  person  in  whose  custody  they  are  alleged 
in  the  complaint  to  be,  and  to  have  both  the 
person  and  the  liquors  before  the  magisti'ate 
who  issued  the  warrant.  The  person  is  put 
on  trial  for  having  had  such  liquors  in  his 
possession  with  intent  to  sell  the  same  in  the 
State  in  violation  of  law ;  and  the  liquors 
are  libeled.  The  acquittal  of  the  person 
does  not  entitle  him  to  a  restoration  of  the 
liquors;  nor  does  a  condemnation  of  the  liq- 
uors necessarily  result  in  a  conviction  of  the 
person.  The  hearing  may  be  at  the  same 
time,  but  there  must  be  a  separate  decree  and 
judgment ;  and  cither  may  be  appealed  with- 
out the  other.  State  v.  Miller,  48  Maine, 
576.  In  a  prosecution  against  the  person,  it 
is  no  defense  that  the  seizure  was  illegal. 
State  V.  McCann,  61  Maine,  116. 

135.  Subject  of  inquiry.  On  the  trial  of 
a  libel  against  intoxicating  liquors,  the 
court  being  asked  to  charge  the  jury  that 
they  should  find  "  the  item  of  ten  barrels  of 
rum  were  not  rum,  but  a  difi"erent  article, 
the  libel  could  not  be  maintained  for  that  if 
item,"  instructed  them  to  confine  their  in- 
quiries to  the  liquors  which  were  specified  in 
the  claim  and  libel ;  that  if  liquors  were 
seized  and  not  libeled,  the  owner  must  seek 
his  remedy  in  another  suit ;  and  if  liquors 
were  libeled  and  not  claimed,  the  law  would 
provide  for  their  disposal.  Held  that  the 
claimant  had  no  ground  of  complaint. 
State  V.  Smith,  54  Maine,  33. 


578  SPIEITUOUS   LIQUOES,  SALE   OF.— STATUTES. 


Seizure  and  Condemnation  of  Liquors. 


How  Proved. 


136.  Proof  of  possession  and  destruc- 
tion of  liquor.  In  Maine,  uudor  the  statute 
(L.  of  I808,  cb.  33,  §  14),  the  fact  that  the 
liquors  described  in  the  complaint  were 
found  in  tlie  defendant's  possession  in  the 
place  searched,  must  be  proved  before  the 
magistrate  by  evidence  under  oath,  and  not 
by  the  return  of  the  officer.  Under  section 
20,  of  the  same  statute,  authorizing  the  ar- 
rest of  the  defendant,  if  the  liquors  be  de- 
stroyed by  him,  and  requiring  the  officer  to 
make  return  upon  his  warrant  that  he  was 
prevented  from  seizing  the  liquors  by  their 
destruction,  and  to  state  in  his  return  the 
quantity  destroyed ;  the  fact  of  such  destruc- 
tion must  be  proved  by  testimeuy  under 
oath;  but  the  return  need  not  be  made  pre- 
vious to  the  arrest.  State  v.  Stevens,  47 
Maine,  357. 

137.  Proof  of  ownership  of  liquor. 
Where  on  the  trial  of  a  libel  for  the  con- 
demnation of  intoxicating  liquors,  the  judge 
told  the  jury  that  it  would  be  unnecessary 
to  inquire  into  the  ownership  of  the  liquors 
if  intended  for  sale  within  the  State  in  vio- 
lation of  law,  it  was  held  error;  such  inquiry 
being  material  on  the  question  of  illegal  in- 
tent. State  V.  Intoxicating  Liquors,  63 
Maine,  12L 

138.  Warehouseman's  lien.  In  Maine, 
the  lien  of  a  warehouseman  does  not  affect 
the  liability  of  liquors  to  forfeiture.  If  the 
liquors  be  designed  by  the  owners  when  they 
shall  reach  their  destination  for  unlawful 
sale  in  the  State,  they  will  be  liable  to  for- 
feiture, though  the  warehouseman  had  no 
unlawful  intent.  State  v.  Intoxicating  Liq- 
uors, .50  Maine,  506. 

139.  Officer's  return.  Where  the  officer 
did  not  return  that  he  found  any  intoxicat- 
ing liquors  on  the  premises  of  the  defend- 
ant, but  that  he  found  a  "  demijohn  contain- 
ing one  gallon  more  or  less,  of  what  I  called 
St.  Croix  rum,"  it  was  held  that  as  the  de- 
fendant by  destroying  the  liquors  render- 
ed it  impossible  for  the  officer  to  deter- 
mine with  certainty  their  quality,  he  could 
not  object  to  the  return  as  not  suffi- 
ciently certain.  State  v.  Stevens,  47  Maine, 
357. 

See  License. 


Statutes, 

1.  How  proved.  The  statutes  of  another 
State  must  be  proved  by  an  authenticated 
copy.  People  v.  Lambert,  5  Mich.  349. 
Statute  books  purporting  to  be  published 
under  the  authority  of  another  State,  are 
competent  proof  of  its  statute  law.  State 
V.  Abbey,  29  Vt.  60. 

2.  Unconstitutionality  of.  An  act  which 
requires  a  party  charged  with  crime  to  be 
tried  by  a  court  without  a  jury,  is  unconsti- 
tutional. Wynehamer  against  People,  13  N. 
Y.  378. 

3.  The  act  of  New  York  of  1855,  p.  340, 
for  the  prevention  of  intemperance,  pauper- 
ism and  crime,  which  substantially  destroys 
property  in  intoxicating  liquor  owned  and 
possessed  in  the  State  when  the  act  took 
effect,  is  unconstitutional.  Wynehamer 
against  People,  supra. 

4.  The  following  portions  of  the  act  of 
New  York  of  April  9,  1855,  "  for  the  pre- 
vention of  intemperance,  pauperism  and 
crime"  declared  unconstitutional :  So  much 
of  section  1  as  provides  that  intoxicating 
liquor  shall  not  be  sold  or  kept  for  sale,  or 
with  intent  to  be  sold,  except  by  the  persons 
and  for  the  sijecial  uses  mentioned  in  the 
act ;  so  much  of  sections  6,  7,  10  and  12  as 
provide  for  its  seizure,  for  forfeiture  and  de- 
struction ;  so  much  of  the  16th  section  as  de- 
clares that  no  jDerson  shall  maintain  an  ac- 
tion to  recover  the  value  of  any  liquor  sold 
or  kept  by  him  which  shall  be  purchased, 
taken,  detained,  or  injured,  unless  he  prove 
that  the  same  was  sold  according  to  the  pro- 
visions of  the  act,  or  was  lawfully  kept  and 
owned  by  him  ;  so  much  of  section  17  as  de- 
clares that  upon  the  trial  of  any  complaint 
under  the  act,  proof  of  deliveiy  shall  be 
proof  of  sale,  and  i:)roof  of  sale  shall  be 
sufficient  to  sustain  an  averment  of  unlawful 
sale ;  and  so  much  of  section  25  as  declares 
that  intoxicating  liquor  kept  in  violation  of 
any  of  tlie  provisions  of  the  act,  shall  be 
deemed  to  be  a  public  nuisance.  People  v. 
Toynbee,  20  Barb.  168. 

5.  A  statute  (Laws  of  Mich,  of  1873),  pro- 
vided, in  substance,  that,  when  the  defense 
of  insanity  was  set  up  in  certain  cases,  the 


STATUTES. 


579 


When  Deemed  Constitutional. 


When  Deemed  Ex  Post  Facto. 


jury  should  find  specially  whether  the  pris- 
oner was  insane  when  the  alleged  crime  was 
committed,  and  if  acquitted  on  that  ground, 
the  verdict  should  so  declare.  In  such  case, 
the  court  was  to  sentence  him  to  confine- 
ment in  the  insane  asylum  in  the  State  prison 
until  discharged.  This  could  only  be  done 
when  the  prison  inspectors  summoned  the 
circuit  judge  of  the  circuit  from  which  he 
was  sent,  and  the  medical  superintendent  of 
the  insane  asylum,  who  were  thereupon  to 
examine  into  his  condition,  and  if  they 
certified  that  he  was  not  insane,  the  governor 
was  to  discharge  him.  Held  unconstitu- 
tional.    Underwood  v.  People,  32  Mich.  1. 

6.  A  statute  prohibiting  the  intermarriage 
of  white  persons  and  negroes  who  are 
citizens,  and  forbidding  the  performance  of 
the  marriage  ceremony,  is  unconstitutional. 
Burns  v.  State,  48  Ala.  195. 

7.  "When  deemed  constitutional.  It  is 
not  an  infringement  of  the  provision  of  the 
Constitution  that  "  trial  by  jury  in  all  cases 
in  which  it  has  been  heretofore  used,  shall 
remain  inviolate  forever,"  for  the  Legisla- 
ture to  confer  upon  Courts  of  Special  Ses- 
sions power  to  try  oflenses  which  are  not 
"capital  or  otherwise  infamous  crimes." 
Plato  V.  People,  3  Parker,  586. 

8.  A  statute  giving  to  a  Court  of  Special 
Sessions  exclusive  power  to  hear,  try  and  de- 
termine all  cases  of  petit  larceny  not  charged 
as  a  second  ofi'ense  arising  within  the  county, 
is  constitutional ;  and  the  court  having  ex- 
clusive jurisdiction  of  the  ofi'ense  is  bound 
to  try  it,  and  has  no  right  to  take  bail. 
Peojile  V.  Rawson,  61  Barb.  619. 

9.  The  New  York  statute,  that  "  on  any 
trial  for  anj^  ofi'ense  iDunishable  with  death 
or  imprisonment  in  the  State  prison  for  the 
term  of  ten  years  or  for  a  longer  term,  the 
people  shall  be  entitled  peremptorily  to 
challenge  five  of  the  persons  drawn  as  jurors 
for  such  trial,  and  no  more  "  (Laws  of  1858, 
ch.  333,  §  1),  is  constitutional.  Walter  v. 
People,  33  N.  Y.  147;  affi'g  G  Parker,  15. 

10.  A  statute  prohibiting  citizens  of  other 
States  from  taking  oysters  in  the  navigable 
waters  of  Rhode  Island,  is  not  repugnant  to 
the  constitutions  of  the  State  and  United 
States,  or  the  charter  of  Charles  3d  to  the 


colony  of  Rhode  Island.     State  v.  Medbury, 
3  R.  L  138. 

11.  A  statute  (to  be  in  force  only  in  those 
towns  in  which  it  is  adopted  in  town  meet- 
ing), which  provides  that  bowling  alleys 
within  twenty-five  rods  of  a  dwelling-house 
shall  be  deemed  nuisances,  is  constitutional. 
State  V.  Noyes,  30  New  Hamp.  379. 

12.  A  statute  which  forbids  bowling  al- 
leys to  be  used  later  than  six  o'clock  Satur- 
day afternoon,  is  constitutional.  Com.  v. 
Colton,  8  Gray,  488. 

13.  The  denial  to  females  of  the  right  to 
vote  by  the  Constitution  and  laws  of  New 
York  is  not  a  violation  of  the  provision  of 
the  14th  Amendment  of  the  Constitution  of 
the  United  States,  that  "  no  State  shall 
make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of 
the  United  States."  U.  S.  v.  Anthony,  11 
Blatch.  200. 

14.  "When  deemed  ex  post  facto.  A  law 
is  ex  post  facto  when  it  punishes  the  ofi'ense 
in  a  different  manner,  or  by  a  difl'erent  kind 
of  punishment  than  it  was  punishable  with 
when  con^mitted.  Shepherd  v.  People,  35 
N.  Y.  406;  Hartung  v.  People,  36  N.Y.  167; 
s.  c.  28  lb.  400. 

15.  Judgment  was  reversed  after  convic- 
tion of  murder  and  sentence,  because  the 
Legislature  had  subsequently  enacted  a  stat- 
ute which  forbade  the  execution  of  such 
sentence,  and  had  required  that  such  con- 
victs should  be  subjected  to  imprisonment 
at  hard  labor  for  one  year,  and  thereafter  be 
executed  if  the  governor  should  issue  his 
warrant  for  that  purpose;  the  statute  being 
deemed  ex  j)ost  facto^  because  it  attempted 
to  change  the  punishment  which  the  law 
had  attached  to  the  ofi'ense  when  it  was 
committed.     Hartung  v.  People,  supra. 

16.  Before  the  passage  of  the  act  of  New 
York  of  April  14th,  1860,  entitled  "An  act 
in  relation  to  capital  punishment,  and  to 
provide  for  the  more  certain  punishment  of 
the  crime  of  murder,"  J.  K.  murdered  his 
wife  by  poisoning  her.  After  that  act  went 
into  efi'ect  he  was  tried,  convicted  and  sen- 
tenced to  be  executed  j)ursuant  to  its  pro- 
visions. On  writ  of  error,  the  only  question 
was  as  to  tlie  illegality  of  the  judgment. 


580 


STATUTES. 


When  not  Regarded  as  Ex  Post  Facto. 


Effect  of  Repeal  of  Statute, 


Held  that,  as  the  act  was  ex  post  facto  so  far 
as  the  oflense  in  question  was  concerned, 
the  prisoner  must  be  discharged.  Kuckler 
V.  People,  5  Parker,  212. 

17.  A  city  ordinance  provided  that  no 
awning  should  be  placed  or  continued  over 
any  sidewalk,  unless  the  same  should  be 
constructed  of  cloth  or  canvas,  and  sup- 
ported by  iron  rods.  Ueld  the  continuance 
of  a  wooden  awning,  erected  previous  to  the 
passage  of  the  ordinance,  was  not  a  violation 
of  it.     State  v.  Cleaveland,  3  R.  I.  117. 

18.  When  not  regarded  as  ex  post  facto. 
Where,  after  the  commission  of  an  offense, 
a  statute  is  passed  lessening  the  punishment, 
it  is  not  open  to  the  objection  of  being  an  ex 
2)ost  facto  law.  State  v.  Kent,  65  N.  C. 
311. 

19.  A  statute  prescribing  an  alternative 
punishment  for  an  offense,  in  mitigation  of 
the  punishment  prescribed  by  a  fomier  law, 
is  not  ex  2>ost  facto  as  to  offenses  already 
committed.     Turner  v.  State,  40  Ala.  21. 

20.  It  is  competent  for  the  Legislature,  by 
a  general  law,  to  remit  any  seijarable  jDor- 
tion  of  the  prescribed  punishment.  And 
any  change  which  should  be  referable  to 
prison  discipline,  or  penal  administration, 
as  its  primary  object,  might  also  be  made  to 
take  effect  upon  past  as  well  as  future  of- 
fenses. Hartung  v.  People,  26  N.  Y.  167; 
s.  0.  28  lb.  400. 

21.  "When  doctrine  in  relation  to  ex  post 
facto  law  not  applicable.  The  doctrine 
that  no  ex  post  facto  law  is  valid,  has  no  ap- 
plication to  the  rules  of  evidence  or  the  de- 
tails of  the  trial.  These  may  be  changed  as 
to  prior,  equally  with  subsequent  offenses. 
Stokes  V.  People,  53  K  Y.  164. 

22.  Effect  of  repeal  of  statute.  The 
prisoner  cannot  be  convicted  after  the  re- 
peal of  the  law,  unless  the  repealing  act 
contains  a  provision  for  that  purpose.  Tay- 
lor V.  State,  7  Blackf.  93 ;  Mayers  v.  State,  2 
Eng.  68. 

23.  A  party  cannot  be  convicted  after  the 
law  under  which  he  may  be  prosecuted  has 
been  repealed,  although  the  offense  may 
have  been  committed  before  the  repeal;  and 
this  principle  is  applicable  where  the  law  is 
repealed  or  expires  pending  an  appeal  on  a 


writ  of  error  from  a  judgment  of  an  inferior 
court.     Keller  v.  State,  12  Md.  322. 

24.  Where  a  statute  creating  an  offense 
has  been  repealed,  or  has  expired  previous 
to  the  finding  of  an  indictment,  a  prosecu- 
tion cannot  be  sustained ;  and  if  after  con- 
viction there  can  be  no  sentence.  Com.  v. 
Pennsylvania  Canal  Co.  66  Penn.  St.  41 ; 
Wall  V.  State,  18  Texas,  682  ;  Greer  v.  State, 
22  lb.  588. 

25.  When  the  repeal  of  a  statute  is  in  ex- 
press terms,  and  without  a  saving  clause  as 
to  offenses  committed  in  violation  of  the 
repealed  statute,  an  indictment  previously 
found  under  it  will  be  quashed  on  motion. 
U.  S.  V.  Finlay,  1  Abb.  364;  GrifBnv.  State, 
39  Ala.  541. 

26.  Where  the  act  which  imposes  a  pen- 
alty is  repealed  after  conviction,  the  judg- 
ment is  arrested;  and  when  it  is  repealed 
subsequent  to  judgment,  the  judgment  may 
be  reversed  on  writ  of  error.  Hartung  v. 
People,  22  N.  Y.  95  ;  rev'g  4  Parker,  319. 

27.  The  repeal  of  a  penal  statute  oper- 
ates as  a  pardon  of  all  crimes  committed 
before  that  time,  except  when  the  repealing 
statute  contains  a  provision  expressly  saving 
the  right  to  prosecute.  Wharton  v.  State,  5 
Cold.  Tenn.  1. 

28.  If  an  offense  is  committed  against  a 
statute,  and  afterward  and  before  sentence 
the  statute  is  repealed,  any  proceedings  un- 
der it  which  were  not  closed  are  arrested  the 
same  as  if  the  statute  had  never  existed. 
State  V.  Daley,  29  Conn,  272;  State  v. 
Grady,  34  Conn.  118, 

29.  On  the  trial  of  an  indictment  for 
manslaughter,  it  appeared  that  at  the  time  of 
the  commission  of  the  offense  the  following 
statute  was  in  force :  "Eveiy  person  who  shall 
commit  manslaughter  shall  forfeit  and  pay  a 
fine  .not  exceeding  one  thousand  dollars,  and 
suffer  imprisonment  in  the  State  prison  for  a 
term  not  less  than  two  nor  more  than  ten 
years."  Subsequently  the  following  statute 
rei^ealing  the  fonner  one,  was  jjassed: 
"  Every  person  who  shall  commit  man- 
slaughter and  be  duly  convicted  thereof, 
shall  forfeit  and  pay  a  fine  not  exceeding 
one  thousand  dollars,  and  suffer  imprison- 
ment in  the  State  prison  or  county  jail  for  a 


STATUTES. 


581 


Revival  of  Statute. 


Creating  and  Regulating  Courts. 


term  not  exceeding  ten  years."  The  latter 
act  took  effect  previous  to  the  trial  and  con- 
viction of  the  prisoner.  Held  on  motion  in 
arrest  of  judgment  that  the  prisoner  could 
not  be  convicted  or  sentenced  under  either 
of  the  statutes.   State  v.  Daley,  29  Conn.  272. 

30.  The  statute  which  existed  at  the  time 
a  theft  was  committed  provided  for  the  pun- 
ishment by  imprisonment  in  a  common  jail, 
in  all  cases  of  larceny  where  the  value  of  the 
jiroperty  did  not  exceed  the  sum  of  $50,  and 
imprisonment  in  the  State  prison  not  ex- 
ceeding five  years,  where  the  value  of  the 
property  stolen  exceeded  the  sum  of  $50. 
Afterward  a  statute  was  enacted  repealing 
so  much  of  the  former  statute  as  was  incon- 
sistent with  it,  and  providing  that  if  the 
value  of  the  property  stolen  should  exceed 
the  sum  of  $2,000,  the  punishment  should 
be  imprisonment  in  the  State  j)rison  for  a 
term  not  exceeding  twenty  years.  Held  that 
so  much  of  the  prior  statute  as  related  to  the 
stealing  of  less  than  $2,000,  was  not  repealed 
by  the  subsequent  statute.  State  v.  Grady, 
34  Conn.  118. 

31.  Revival  of  statute.  The  repeal  of  a 
repealing  statute  revives  the  original  statute, 
although  the  repeal  was  only  by  implica- 
tion.    People  V.  Davis,  61  Barb.  456. 

32.  Operation  of  statute  of  limitations. 
A  statute  of  limitations  does  not  operate  as 
a  bar  to  the  prosecution  ©f  offenses  commit- 
ted before  it  went  into  effect.  Martin  v. 
State,  24  Texas,  61.  (Wheeler,  Ch.  J.,  dis- 
senting, held  that  such  a  statute  ought  to  be 
construed  to  relate  to  past  as  well  as  to  fut- 
ure offenses,  when  its  operation  was  bene- 
ficial to  the  accused,  unless  the  Legislature 
had  plainly  declared  that  it  was  not  to  re- 
ceive such  a  construction.) 

33.  Statute  imposing  no  penalty.  Where 
the  defendant  was  convicted  under  a  statute 
which  prescribed  no  penalty,  on  motion  in 
arrest  of  judgment,  the  court  discharged 
him.     State  v.  Ashley,  Dudley,  Ga.  188. 

34.  In  relation  to  freedmen.  In  Ala- 
bama, since  the  abolition  of  slavery,  the 
general  criminal  statutes  of  the  State  are 
applicable  to  offenses  committed  by  freed- 
men, although  they  were  not  so  applicable 
at   the  time  they  were   enacted.     Eliza  v. 


State,  39  Ala.  693  ;  Aaron  v.  State,  lb.  684  ; 
Witherby  v.  State,  lb.  702 ;  Ferdinand  v. 
State,  lb.  706  ;  Miller  v.  State,  40  Ala.  54  ; 
Stephen  v.  State,  lb.  67 ;  Tempe  v.  State, 
lb.  350. 

35.  Creating  and  regulating  courts.  A 
court  derives  its  authority  to  take  cognizance 
of  ci'iminal  proceedings  not  from  special 
statutes,  but  from  the  act  constituting  it  a 
court.     State  v.  Wilbor,  1  R.  I.  199. 

36.  That  which  concerns  the  administra- 
tion of  public  justice  (like  legislation  re- 
specting a  court,  though  it  be  of  limited 
jurisdiction,  and  though  its  sittings  be  con- 
fined to  a  certain  specified  locality),  is  a 
pul)Iic  law — a  law  which  affects,  and  in 
which  the  public  generally  are  interested. 
Within  this  rule,  a  statute  creating  or  regu- 
lating the  Court  of  Special  Sessions  of  the 
city  and  county  of  New  York,  as  it  affects 
the  public,  is  not  local  within  the  meaning 
of  the  Constitution.  People  v.  Davis,  61 
Barb.  456. 

37.  State  laws  do  not  control  in  criminal 
proceedings  in  the  United  States  courts, 
either  in  the  mode  or  form  of  charging  the 
offense,  in  the  rules  of  evidence,  or  in  the 
manner  of  conducting  the  trial;  but  the 
proceedings  are  according  to  the  course  of 
the  common  law  except  so  far  as  has  been 
otherwise  provided  by  act  of  Congress  or 
by  constitutional  provision.  U.  S.  v.  Shep- 
ard,  1  Abb.  431. 

38.  City  ordinances.  Where  a  city  charter 
declares  that  the  violation  of  the  ordinances 
of  the  city  which  may  be  made  on  certain 
subjects  within  certain  limitations  shall  be  a 
misdemeanor,  and  may  be  prosecuted  as 
such,  and  such  ordinances  are  passed,  they 
have  the  authority  of  a  statute.  State  v. 
Tryon,  39  Conn.  183. 

39.  Effect  of  statute  imposing  penalty. 
Where  an  act  wliich  is  not  criminal  at  com- 
mon law  is  prohibited  by  statute,  and  a  penal- 
ty is  imposed  in  the  same  statute  declaring 
such  prohibition,  the  act  is  not  indictable. 
But  where  the  act  was  criminal  at  common 
law  or  already  i^rohibited  by  a  former  statute, 
the  imposition  of  a  civil  penalty  does  not 
take  away  the  power  to  punish  by  indict- 
ment; so,  where  the  statute  itself  contains 


582 


STATUTES. 


Legalizing  Obstruction  of  Highway. 


When  to  be  Liberally  Construed. 


any  provisions  slioM'ing  that  the  Legislature 
did  not  intend  that  the  ciAdl  penalty  should 
constitute  the  only  punishment,  the  remedy 
by  indictment  is  not  taken  away.  Behan  y. 
People,  17  N.  Y.  516  ;  People  v.  Shea,  3 
Parker,  562. 

40.  When  a  statute  revises  the  whole 
subject  of  an  offense,  making  that  a  qualified 
offense  which  was  before  absolute,  or  chang- 
ing the  time  or  mode  of  prosecution,  or  the 
degree  of  punishment,  it  may  be  a  repeal  of 
the  common  law.  A  statute  is  not  of  this 
character  which  prescribes  a  penalty  for 
using  without  license  a  building  in  the  dense 
part  of  a  town  as  a  slaughter-house.  State 
V.  Wilson,  43  New  Hamp.  415. 

41.  Legalizing  obstruction  of  highway. 
The  defendant  having  been  convicted  of  a 
nuisance  in  unlawfully  constructing  a  rail- 
road in  a  highway,  before  sentence  could  be 
pronounced,  a  statute  was  passed  confirming 
the  location  of 'the  defendant's  road.  Ileld 
that  such  confirmation  was  no  ground  for 
arresting  judgment ;  the  effect  of  the  statute 
being  to  prevent  a  subsequent  encroachment 
from  being  deemed  a  nuisance,  but  not  acts 
committed  prior  to  its  passage.  Com.  v. 
Old  Colony,  &c.  R.  R.  Co.  14  Gray,  93. 

42.  General  rule  of  constmiction.  In 
the  construction  of  a  statute,  the  language 
may  be  qualified  by  reference  to  other  parts 
of  the  same  statute,  and  to  the  circumstances 
and  facts  to  which  it  relates,  as  well  as  by 
reference  to  cotemporaneous  legislation. 
Smith  V.  People,  47  N.  Y.  330. 

43.  When  there  are  employed  in  a  later 
statute,  the  terms  used  in  an  earlier  one 
which  has  received  a  judicial  construction, 
that  construction  is  to  be  given  to  the  later 
statute.     Com.  v.  Hartnett,  3  Gray,  450. 

44.  Statutes  in  pari  materia  are  to  be  read 
together,  for  the  reason  that  it  is  to  be 
presumed  that  a  code  of  statutes  relating  to 
one  subject  is  governed  by  the  same  spirit, 
and  intended  to  be  harmonious  and  con- 
sistent. Statutes  enacted  at  the  same  session 
of  the  Legislature  are  within  the  reason  of 
this  rule.     Smith  v.  People,  supra. 

45.  It  is  only  when  an  exception  is  found 
in  the  enacting  clause  of  a  statute,  that  it 
becomes  necessary   to    show    by    averment 


that   the   offense   does  not  fall  within  the 
exception.     Mathews  v.  State,  24  Ark.  484. 

46.  "When  to  be  liberally  construed. 
In  giving  construction  to  a  statute  for  the 
purpose  of  imprisoning  or  justifying  the 
imprisonment  of  a  party  as  a  punishment 
for  an  offense,  a  humane  interj^retation 
should  prevail.  People  v.  Kelly,  35  Barb. 
444,  per  Potter,  J. 

47.  Meaning  of  word  offender.  The 
term  "offender,"  in  the  New  York  Revised 
Statutes  defining  the  term  "  felony,"  is  not 
used  as  a  word  of  limitation  making  it  de- 
pendent upon  the  personal  status  of  the 
criminal,  or  his  exemption  from  a  particular 
punishment  by  reason  of  age  or  mental  in- 
capacity, where  the  offense  for  which  he  is 
convicted  is  a  felony  ;  but  a  word  of  general 
application,  and  means  any  crime  which  is 
punishable  by  death  or  by  imprisonment  in 
State  prison,  without  reference  to  the  per- 
sonal exemptions  or  exceptions  of  the 
criminal.  People  v.  Park,  41  N.  Y.  21, 
Lott,  J.,  disserding ;  afii'g  1  Lans.  263. 

48.  When  it  includes  persons  not  named 
in  it.  In  general,  where  a  statute  creates  a 
felony  and  prescribes  a  punisliment  therefor, 
or  where  a  statute  provides  a  punishment 
for  a  common-law  felony  by  name,  those 
who  were  present,  aiding  and  abetting  in 
the  commission  of  the  crime,  are  held  to  be 
included  by  the  statute,  although  not  men- 
tioned as  such  in  the  statute.  But  where 
the  punishment  is  imposed  by  the  statute 
upon  the  person  alone  who  actually  com- 
mitted the  acts  constituting  the  offense, 
and  not  in  general  terms  upon  those  who 
were  guilty  of  the  offense,  mere  aiders  and 
abettors  will  not  be  deemed  to  be  within  the 
act.     Stamper  v.  Com.  7  Bush,  Ky.  612. 

49.  Construction  in  case  of  repeal. 
Where  a  statute  is  in  part  repealed  or  altered, 
the  original  apd  amendatory  acts  must  be 
considered  together.  Where  the  amendatory 
act  i^rescribes  a  different  mode  of  distrib- 
uting the  penalty  from  that  directed  by  the 
original  act,  the  amendment  does  not  affect 
the  offense  or  the  penalty,  but  only  changes 
the  form  of  the  judgment.  State  v.  Wilbor, 
1  R.  L  199. 

50.  A   clause  in  a  statute  purporting  to 


SUMMAEY   CONYICTION.— SUNDAY. 


583 


Is  Regulated  by  Statute. 


Right  to  Enforce  the  Observance  of. 


repeal  other  statutes  is  subject  to  the  same 
rules  of  interpretation  as  other  enactments, 
and  the  intent  must  prevail  over  literal 
construction.  Smith  v.  People,  47  N.  Y. 
330. 


0ubovnation  of  Pcrjunj, 

See  Perjury  and  stiBORNATiON    of  per- 
jury. 


Siimmanj  Coiunctiou. 

1.  Is  regulated  by  statute.  The  power 
of  summary  conviction  being  in  derogation 
of  the  common  law,  it  must  be  confined  to 
special  statutes  from  which  its  force  is  de- 
rived.    People  V.  Phillips,  1  Parker,  95. 

2.  When  statute  must  be  strictly  fol- 
lowed. Where  a  statute  prescribes  the  form 
of  summary  conviction,  it  must  be  strictly 
followed.  But  it  is  otherwise  when  the 
statute  is  merely  directory.  Com.  v.  Hardy, 
1  Ashm.  410. 

3.  Proceedings.  Where  the  proceedings 
are  according  to  the  course  of  the  common 
law,  every  ingredient  in  the  oifense  must  be 
repeated  in  the  proof  on  the  record,  and 
cannot  be  supplied  by  reference  to  the  accu- 
sation.    Ibid. 

4.  There  must  be  an  information  or  charge, 
and  the  defendant  summoned.  All  of  the 
proceedings,  including  the  evidence,  convic- 
tion, judgment  and  execution,  must  be 
according  to  the  course  of  the  commen  law 
in  trials  by  jury,  unless  otherwise  directed 
by  statute.  There  must  be  a  record,  other- 
wise the  magistrate  will  be  liable  as  a  tres- 
passer. The  record  must  show :  the  circum- 
stances of  the  offense;  the  plea;  the  names 
of  the  witnesses;  that  the  testimony  was 
given  in  the  presence  of  the  defendant;  the 
evidence;  and  the  adjudication.  In  the 
absence  of  appeal,  the  remedy  of  the  de- 
fendant is  by  habeas  corpus  or  certiorari. 
People  V.  Phillips,  vqyra. 

5.  When  it  will  be  sustained.  Where 
the  proceedings  are  at  common  law,  and  the 
justice  is  bound  to  send  up  the  evidence  as 


part  of  his  record,  his  conclusions  will  be 
sustained  if  the  evidence  be  such  as  might 
have  been  left  to  a  jury.  Com.  v.  Hardy, 
supra. 

6.  Statute  in  relation  to,  when  void. 
The  charter  of  a  city  authorizing  the  passing 
of  ordinances,  the  punishment  for  the  viola- 
tion of  which  shall  be  imprisonment  ou 
summary  conviction,  is  unconstitutional  and 
void.  Barter  v.  Com.  8  Penn.  253;  Pitts- 
burgh V.  Young,  3  Watts,  363. 


Sunbai). 


1.  Right  to  enforce  the  observance  of. 

The  Christian  religion  is  a  part  of  the  com- 
mon law,  and  statutes  for  the  punishment  of 
Sabbath  breaking  are  not  in  derogation  of 
liberty  of  conscience.  Shover  v.  State,  5 
Eng.  259. 

2.  Conduct  which  has  a  tendency  to  bring 
religion  into  contempt,  is  punishable  at 
common  law,  and  the  Legislature  has  the 
constitutional  light  to  pass  laws  for  the  pro- 
tection of  the  Christian  Sabbath,  and  to 
prohibit  dramatic  performances  on  Sunday. 
Lindeumuller  v.  People,  33  Barb.  548. 

3.  Construction  of  statute.  A  statute 
against  keeping  open  on  Sunday,  "  a  shop, 
house,  store,  saloon,  or  other  building  in 
which  it  is  reputed  that  spirituous  and  in- 
toxicating liquors,  ale  and  lager  beer  are 
exposed  for  sale,"  does  not  include  an  in- 
closed park  of  four  acres  within  which  is  an 
open  uncovered  platform  for  dancing,  from 
which  lager  beer  is  sold.  State  v.  Barr,  39 
Conn.  40. 

4.  Labor  upon,  when  not  prohibited. 
In  North  Carolina,  it  is  not  an  indictable 
oflfense  to  labor  on  Sunday.  State  v.  Wil- 
liams, 4  Ired.  400. 

5.  In  New  Jersey,  the  sale  of  liquor  by  a 
tavern-keeper,  on  Sunday,  is  not  within  the 
statute  against  the  profanation  of  the  Lord's 
day,  for  the  reason  that  lie  is  compelled  by 
his  occupation  to  keep  a  house  of  enter- 
tainment at  all  times.  Hall  v.  State,  4 
Harring.  132. 

6.  In  Indiana,  it  was  held  tliat  the  manu- 
facture of  malt  beer  on  Sunday  was  not  a 


584 


SUNDAY, 


Work  of  Necessity. 


What  Evidence  Sufficient  to  Show  Violation  of. 


desecration   of    the    Salibath.      Crocket  v. 
State,  B3  Ind.  416. 

7.  Work  of  necessity.  On  the  trial  of 
an  information  for  the  violation  of  the  Sab- 
bath, it  appeared  that  the  defendant  was 
engaged  on  Sunday  in  gathering  and  boiling 
on  his  premises  sap  for  maple  sugar;  that  it 
was  a  good  day  for  the  flowing  of  the  sap; 
that  his  troughs  were  full  and  running  over ; 
and  that  he  had  no  way  of  saving  the  sap 
but  by  gathering  and  boiling  it.  Held  a 
work  of  necessity.  Morris  v.  State,  31  Ind. 
189. 

8.  In  Arkansas,  on  the  trial  of  an  indict- 
ment for  laboring  on  the  Sabbath,  the  fol- 
lowing instruction  was  held  erroneous : 
That  the  defendant  had  a  right  to  preserve 
his  property  from  waste  on  the  Sabbath; 
and  if  it  was  going  to  waste,  and  likely  to 
be  lost,  by  any  unforeseen  or  unavoidable 
circumstance,  he  was  justified  in  labor- 
ing to  preserve  it.  State  v.  Gofi",  20  Ark. 
289. 

9.  Complaint.  In  Massachusetts,  a  com- 
plaint was  held  sufficient  under  the  statute 
(Genl.  Sts.  ch.  84,  §  1),  which  alleged  that 
the  defendant  did,  on  a  certain  day,  "  that 
day  being  the  Lord's  day,  and  between  the 
midnight  preceding  and  the  midnight  suc- 
ceeding the  said  day,  at,"  &c.,  "  keep  open 
liis  shop  there  situate,  for  the  purpose 
of  doing  business  therein,  the  same  not 
being  then  and  there  works  of  necessity 
or  charity."  Com.  v.  Wright,  12  Allen, 
187. 

10.  Indictment.  An  indictment  for  keep- 
ing a  grocery  open  on  Sunday,  need  not 
charge  a  criminal  intent,  or  that  the  defend- 
ant is  the  owner.  Shover  v.  State,  5  Eng. 
259 ;  Brittin  v.  State,  lb.  299.  See  Hall  v. 
State,  3  Kelly,  18. 

11.  In  Indiana,  an  indictment  for  the  des- 
ecration of  the  Sabbath,  was  held  sufficient 
which  charged  that  the  defendant,  being 
over  fourteen  years  of  age,  was  found  on 
Sunday  unlawfully  at  common  labor,  en- 
gaged in  his  usual  avocation,  to  wit,  selling 
and  delivering  to  J.  O.  two  quarts  of  beer, 
and  receiving  from  him  twenty-five  cents 
in  payment  therefor.  Eitel  v.  State,  33 
Ind.  201. 


12.  What  evidence  sufficient  to  show 
violation  of.  In  Massachusetts,  a  complaint 
under  the  statute  (E.  S.  ch.  50,  §  1).  for 
keeping  a  shop  open  on  Sunday  for  business, 
is  supported  by  j^roof  that  the  door  was 
suffered  to  remain  unlatched  in  order  that 
persons  might  pass  in  and  out  on  business. 
Com.  V,  Lynch,  8  Gray,  384. 

13.  Proof  that  though  the  outer  entrances 
were  closed,  yet  if  the  defendant  permitted 
general  access  to  his  shop  through  the 
dwelling-house  to  any  one  that  pleased  to 
enter  for  the  purpose  of  traffic,  will  support 
a  complaint  for  keeping  open  a  shop  on  the 
Lord's  day.  Com.  v.  Harrison,  11  Gray, 
308.  It  may  be  left  to  the  jury  to  determine 
the  time  when  the  sun  set  on  the  day  of  the 
offense.     lb. 

14.  Burden  of  proof.  On  the  trial  of  a 
complaint  for  doing  business  in  a  saloon  in 
A^olation  of  the  statute  for  the  observance 
of  the  Lord's  day,  the  persons  who  did  the 
business  being  unknown,  and  no  connection 
having  been  shown  between  them  and  the 
defendant,  the  court  charged  that  "the 
jury  had  a  right  to  consider  whether  it  was 
probable  that  a  mere  stranger  to  the  defend- 
ant would  or  could  get  access  to,  and  pos- 
session of  the  saloon  in  the  day  time  and 
continue  to  do  so  for  the  length  of  time 
spoken  of  by  the  witnesses."  Held  errone- 
ous: the  burden  being  on  the  prosecution 
to  establish  the  fact  that  the  persons  who 
made  the  sales  were  agents  of  the  defend- 
ant, and  a  probability  of  guilt  not  being 
sufficient  to  authorize  a  conviction.  Com. 
V.  Mason,  12  Allen,  185. 

15.  Reasonable  doubt.  Where  the  dese- 
cration consists  in  the  alleged  sale  of  an 
article,  if  there  is  a  reasonable  doubt  as  to 
whether  the  transaction  was  a  sale  or  a  gift, 
there  can  be  no  conviction.  Mayer  v.  State, 
33  Ind.  203.  See  Foltz  v.  State,  lb.  215 ; 
Voglesongv.  State,  9  lb.  112. 

16.  Is  not  a  day  of  the  term  of  a  court. 
Sunday  being  dies  non  juridieus,  it  is  not 
one  of  the  days  of  the  term  of  a  court. 
Read  v.  Com.  22  Graft.  924 ;  s.  c.  1  Green's 
Crim.  Reps.  267;  referring  to  Michie  v. 
Michie's  Adm'r,  17  Graft.  109. 

See  Religious  meeting. 


THEATRICAL.— THREATENmG   TO   ACCUSE. 


585 


Indictment  for  Unlawful  Exhibition  of. 


What  Constitutes. 


S^l)catvical   IJcrformaucc. 

Indictment  for  unlawful  exhibition  of. 

An  indictment  Ti'liich  alleges  that  the  de- 
fendant "  unlawfully  exhibited  a  theatrical 
performance  "  should  state  the  facts  which 
show  that  it  was  unlawful.  Pike  v.  Com.  2 
Duvall,  Ky.  89. 


Sljvcatcmug  to  Accuse  of 

1.  What  constitutes.  On  the  trial  of  an 
information  for  threatening  to  accuse  an- 
other of  crime  with  intent  to  extort  money, 
it  appeared  that  the  threatening  letter  stated 
that  one  A.  would  commence  proceedings 
against  E.  if  the  prosecuting  attorney  did 
not,  and  would  also  bring  an  action  for 
damages,  in  both  of  which  suits  he  intended 
defendant  for  chief  witness,  whose  testi- 
mony would  be  sufficient  to  convict ;  and  it 
demanded  of  E.  whether  he  would  stand 
trial  and  be  sent  to  State  prison  for  a  term 
of  years,  or  pay  defendant  a  sufficient  sum 
to  enable  him  to  leave  that  part  of  the 
country,  and  not  appear  against  him.  Held 
by  Cooley,  J.,  and  Christiaucy,  J.,  sufficient 
under  the  statute  of  Michigan  (Comp.  L. 
1871,  §  7538),  to  authorize  a  conviction; 
but  by  Graves,  Ch.  J.,  and  Campbell,  J., 
that  in  order  to  satisfy  the  statute,  the  ac- 
cusation menaced  must  be  threatened  as 
one  to  come  from  the  author  of  the  threat, 
and  not  from  a  third  person.  People  v. 
Braman,  30  Mich.  460. 

2.  In  Maine,  the  offense  of  obtaining 
property  of  another  by  means  of  threats, 
consists  in  maliciously  threatening  to  accuse 
one  of  an  offense  or  to  injure  his  person  or 
property  with  intent  to  extort  money  or 
pecuniary  advantage  or  with  intent  to  com- 
pel him  to  do  an  act  against  his  will, 
whether  the  threats  did  or  did  not  produce 
the  desired  effect.  State  v.  Bruce,  20  Maine, 
71. 

3.  "What  does  not  amount  to.  The  fol- 
lowinsr  communication  was  held  not  to  be  a 


threatening  letter  within  the  statute  of  Ohio, 
although  at  a  subsequent  meeting  between 
the  parties,  verbal  threats  were  made  which 
resulted  in  the  person  threatened  giving  to 
the  other  his  note  for  a  hundred  dollars : 
"  Dear  sir:  Upon  examining  the  excise  law, 
1  find  that  note  you  made  me  require  stamp, 
and  that  you  are  liable  to  fine  of  two  hun- 
dred dollars  for  not  stamping  it.  You  will 
please  call  immediately,  and  make  satisfac- 
tion, and  save  yourself  trouble.  Yours  with 
respect.  W.  A.  Brabham."  Brabham  v. 
State,  18  Ohio,  N.  S.  485. 

4.  Indictment.  In  Massachusetts,  an  in- 
dictment under  the  statute  (Gen.  Stats,  ch. 
160,  §  28),  for  attempting  to  extort  money 
by  the  threat  of  a  criminal  accusation,  need 
not  set  out  the  precise  words  of  the  threat. 
Com.  V.  Moulton,  108  Mass.  307.  And  the 
indictment  need  not  name  the  offense  threat- 
ened. The  averment  that  the  defendant 
falsely  stated  that  a  warrant  had  been  issued 
to  arrest  a  person  for  a  crime,  which  would 
be  served  unless  money  was  paid  to  stay  the 
process,  was  held  sufficient.  Com.  v.  Mur- 
phy, 13  Allen,  449. 

5.  An  indictment  charged  thatO.,  C.  and 
H.,on,&c.,  "intending  fraudulently  and  mali- 
ciously to  deprive  B.  of  his  good  name  and 
character,  and  to  subject  him,  without  any 
cause,  to  punishment  for  the  crime  of  adul- 
tery, and  to  extort  from  him  money  to  the 
amount  of,"  &c.,  "did  falsely,  unlawfully, 
wickedly  and  maliciously  combine,  conspire, 
confederate,  and  agree  together  to  entrap, 
seduce  and  insnare,  and  falsely  charge  and 
accuse  him  said  B.  of  the  crime  of  adultery, 
and  thereby  and  by  the  means  aforesaid,  to 
extort,"  &c.,  Held  that  the  indictment  was 
not  bad  on  the  ground  that  it  set  forth  an 
executed  conspiracy;  nor  on  the  ground 
that  it  was  double,  vague,  uncertain,  and 
contradictory.  Com.  v.  O'Brien,  13  Cush. 
84. 

6.  An  indictment  charged  that  the  de- 
fendant willfully  and  maliciously  threatened 
E.  to  accuse  him  of  committing  the  crime 
of  fornication  and  adultery,  with  intent  then 
and  there  by  such  threat  to  extort  money, 
to  wit:  the  sum  of  $1,000,  from  him.  The 
words    of    the   threat    as    set    forth  were: 


586        THREATENING  TO   ACCUSE.— TOLL.— TREASON. 


Indictment. 


Indictment  for  Exacting. 


What  Constitutes. 


"  Halloo,  old  fellow,  I  want  yon  ;  you  have 
seduced  this  girl ;  she  will  swear  you  have ; 
her  oath  will  stand  twice  as  strong  as  yours, 
and  send  you  to  the  State  prison  for  twenty 
years.  Go  with  lue ;  I  am  Detective  Jones, 
and  if  you  will  give  me  a  thousand  dollars 
I  will  let  you  go."  It  was  objected  that  the 
language  used  did  not  import  a  threat  to 
accuse  of  crime,  but  assumed  a  state  of  facts 
upon  which  an  accusation  had  already  been 
made,  and  amounted  to  an  offer  to  com- 
pound the  offense  for  money;  and  further, 
that  the  word  "  seduced  "  did  not  imply  a 
criminal  offense  accomplished.  Held,  after 
verdict,  that  the  objection  was  insufScient. 
Com.  V.  Dorus,  108  Mass.  488. 

7.  In  Tennessee,  an  indictment  under  the 
statute  (Code,  §  4623),  providing  that,  "  If 
any  person,  either  verbally  or  by  written  or 
jjrinted  communication,  shall  maliciously 
threaten  to  accuse  another  of  a  crime  or 
offense,  or  to  do  any  injury  to  the  person  or 
property  of  another,  with  intent  thereby  to 
extort  any  money,  property,  or  pecuniary 
advantage  whatever,  or  to  compel  the  per- 
son so  threatened  to  do  any  act  against  his 
will,  he  shall,  on  conviction,  be  punished," 
tfec,  is  sufHcient  which  charges  that  the  de- 
fendant "maliciously  threatened  one  B. 
that  he  should  suffer  the  consequences 
(meaning  that  he  would  kill  him,  or  do  him 
some  great  bodily  harm,  then  and  there 
pursuing  the  said  B.  with  a  pistol),  unless 
the  said  B.,  against  his  will,  should  leave 
Smith's  Cross  Roads  immediately,  with  in- 
tent thereby  to  compel  the  said  B.  to  leave 
Smith's  Cross  Eoads  against  his  will,  from 
fear  of  injury  to  his  person,  so  menaced  and 
threatened  by  the  defendant."  State  v. 
Morgan,  3  Heisk.  262  ;  s.  c.  1  Green's  Crim. 
Reps.  521. 

8.  Evidence.  An  indictment  charging  the 
defendant  with  maliciously  threatening  to 
enter  a  complaint  against  M.  to  an  officer  for 
adultery  is  supported  by  proof  that  the  de- 
fendant having  discovered  M.  in  a  suspicious 
position  with  a  woman,  after  some  conversa- 
tion between  the  three  as  to  the  commission 
of  adultery  by  M.  with  her,  took  M.'s  note 
for  iy.'jO,  and  afterward  told  M.  that  if  the 
note  was  not  paid  in  three  days  he  would 


have  him   arrested  for  adultery.     Com.   v. 
Carpenter,  108  Mass.  15. 
See  Libel. 


Indictment  for  exacting.  In  Alabama, 
an  indictment  against  the  keeper  of  a  public 
bridge  for  exacting  illegal  toll  (Code,§  1199), 
must  allege  that  the  bridge  was  licensed, 
and  the  prescribed  rates  of  toll  must  be 
specified.  An  averment  that  the  bridge 
''was  chartered,"  and  that  "the  defendant 
being  employed  as  the  keeper  of  said 
bridge,  did  demand  and  collect  from  B.  F. 
P.  larger  toll  than  is  authorized  by  said 
charter,"  is  not  sufficient.  Lewis  v.  State, 
41  Ala.  414. 


1.  What   constitutes. 

2.  Indictment. 

3.  Jury. 

4.  evipenge. 

1.  What  constitutes. 

1.  Entering  the  service  of  the  enemy. 
Enlisting  in  the  service  of  the  enemy  is 
treason,  and  it  can  only  be  justified  by  the 
fear  of  immediate  death.  Resj}.  v.  McCarty, 
2  Dall.  8G. 

2.  Persuading  another  to  join  the 
enemy.  The  person  persuaded  to  join  the 
enemy  must  have  enlisted  in  order  to  make 
the  persuader  liable  for  treason.  Robert's 
Case,  1  Dall.  39. 

3.  Restoring  prisoners.  Giving  up  pris- 
oners and  deserters  to  the  enemy  is  treason. 
U.  S.  V.  Hodges,  2  Wheeler's  Crim.  Cas. 
477,  Houston,  J.,  dissenting. 

4.  Resisting  act  of  Congress.  To  con- 
stitute treason  against  the  United  States,  in 
resisting  an  act  of  Congress,  there  must  be 
a  conspiracy  to  resist  it  generally  and  pub- 
licly by  force  or  by  intimidation  of  num- 
bers, and  not  a  conspiracy  to  resist  such  law 
in  particular  instances  only  for  u  personal  or 
private  purpose.  U.  S.  v.  Hanway,  2  Wal- 
lace, Jr.  139. 


TREASON. 


587 


What  Constitutes. 


Indictment. 


Jury. 


Evidence. 


5.  "What  deemed    a   levying   of   war. 

To  constitute  a  levying  of  war  there  must 
be  an  assemblage  for  the  purpose  of  accom- 
plishing by  force  a  treasonable  purpose. 
The  enlistment  of  men  to  serve  against  the 
government  is  not  enough.  Ex 2jarte  Boll- 
man,  4  Cranch,  75. 

6.  An  assemblage  of  men  for  the  purpose 
of  revolutionizing  by  force  the  government 
established  by  the  United  States  in  any  of 
its  territories,  constitutes  a  levying  of  war. 
The  meeting,  and  then  marching  from 
places  of  partial  to  places  of  general  rendez- 
vous, is  such  an  assemblage.  But  the  travel- 
ing of  individuals  to  the  place  of  rendez- 
vous is  not  sufficient.     Ibid. 

7.  The  promotion  of  a  rebellion  will  not 
sustain  a  conviction  for  treason  under  the 
clause  of  the  Constitution  in  relation  to 
adhering  to  enemies  giving  them  aid  and 
comfort.  But  aiding  a  rebellion  constitutes 
a  levying  of  war;  and  the  buying  of  a  ves- 
sel, guns,  and  ammunition,  and  getting  her 
ready  for  service  in  a  rebellion,  constitute 
overt  acts  of  treason,  whether  or  not  the 
vessel  actually  sails,  or  makes  a  successful 
cruise.     U.  S.  v.  Greathouse,  3  Abb.  364. 

8.  As  to  what  constitutes  treason  in  levy- 
ing war  against  the  United  States,  and  the 
evidence  by  which  it  is  to  be  shown.  U.  S. 
V.  Vigol,  2  Dall.  346 ;  U.  S.  v.  Mitchell,  lb. 
348. 

9.  Who  regarded  traitors.  In  case  of 
the  levying  of  war,  all  persons  who  take  any 
part  in  it,  however  small,  or  however  remote 
from  the  scene  of  hostilities,  and  who  are 
leagued  in  the  general  conspiracy,  are 
deemed  traitors.  Kv  jMvte  BoUman,  4  Cranch, 
75. 

10.  What  not  deemed  treason.  Forcibly 
resisting  the  execution  of  a  law  of  the 
United  States  for  a  private  purpose  is  not 
treason.     U.  S.  v.  Hoxie,  1  Paine,  265. 

11.  Going  from  an  enemy's  squadron  to 
the  shore  with  the  intention,  peaceably,  to 
procure  provisions  for  the  enemy,  was  held 
not  to  amount  to  an  act  of  treason.  But  if 
the  intention  of  the  defendant  had  been  to 
obtain  provisions  for  the  enemy  and  to  join 
him  in  hostilities  against  the  citizens  of  the 
United  States,  his  going  toward  the  shore 


would  have  been  an  overt  act  of  favoring 
the  enemy,  though  no  other  act  were  com- 
mitted.    U.  S.  V.  Poyer,  3  Wash.  C.  C.  234. 

12.  State  courts  have  not  jmisdiction  of 
treason  against  the  United  States,  and 
therefore  the  giving  aid  and  comfort  to  the 
public  enemies  of  the  United  States  is  not 
treason  against  a  State.  People  v.  Lynch^ 
11  Johns.  549. 

2.  Indictment. 

13.  Need  not  be  specific  as  to  the  num- 
ber engaged.  The  fact  that  the  overt  act 
was  not  committed  by  the  number  of  in- 
surgents alleged  in  tbe  indictment  is  im- 
material.    U.  S.  v.  Vigol,  2  Dall.  346. 

14.  Nature  of  intelligence  sent  must 
be  alleged.  Charging  that  the  defendant 
sent  intelligence,  without  stating  the  nature 
of  it,  is  not  sufficient.  Carlisle's  Case,  1 
Dall.  35. 

3.  Jury. 

15.  Composition  of.  As  to  the  number 
and  addition  of  jurors  to  be  returned,  and 
the  form  of  the  panel  in  a  trial  for  high 
treason  in  the  United  States  Circuit  Court. 
U.  S.  V.  Insurgents,  2  Dall.  335. 


y 


4.  Evidence. 

16.  Place  of  offense.  After  an  overt  act 
of  treason  has  been  proved  to  have  been 
committed  in  the  county  where  the  indict- 
ment is  found,  evidence  may  be  given  of  an 
overt  act  in  another  county.  Malin's  Case, 
1  Dall.  33. 

17.  Presumption  from  authority  of  de- 
fendant. Proof  that  a  city  being  in  pos- 
session of  the  insurgents,  the  defendant  had 
authority  to  grant  passes,  is  competent,  but 
not  conclusive  evidence  that  he  held  a  com- 
mission under  the  enemy.  Carlisle's  Case, 
1  Dall.  35. 

18.  Proof  of  distinct  offense.  On  a  trial 
for  treason,  a  felonious  act  for  which  the 
defendant  is  held  on  another  indictment,  is 
not  admissible  in  evidence.  U.  S.  v.  Mit- 
chell, 2  Dall.  348. 

19.  Admissions  and  declarations  of  de- 
fendant. The  language  of  the  prisoner 
showing  his  intention  to  join  the  enemy,  is 


588 


TEEASOK— TRESPASS. 


Evidence. 


Meaning, 


admissible  in  evidence  on  the  question  of 
guilty  motive.  Resp.  v.  Malin,  1  Dall.  33. 
As  to  the  admissibility  of  the  defendant's 
confession,  see  Robert's  Case,  1  Dall.  39 ; 
Resp.  V.  ]\rcCartY,  2  Dall.  86. 

20.  Defendant  as  witness.  Where  two 
persons  are  sejiarately  indicted  for  treason, 
one  is  a  competent  •witness  for  the  other. 
U.  S.  V,  Hanway,  2  Wallace,  Jr.  139. 


<LVC£ipaS5. 


1.  Meaning.  The  word  trespass  when 
used  iu  the  criminal  code,  has  a  technical 
and  definite  meaning.  It  is  descriptive  of 
offenses  of  a  lower  grade  only,  and  is  in- 
cluded in  the  term  misdemeanor.  U.  S.  v, 
Flanakin,  Hemp.  30. 

2.  Invading  another's  premises.  Where 
four  men  went  upon  another's  premises,  un- 
der proceedings  before  a  justice  of  the 
peace,  which  were  a  nullity,  ejected  the  occu- 
pant and  his  family  from  the  house,  and 
canied  away  his  effects,  it  was  held  that 
they  were  guilty  of  trespass.  State  v.  Yar- 
borough,  70  N.  C.  250. 

3.  On  the  trial  of  an  indictment  for  tres- 
pass, it  was  proved  that  the  defendants, 
armed  with  a  stone,  a  stick,  a  cowhide  and 
a  pistol,  iu  a  violent  manner  and  threatening 
language,  demanded  of  the  prosecutor  to 
come  out  and  take  a  whipping.  This  was 
at  a  gate  within  forty  feet  of  his  house. 
Held  that  a  con\'iction  was  proper.  State  v. 
Buckner,  Phil.  N.  C.  558. 

4.  The  defendants  from  near  dark  until 
eleven  o'clock  at  night  rode  back  and  forth 
on  the  highway  in  front  of  the  prosecutor's 
house,  who  owned  the  land  on  both  sides  of 
the  highway,  dancing,  singing,  cursing  and 
firing  off  two  shots,  the  prosecutor's  wife 
being  at  the  time  seriously  ill,  and  refused 
to  desist  upon  being  requested.  Held  that 
they  were  guilty  of  forcible  trespass.  State 
V.  Widenhouse,  71  N.  C.  279;  approving 
State  V.  Buckner,  supra. 

5.  In  taking  personal  property.  Al- 
though a  person  may  wrongfully  take  the 
goods  of  another,  yet  unless  he  intended  to 
assume  the  property  in  them,  and  to  con- 


vert them  to  his  own  use,  it  wiU  be  trespass 
and  not  robbery.  State  v.  Sowls,  Phil.  N. 
C.  151 ;  State  v.  Deal,  64  N.  C.  270. 

6.  At  common  law,  a  trespass  in  relation 
to  personal  property  was  not  an  indictable 
offense  without  a  breach  of  the  peace,  or  un- 
less the  act  complained  of  directly  and 
manifestly  tended  to  it  by  being  done  in  the 
presence  of  the  owner,  or  to  his  terror,  or 
against  his  will.  State  v.  Phipps,  10  Ired. 
17. 

7.  Forcibly  taking  from  another  his  horse, 
is  not  indictable.  State  v.  Farnsworth,  10 
Yerg.  261.  But  it  is  otherwise  as  to  a  tres- 
pass which  is  accompanied  with  a  breach  of 
the  peace.  State  v.  Batchelder,  5  New 
Hamp,  549. 

8.  To  constitute  an  indictable  trespass  in 
taking  tlie  personal  property  of  another, 
there  need  not  have  been  an  actual  putting 
in  fear.  It  is  only  necessary  that  the  force 
be  such  as  is  calculated  to  intimidate  or 
alarm  or  involve  or  tend  to  a  breach  of  the 
peace.     State   v.  Pearman,  Phil.  N.  C,  371. 

9.  Two  white  men  went  to  the  house  of  a 
colored  man,  and  one  of  them  claiming  a 
cow  which  was  there,  said  that  he  intended 
to  take  her  away.  The  colored  man  insisted 
upon  his  right  to  the  cow,  and  went  to  a 
neighbor's  to  get  a  witness  to  prove  his 
title.  While  he  was  gone  the  men  took  pos- 
session of  the  cow ;  but  when  he  returned, 
he  forbade  them  to  drive  her  oft',  which  how- 
ever they  did.  Held  that  they  were  guilty 
of  trespass.  State  v.  McAdden,  71  N,  C. 
207. 

10.  Destruction  of  personal  property. 
In  Maine,  to  constitute  the  wrongful  de- 
struction of  personal  property  within  the 
statute  (R.  S.  ch.  162,  §  13),  it  makes  no 
difference  whether  the  defendant's  posses- 
sion was  rightful  or  wrongful.  State  v. 
Pike,  33  Maine,  361. 

11.  Right  of  entry.  One  who  has  been 
in  the  employ  of  another,  has  a  right  to  go 
on  to  his  former  employer's  premises  to  de- 
mand his  wages,  but  if  ordered  to  leave  he 
cannot  lawfully  remain.  Peoj^le  v.  Osborn, 
1  Wheeler's  Crim.  Cas.  97. 

12.  Right  to  expelintruder.  Where  a  per- 
son enters  peaceably  on  the  laud  of  another. 


TRESPASS. 


589 


Right  of  Landlord  to  Resume  Possession,     Averment  of  Act  Constituting  Offense. 


and  is  committing  no  violence,  there  must 
be  a  request  to  depart  and  refusal  before  the 
owner  can  expel  him  by  force.  State  v. 
Woodward,  50  New  Hamp.  527. 

13.  A  person  may  lawfully  go  to  an  inn  as 
a  guest,  or  for  the  purpose  of  selling,  any- 
thing. He  has  a  right  to  remain  there  as  a 
guest  so  long  as  he  behaves  himself  properly 
and  pays  for  his  entertainment.  If  he  goes 
there  to  sell  articles,  when  that  is  done  he  is 
to  leave,  if  the  owner  of  the  house  desires 
him;  and  if  he  refuse,  the  innkeeper  may 
expel  him  with  so  much  force  as  is  neces- 
sary. If  the  party  refuse  to  go,  and  arm 
himself,  threatening  to  resist,  the  innkeeper 
is  not  bound  to  commence  his  removal  by 
such  gentle  modes  as  would  be  ineffectual 
and  dangerous  to  himself.  State  v.  Whitby, 
5  Harring.  494. 

14-  The  authority  ©f  a  person  to  expel  an 
intruder  is  not  confined  to  the  walls  of  his 
house,  but  extends  to  the  pavement  or  walk 
before  the  door.     Ibid. 

15.  Right  of  landlord  to  resume  posses- 
sion. When  a  tenant's  right  of  possession 
is  at  an  end,  the  landlord  may  resume  pos- 
session without  process,  if  he  can  do  so 
without  a  breach  of  the  peace ;  but  when  re- 
sisted, he  cannot  lawfully  take  out  the 
windows  and  doors,  and  remove  the  ten- 
ant's property.     Com.  v.  Haley,  4  Allen,  318. 

16.  Unjustifiable  force  in  retaking  per- 
sonal property.  The  owner  of  personal 
property,  in  attempting  to  retake  it  from  a 
trespasser,  will  not  be  justified  in  using  a 
deadly  weapon,  although  in  consequence  of 
the  superior  strength  of  the  trespasser  he 
cannot  otherwise  get  possession  of  it ;  nor 
will  he  be  justified  in  resorting  to  such  force 
as  even  amounts  to  a  breach  of  the  peace. 
Kunkle  v.  State,  32  Ind.  220. 

17.  When  an  indictment  will  lie.  A 
forcible  entry  on  laud  is  indictable  at  com- 
mon law.     State  v.  Morris,  3  3Io.  127. 

18.  To  render  a  trespass  on  land  indict- 
able, it  must  have  been  committed  in  a  man- 
ner which  amounts  to  a  breach  of  the  peace, 
or  which  would  have  led  thereto  if  the  per- 
son in  possession  had  resisted  the  entry. 
State  V.  Ross,  4  .Tones,  315 ;  State  v.  Cov- 
ington, 70  N.  C.  71. 


19.  An  act  which  is  only  a  private  tres- 
pass, cannot  be  made  indictable  by  being 
charged  to  have  been  committed  with  force 
of  arms,  maliciously,  without  claim  of  right, 
or  without  any  motive  of  gain.  Therefore, 
an  indictment  charging  that  the  defendant 
"  with  force  and  arms,  unlawfully,  willfully, 
and  maliciously,  did  break  in  pieces  and 
destroy  two  windows  in  the  dwelling-house 
of  A.,  to  the  great  damage  of  the  said  A., 
and  against  the  peace,"  &c.,  does  not  state 
an  indictable  offense.  Kilpatrick  v.  People, 
5  Denio,  277. 

20.  Averment  of  act  constituting  of- 
fense. An  indictment  which  alleges  that 
the  defendant  entered  the  premises  of  the 
prosecutor  with  a  strong  hand,  he  being 
then  and  there  present,  sufficiently  charges  a 
forcible  trespass.  State  v.  Buckner,  PhiL 
N.  C.  558. 

21.  An  indictment  at  common  law  for 
"  unlawfully  and  injuriously  taking  a  horse 
with  force  and  arms,"  does  not  charge  a 
breach  of  the  peace.  Israel's  Case,  4  Leigh, 
675. 

22.  Description  of  place.  In  an  indict- 
ment for  willfully  cutting  timber  on  the 
land  of  another,  under  the  statute  of  New 
York,  the  close  or  lot  on  which  the  timber 
was  cut  must  be  described  with  reasonable 
certainty.  People  v.  Carpenger,  5  Parker, 
228. 

23.  An  indictment  alleged  that  the  de- 
fendant did  unlawfully  cut  down  and  re- 
move on  and  from  the  land  belonging  to 
M.  S.,  in  said  county,  a  tree,  the  property 
of  M.  S.,  &c.  Held  that  the  description  of 
the  lands  where  the  trespass  was  committed 
was  sufficient.  Newland  v.  State,  30  Ind. 
111. 

24.  Trial.  Where  several  are  indicted 
for  trespass,  one  of  the  defendants  cannot 
claim,  as  matter  of  right,  that  the  jury  shall 
be  required  to  pass  upon  the  guilt  or  inno- 
cence of  the  others  first.  Such  a  course, 
although  in  the  discretion  of  the  court,  is 
rarely  pursued,  unless  there  is  no  evidence 
against  one  of  the  defendants,  or  the  court  is 
satisfied  that  he  was  joined  in  the  indict- 
ment to  prevent  his  being  a  witness.  State 
V.  Bogue,  9  Ired.  3G0. 


590 


TRESPASS.— TRIAL. 


Evidence. 


Matters  Preliminary  to. 


25.  Evidence.  An  indictment  for  forcible 
trespass  to  jDersonal  property  is  not  sustained 
by  proof  of  carrying  away  rails  from  a  fence ; 
the  fence,  when  constructed,  becoming  a 
part  of  the  land.  State  v.  Graves,  74  N.  C. 
396. 

26.  The  intent  with  which  a  child,  under 
twelve  years  of  age,  is  forcibly  taken  from 
its  parents,  is  a  question  of  fact  to  be  deter- 
mined by  the  jury.  Oliver  v.  State,  17  Ala. 
588. 

See  Forcible  trespass. 


£riaL 


1.  Matters  preliminary  to. 

2.  Impaneling  jury. 

{a)  Excusing  jurors. 

(b)  Of  challenges  in  general. 

(c)  Grounds  of  principal  cliallenge  to  the 
polls. 

(d)  Grounds  of  challenge  to  the  polls  for 
favor. 

(e)  Peremptory  challenge. 
(/}  Completion  of  jury. 

3.  Initiatory  proceedings  in  the  case. 

4.  Proceedings  in  the   conduct  op  the 
case. 

(a)  Introduction  of  evidence, 
(h)  Ruling  of  court. 

(c)  Deportment  of  the  jury  lohile  tlie  case 
is  before  them. 

(d)  Summing  up  of  counsel. 

(e)  Charge  'of  judge. 

0.  Proceedings  subsequent  to  submitting 
CASE  TO  jury. 

6.  Record  of  conviction. 

1.  Matters  preliminary  to. 

1.  Right  of  prisoner  to  speedy  trial. 
A  person  charged  with  crime  has  the  con- 
stitutional right  to  a  speedy  and  impartial 
trial.  Nixon  v.  State,  3  Smed.  &  Marsh. 
497. 

2.  Place  of  trial  vp-here  offense  is  com- 
mitted on  vessel.  In  Missouri,  the  statute 
providing  that  the  trial  of  a  person  guilty 
of  felony  on  board  of  a  vessel,  might  be  had 
in  any  county  through  which  such  vessel 
should  pas?,  or  at  which  such  voyage  should 


terminate,  was  held  constitutional.     Steer- 
man  V.  State,  19  Mo.  503. 

3.  Summoning  jury  and  filing  jury  lists. 
Where  a  sherift"  is  directed  to  summon  a 
jury,  he  may  do  it  himself,  or  direct  it  to  be 
done  by  a  constable  or  deputy.  People  v. 
McGeery,  6  Parker,  653.  The  statute  of 
New  York  as  to  the  date  of  the  jury  lists, 
and  the  time  they  shall  be  filed  is  directory. 
Such  lists  are  valid,  though  made  and  filed 
at  later  dates  than  those  mentioned  in  the 
statutes.  Gardiner  v.  People,  6  Parker,  155. 
Nor  is  it  essential  to  the  validity  of  a  list  of 
jurors,  that  the  town  clerk  was  present  when 
it  was  signed.  lb.  When  the  list  as  re- 
returned  is  valid  on  its  face,  it  is  conclusive 
upon  the  prisoner  as  to  its  regularity.     lb. 

4.  Serving  prisoner  with  copy  of  in- 
dictment and  venire.  Where  a  statute 
provided  that  in  capital  cases  the  prisoner 
should  have  a  copy  of  the  indictment  and 
of  the  venire  two  entire  days  before  the 
trial,  it  was  held  the  duty  of  the  court  to 
see  that  it  was  done,  and  that  the  sheriff 
was  the  proper  person  to  serve  such  co])y. 
Friar  v.  State,  3  How.  Miss.  422. 

5.  In  Alabama,  it  was  held  that  in  comput- 
ing the  two  days  before  the  trial  within  which 
the  prisoner  in  a  capital  case  was  entitled  to 
be  furnished  with  a  list  of  the  jurors,  the 
day  of  delivery,  and  the  day  of  trial  were 
to  be  excluded.  State  v.  McLendon,  1  Stew. 
195.  In  South  Carolina,  where  the  iDrisoner 
was  entitled  to  three  days  in  which  to  pre- 
pare for  trial,  it  was  held  that  the  time  in- 
cluded the  day  on  which  the  prisoner  moved 
for  a  copy  of  the  indictment.  State  v. 
Briggs,  1  Brev,  8. 

6.  Waiver  of  right  to  copy  of  indict- 
ment. Where  the  prisoner  is  entitled  by 
law  to  a  copy  of  the  indictment  and  venire 
before  trial,  he  waives  the  right  by  plead- 
ing not  guilty.  State  v.  Johnson,  Walker, 
392. 

7.  In  Georgia,  it  was  held  that  although 
a  prisoner  might  refuse  to  be  arraigned  un- 
til furnished  with  a  copy  of  the  indictment 
and  a  list  of  the  witnesses  who  testified  be- 
fore the  grand  jury,  yet,  that  the  neglect  of 
the  prisoner  to  demand  such  copy  and  list 
ou  the  arraignment,   was  a  waiver  of  the 


TRIAL. 


591 


Matters  Preliminary  to. 


right,  and  left  it  discretionary  with  the 
prosecuting  attorney  whether  or  not  -he 
would  afterward  furnish  them.  State  v. 
Calvin,  R.  M.  Charlt.  142.  In  New  Hamp- 
shire, it  was  held  not  error  in  the  court  on 
the  trial  of  an  indictment  for  carnally  know- 
ing and  abusing  a  female  child  under  the 
age  of  ten  years,  to  refuse  to  instruct  the 
jury  that  they  could  only  convict  the  defend- 
ant of  a  simple  assault  because  a  copy  of  the 
indictment  was  not  furnished  to  him  before 
he  was  arraigned.  Lord  v.  State,  18  New 
Hamp.  173. 

8.  Employment  of  counsel  by  prose- 
cution. In  Massachusetts,  where  additional 
counsel  are  employed  by  the  prosecution,  it 
must  be  at  the  request  of  the  district  attor- 
ney, and  under  some  stringent  reason  arising 
in  the  particular  case ;  and  the  control  and 
direction  of  the  case  must  remain  with  the 
public  prosecutor.  Com.  v.  Williams,  2 
Cush.  583. 

9.  Compelling  bill  of  particulars.  The 
court  may,  when  justice  cannot  otherwise  be 
done,  compel  the  production  of  a  bill  of 
particulars.  Com.  v.  Snelling,  15  Pick. 
321. 

10.  Release  of  prisoner  for  want  of 
trial.  The  New  York  statute  which  pro- 
vides that  unless  the  prisoner  shall  be  brought 
to  trial  before  the  end  of  the  next  court 
held  in  the  county  after  indictment  found, 
he  shall  be  entitled  to  be  discharged,  is  not 
a  statute  of  limitations,  but  a  failure  to 
comply  with  it  is  a  mere  irregularity.  Peo- 
ple v.  Ruloff,  5  Parker,  77.  In  Alabama,  it 
was  held  under  the  statute  of  that  State, 
that  if  the  prisoner  in  a  capital  case  was  not 
indicted  and  tried  before  the  second  term  of 
the  court  after  his  commitment,  he  must  be 
discharged,  notwithstanding  the  trial  was 
unavoidably  postponed,  unless  the  postpone- 
ment was  on  the  prisoner's  application,  or 
with  his  consent.  State  v.  Phil,  1  Stew. 
31. 

11.  In  Missouri,  it  was  held  that  the  stat- 
ute which  provided  that  persons  indicted 
and  imprisoned  should  be  discharged  in 
case  they  were  not  tried  during  the  second 
term  after  the  indictment  was  found,  was 
applicable   to  a  pending  indictment  only, 


and  that  where  the  defendant  had  been  im- 
prisoned under  an  indictment  which  had 
been  quashed,  the  time  of  such  imjirisou- 
ment  could  not  be  added  to  the  time  of  his 
imprisonment  under  a  second  indictment  for 
the  same  offense.  Fanning  v.  State,  14  Mo. 
386. 

12.  Moving  case  for  trial.  In  New 
York,  a  case  cannot  be  moved  out  of  its 
order  on  the  calendar  by  the  prisoner's  comi- 
sel,  unless  the  notice  of  argument  states  his 
intention  to  bring  it  on  out  of  its  order. 
Barron  v.  People,  1  Barb.  136. 

13.  In  Tennessee,  where  the  prisoner  was 
put  upon  his  trial  on  the  presentment  of  the 
grand  jury,  instead  of  an  indictment,  it  was 
held  that  this  practice  had  been  so  long  pur- 
sued in  that  State,  its  legality  could  not  be 
questioned,  although  it  might  not  be  sanc- 
tioned by  established  principles.  Smith  v. 
State,  1  Humph.  396. 

14.  The  judge  has  no  power  to  order  the 
names  of  any  of  the  defendants  to  be  erased 
from  the  indictment.  State  v.  Lendon,  5 
Strobh.  85. 

15.  Separate  trial  in  discretion  of  court. 
Where  several  are  jointly  indicted  for  a  fel- 
ony,they  are  not  entitled  to  sejoarate  trials  as  a 
matter  of  right,  although  they  sever  in  their 
pleas;  but  the  court  may,  in  its  discretion, 
allow  them  to  be  tried  separately.  People 
V.  Stockham,  1  Parker,  424 ;  U.  S.  v.  Gibert, 
2  Sumner,  19;  State  v.  Lendon,  5  Strobh, 
85 ;  Com.  v.  Eastman,  1  Cush.  189,  It  was 
therefore  held  not  ground  of  exception  that 
before  the  jury  were  impaneled  for  the 
trial  of  i^ersons  jointly  indicted  for  murder, 
they  moved  that  they  be  allowed  separate 
trials,  which  motion  was  denied.  State  v. 
Conley,  39  Me.  78,  referring  to  State  v.  So- 
per,  16  lb.  293,  and  U.  S.  v.  Merchant,  12 
Wheat.  480.  In  New  York,  where  prisoners 
are  jointly  indicted  and  they  elect  to  have 
separate  trials,  the  district  attorney  may  de- 
termine which  of  them  he  will  first  put 
upon  his  trial,  and  a  refusal  of  the  court  to 
interfere  with  his  discretion  forms  no  ground 
of  exception.  Patterson  v.  People,  46  Barb. 
025.     And  see  Jones  v.  State,   1  Kelly,  610. 

16.  Arraignment  of  prisoner.  When 
the  prisoner  was  not  arraigned,   tlie  judg- 


592 


TEIAL. 


Matters  Preliminary  to. 


ment  "will  be  reversed.  Powell  v.  U.  S.  1 
Morris,  17.  If  a  deaf  and  dumb  person  be 
arraigned,  the  indictment  must  be  explained 
to  liim  by  a  sworn  interpreter.  Com.  v. 
Hill,  14  Mass.  207.  When  the  prisoner  has 
been  arraigned  in  the  court  where  the  indict- 
ment -R-as  found,  it  is  not  necessary  that  he 
be  arraigned  at  the  court  to  which  the  case 
is  removed,  the  arraignment  not  being  part 
of  the  trial.  Price  v.  State,  8  Gill,  395. 
But  his  second  arraignment  would  not  be 
error,     Gardiner  v.  People,  3  Scam.  83. 

17.  Where  the  prisoner  is  discharged  upon 
an  indictment,  he  cannot  afterward  be  ar- 
raigned or  tried  imder  that  indictment. 
But  another  indictment  may  be  found  for 
the  same  otFense.  State  v.  Garthwaite,  3 
Zabr.  143. 

18.  Prisoner  standing  mute.  Where  a 
prisoner  upon  being  arraigned  stands  mute, 
and  it  is  suggested  that  he  is  deaf  and 
dumb,  a  jury  should  be  impaneled  to  try 
the  fact,  and  if  the  finding  be  in  the  affirma- 
tive, and  that  he  is  incapable  of  understand- 
ing the  nature  and  incidents  of  a  trial,  the 
court  should  order  it  to  be  so  certified,  to 
the  end  that  provision  may  be  made  for  his 
safe  keeping  in  an  asylum  for  the  insane,  or 
otherwise  according  to  law.  State  v.  Har- 
ris, 8  Jones,  136. 

19.  A  prisoner  arraigned  for  larceny  stood 
mute  ;  and  a  jury  having  found  that  he 
stood  mute  fraudulently,  willfully  and  de- 
liberately, he  w^as  sentenced  as  upon  con- 
viction.    Com.  V.  Moore,  9  Mass.  402. 

20.  A  conviction  before  a  magistrate  will 
be  sustained  by  a  record  showing  that  the 
defendant  upon  being  asked  whether  he  was 
guilty  or  not  guilty,  fraudulently  and  will- 
fully stood  mute,  and  that  after  the  examin- 
ation of  witnesses,  and  a  full  hearing  of  the 
case,  he  was  adjudged  guilty  and  sentenced 
to  imprisonment.  Elleuwood  v.  Com.  10 
Mete.  233. 

21.  Waiver  of  arraignment.  In  misde- 
meanor, the  prisoner  may  waive  a  formal  ar- 
raignment.    Kluget  V.  State,  1  Kansas,  365. 

22.  A  person  accused  of  murder,  having 
been  served  with  a  copy  of  the  indictment 
according  to  law,  went  with  the  prosecut- 
ing attornev  and  his  own  counsel  before  the 


court,  personally  waived  an  arraignment, 
and  entered  such  waiver  and  his  plea  of  not 
guilty  on  the  indictment.  Held  that  he 
could  not  object  after  conviction,  that  he 
had  not  been  arraigned.  Goodin  v.  State, 
16  Ohio,  K  S.  344. 

23.  When  the  defendant  is  present  in  per- 
son and  by  counsel  states  that  he  is  ready 
for  trial,  and  is  tried  by  a  jury  regularly  im- 
paneled and  sworn,  he  waives  the  failm-e 
to  arraign  him,  and  to  enter  a  formal  plea 
of  not  guilty.  State  v.  Cassacfy,  12  Kansas, 
550. 

24.  The  record  is  sufficient  when,  al- 
though it  does  not  state  that  the  defendant 
was  arraigned,  yet  states  that  he  aj)peared, 
moved  by  his  counsel  to  quash  the  indict- 
ment, which  being  overruled,  he  pleaded 
not  guilty.     Sohn  v.  State,  18  Ind.  389. 

25.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  kill,  the  defendant 
being  present  and  announcing  that  he  was 
ready,  a  jury  was  impaneled.  After  the 
prosecution  had  examined  in  chief  the  first 
witness,  it  was  discovered  that  the  defend- 
ant had  not  been  arraigned.  This  was  then 
done  and  the  defendant  pleaded  not  guilty. 
The  defendant  thereupon  objected  to  any 
further  proceedings,  and  moved  that  he  be 
discharged,  which  motion  was  overruled. 
The  jury  were  then  resworn,  and  the  trial 
begun  de  novo.  Held  that  there  was  no  er- 
ror.    State  V.  Weber,  32  Mo.  333. 

26.  Plea  in  abatement.  The  prisoner 
when  first  arraigned,  though  at  a  subsequent 
term  of  the  court,  may  plead  in  abatement 
that  the  grand  jurors  who  found  the  indict- 
ment were  not  selected  conformably  to  the 
statute.     Vattier  v.  State,  4  Blackf.  73. 

27.  Advantage  of  the  misnomer  of  the 
defendant's  christian  name,  sirname,  or  ad- 
dition, must  be  taken  by  motion  to  quash  or 
l^lea  in  abatement  on  his  arraignment.  And 
if  there  be  no  addition,  and  the  party  ap- 
pear and  plead  not  guilty,  he  will  be  deemed 
to  have  waived  the  defect.  State  v.  Mc- 
Gregor, 41  New  Hamp.  407. 

28.  Plea  of  non-identity.  This  plea 
which  is  made  ere  tenus  at  the  bar  of  the 
court,  is  never  allowed,  unless  the  prisoner 
has  escaped  after  verdict  and  before  judg- 


TRIAL. 


593 


Matters  Preliminary  to. 


Impaneling  Jury. 


Of  Challenges  in  General, 


nient  or  execution.     Joseph  v.  State,  5  How. 
Miss.  20. 

29.  Proof  of  identity.  The  fact  that  the 
prisoner  has  been  arraigned  and  pleaded  to 
the  indictment,  is  sufficient  proof  of  his 
identity.     Hendrick  v.  State,  6  Texas,  341. 

30.  Replication  to  plea.  A  replication 
to  a  plea  of  former  conviction  m  these 
words:  "Arrest  of  judgment,"  is  bad  on 
demurrer.  The  replication  ought  to  show 
that  the  former  indictment  was  insufficient, 
or  that  the  defendant  could  not  be  convicted 
for  the  offense  charged  in  the  second  indict- 
ment.    Henry  v.  State,  33  Ala.  389. 

31.  Where  two  defective  special  pleas  in 
bar,  substantially  the  same,  are  interposed 
by  the  prisoner,  and  issue  is  taken  on  one 
of  them,  the  failure  of  the  court  to  require 
the  prosecution  to  demur,  reply,  or  take 
issue  on  the  other,  is  not  ground  of  objection 
on  error.     Ibid. 

32.  Plea  of  guilty.  This  will  not  be  re- 
ceived in  a  capital  case  until  after  the  court 
has  advised  the  prisoner  of  its  effect,  and 
upon  proof  that  it  is  done  freely,  and  that 
the  prisoner  is  sane.  Com.  v.  Batris,  1  Mass. 
95 ;  Kinney  v.  People,  2  Gilman,  540. 

33.  Determination  of  question  as  to  in- 
sanity of  prisoner.  Although  when  the 
insanity  of  the  prisoner  is  alleged  or  sus- 
])ected,  the  most  prudent  method  of  deter- 
mining the  question  is  a  trial  by  jury,  yet 
other  modes  may  be  adopted,  in  the  dis- 
cretion of  the  court.  Freeman  v.  People,  4 
Denio,  9. 

34.  Plea  of  not  guilty.  Where  a  pris- 
oner on  a  trial  for  murder  pleads  not  guilty, 
and  for  his  trial  "puts  himself  upon  his 
country,"  it  is  sufficient  without  saying  "  on 
God  and  his  country."  State  v.  Reeves,  8 
Ired.  19. 

35.  The  prisoner,  by  pleading  not  guilty, 
admits  the  name  by  which  he  is  described 
in  the  indictment,  and  is  estopped  from 
afterward  denying  it.  Uterburgh  v.  State, 
8  Blackf.  202. 

36.  Waiver  of  objection  to  grand  juror. 
After  a  ])lea  to  the  nieiits,  the  dctendant 
cannot  object  that  one  of  the  grand  jurors 
■who  found  the  indictment  was  an  alien, 
although  he  had  no  knowledge  of  the  dis- 

38 


qualification  until  after  the  filing  of  the 
plea.  Byrne  v.  State,  12  Wis.  519;  Grubb 
V.  State,  14  lb.  434. 

37.  Refusal  to  plead.  When  the  defend- 
ant refuses  to  plead,  the  plea  of  not  guilty 
should  be  entered.  Kinney  v.  People,  2 
Gilman,  540;  Thomas  v.  State,  6  Mo.  457; 
Meader  v.  State,  11  lb.  363. 

38.  After  the  ]5risoner's  plea  of  once  in 
jeopardy  was  overruled,  he  was  required  by 
the  court  to  plead  over  to  the  indictment, 
and  on  refusing  so  to  plead,  a  plea  of  not 
guilty  thereto  was  entered  on  the  indict- 
ment by  order  of  the  court.  Held  that  this 
was  proper  under  the  statute  (3  N.  Y.  R.  S. 
5th  ed.  p.  1022,  §  74.)  Gardiner  v.  People, 
6  Parker,  155. 

39.  Remanding  prisoner.  Where  the 
prisoner  is  infected  with  the  small-pox,  a 
trial  demanded  by  him  may  be  refused, 
although  the  statute  requires  that  he  be 
tried  at  the  second  term  of  the  court  after 
the  finding  ®f  the  indictment.  Com.  v. 
Jailer,  7   Watts,  866. 

40.  Where  at  the  first  term  of  the  court 
after  the  finding  of  the  indictment,  a  wit- 
ness for  the  prosecution  who  was  under  re- 
cognizance to  attend  fraudulently  neglected 
to  do  so,  it  was  held  that  the  prisoner  might 
be  remanded,  although  it  did  not  appear 
that  he  had  anything  to  do  with  keeping 
the  witness  away.  Com.  v.  Carter,  11  Pick. 
277. 

2.  Impaneling  jury. 
{n)  Excusing  jurors, 

41.  Authority  of  court  in.  The  court 
may  excuse  jurors  in  a  capital  ease,  upon 
their  application,  for  any  reasonable  cause. 
State  V.  Craton,  6  Ired.  164. 

(I)   Of  challenges  in  general. 

42.  In  United  States  courts.  The  act  of 
Congress  of  July  20th,  1840  (5  Stats,  at 
Large,  394),  confers  upon  the  courts  of  the 
United  States  the  power  to  regulate  the 
challenges  of  jurors,  except  in  capital  cases, 
and  in  those  the  act  of  1790  gives  the  right 
of  peremptory  challenge.  U.  S.  v.  Shackle- 
ford,  18  How.  U.  S.  588. 

43.  Challenge  to  the  array.  Objections 
to  the   mode   of  summoning   the   jury  are 


594 


TRIAL. 


Impaneling  Jury. 


Of  Challenges  in  General. 


made  by  a  challenge  to  the  array,  or  by 
motion  to  quash  the  indictment.  Stone  v. 
People,  2  Scam.  326. 

44.  The  irregular  drawing  and  summon- 
ing of  jurors,  without  fraud  or  corruption  on 
the  part  of  the  officers  or  prejudice  to  the 
prisoner,  is  not  a  ground  of  challenge  to  the 
array,  Ferris  v.  People,  48  Barb.  17;  affi'd 
35  N.  Y.  125.  I 

45.  That  the  court  excused  a  majority  of 
the  jurors  drawn  from  attendance  without 
reasonable  cause  is  not  a  ground  of  chal- 
lenge to  the  array.     lb. 

46.  The  formation  or  expression  of  an 
opinion  by  the  sheriff"  as  to  the  guilt  or 
innocence  of  the  prisoner  is  not  a  ground 
of  challenge  to  the  array.  Some  other 
fact  must  be  alleged  in  the  challenge,  as 
that  the  sheriff  had  intentionally  emitted 
to  summon  some  juror,  or  had  stated  his 
opinion  to  some  juror.     lb. 

47.  The  venire  or  list  of  jurors  summoned 
in  a  capital  case  will  not  be  quashed  because 
one  of  the  persons  summoned  was  a  member 
of  the  grand  jury  which  found  the  indict- 
ment.    Birdsong  v.  State,  47  Ala.  68. 

48.  The  fact  that  the  officer  whose  duty 
it  is  to  summon  jurors  has  expressed  an 
opinion  as  to  the  guilt  or  innocence  of  the 
prisoner  is  not  ground  of  challenge  to  the 
array.  Friery  v.  People,  2  N.  Y.  Ct.  of 
Appeals  Decis.  215;  affi'g  54  Barb.  319;  s. 
c.  2  Keyes,  424. 

49.  The  district  attorney  need  not  verify 
his  answer  to  a  challenge  to  the  array. 
Gardiner  v.  People,  6  Parker,  155. 

50.  Order  of  challenge  to  the  polls. 
Challenges  to  petit  jurors  are  first  made  by 
the  prisoner,  and  afterward  by  the  prosecu- 
tion.    .Jones  V.  State,  2  Blackf.  475. 

51.  Challenge  in  case  of  joint  defendants. 
Each  defendant  in  a  joint  trial  under  a  joint 
indictment  may  challenge  the  entire  number 
of  jurors  that  he  would  be  entitled  to  if  tried 
separately.     Bristcr  v.  State,  26  Ala.  107. 

52.  Right  to  interrogate  juror.  Neither 
side  has  a  right  to  interrogate  a  juror  before 
he  is  challenged.  State  v.  Flower,  Walker, 
318 ;  Com.  v.  Webster,  5  Cush.  295 ;  State 
Y.  Zellers,  2  Halst.  220;  King  v.  State,  5 
How.  Miss.  730. 


53.  Counsel  has  no  right  to  interrogate 
the  jurors  with  a  view  of  showing  their 
bias  or  prejudice,  by  facts  drawn  out  by  a 
cross-examination.  Com.  v.  Gee,  6  Cush. 
174. 

54.  The  prosecution  cannot  ask  a  juror 
whether  he  has  so  made  up  his  mind  that  it 
cannot  be  changed  on  the  trial ;  the  prisoner 
not  being  obliged  to  take  upon  himself  the 
burden  of  altering  the  juror's  mind.  Whit- 
man's Case,  2  Wallace,  Jr.  147. 

55.  But  where  a  juror  is  challenged  to 
the  favor  and  called  as  a  witness  in  sup- 
port of  the  challenge  to  show  a  bias  derived 
from  what  he  has  heard  or  read  on  the  sub- 
ject, he  may  be  asked  on  his  cross-examina- 
tion, his  opinion  as  to  the  character  and 
extent  of  the  supposed  bias,  and  whether 
he  thinks  it  will  influence  him  after  hearing 
the  evidence.  People  v.  Knickerbocker,  1 
Parker,  302. 

56.  The  testimony  of  a  juror  on  the  chal- 
lenge to  him  for  favor  which  is  taken  after 
a  challenge  for  principal  cause,  cannot  be 
considered  on  the  question  whether  the 
challenge  for  principal  cause  was  properly 
decided.     Cancemi  v.  People,  16  N.  Y.  501. 

57.  Mode  of  determining  challenge  to 
the  polls.  It  is  the  duty  of  counsel  to  state 
the  ground  of  challenge.  People  v.  Freeman, 
4  Denio,  9.  If  the  grounds  stated  are  such 
as  in  law  render  the  juror  incompetent,  the 
challenge  is  for  principal  cause.  When  the 
causes  assigned  do  not,  in  and  of  themselves 
render  the  juror  incompetent,  but  are  such 
as  indicate  partiality  or  bias,  or  other  in- 
competency, but  are  not  conclusive  of  it,  the 
challenge  is  to  the  favor.  The  opposite 
counsel  may  demur,  or  deny  the  truth  of  the 
matter  alleged,  and  put  the  challenger  to 
proof  of  them.  If  he  demurs,  the  facts  are 
admitted,  and  the  question  is  one  ©f  law, 
and  the  decision  may  be  reviewed  on  writ  of 
error.  If  the  facts  are  denied,  and  they  are 
heard  by  the  court  or'  triers,  and  are  found 
not  to  be  true,  the  decision,  as  a  question  of 
fact,  is  final.  People  v.  Mallon,  3  Lans. 
224 ;  People  v.  Allen,  43  N.  Y.  28. 

58.  It  is  competent  for  either  party  to 
challenge  first  for  principal  cause ;  and  fail- 
ing to  sustain  it,  he  may  then  challenge  to 


TKIAL. 


595 


Impaneling  Jury. 


Of  Challenges  in  General. 


the  favor,  and  submit  the  same  evidence  to 
the  triers  that  had  been  given  on  the  chal- 
lenge for  principal  cause;  and  the  triers 
may,  upon  the  same  evidence,  find  the  juror 
incompetent  because  of  prejudice  or  partial- 
ity.    People  V.  Mallon,  svpra. 

59.  Where  the  prisoner's  counsel  did  not 
specify  any  ground  of  challenge,  but  the 
juror  was  examined  as  to  whether  he  had 
formed  or  expressed  an  opinion,  it  was  held 
that  that  must  be  assumed  to  be  the  ground 
of  challenge,  and  also  that  it  was  for  princi- 
pal cause,  that  being  the  most  favorable 
ground  for  the  prisoner.     lb. 

60.  Trial  of  challenge  by  court.  The 
legal  mode  of  trial  of  a  question  of  fact  on 
a  challenge  for  principal  cause,  in  the  ab- 
sence of  consent  to  a  different  mode,  is  by 
triers  appointed  by  the  court.  It  is  comije- 
tent  however,  for  the  parties  by  consent,  to 
subinit  to  the  court  the  trial  of  this  question 
of  fact.  Stout  V.  People,  4  Parker,  133. 
In  the  absence  of  objection  or  exception, 
after  the  question  has  been  determined  by 
the  court,  the  consent  of  counsel  on  both 
sides  will  be  presumed,  s.  c.  lb.  71 ; 
O'Brien  v.  People,  36  N.  Y.  276. 

61.  In  Maine,  the  court  is  the  only  tri- 
bunal which  the  statute  has  provided  for 
the  trial  of  challenges  of  jurors.  State  v. 
Knight,  43  Maine,  11. 

62.  In  New  Hampshire,  the  order  of 
challenge,  and  the  determination  of  it  is 
for  the  judge  at  the  trial ;  and  his  finding  is 
not  the  subject  of  exception.  State  v.  Pike, 
49  New  Hamp.  399. 

63.  Consent  that  court  try  challenge, 
cannot  be  revoked.  Where  on  a  trial  for 
felony,  the  prisoner  by  his  counsel,  consents 
to  substitute  the  court  for  triers,  upon  chal- 
lenges to  jurors,  such  consent  cannot  after- 
ward be  revoked.  People  v.  Rathbun,  21 
Wend.  509. 

64.  Triers,  how  sworn.  It  is  not  enough 
that  the  triers  of  a  challenge  for  favor  are 
sworn  to  find  whether  the  juror  is  indifferent 
"  upon  the  issue  joined."  They  must  also 
be  sworn  to  find  whether  the  juror  is  impar- 
tial between  the  parties.  Freeman  v.  Peo- 
ple, 4  Denio,  9. 

65.  Written  instructions  to  triers  not 


proper.  Where  a  juror  has  been  put  upon 
triers  at  the  request  of  the  prisoner,  and 
they  have  retired  to  their  room,  it  is  not 
proper  for  the  defendant's  counsel  to  move 
the  court  to  send  written  instructions  to 
the  triers  to  put  to  the  juror  a  particular 
question.     Whaley  v.  State,  11  Ga.  123. 

66.  Testimony  on  trial  of  challenge. 
Where  a  challenge  for  principal  cause  is 
tried  by  the  court,  it  must  be  upon  the 
testimony  of  the  juror  alone  on  his  xoir 
dire — if  by  triers,  then  by  other  evidence 
to  the  exclusion  of  the  oath  of  the  juror. 
Stewart  v.  State,  8  Eng.  720.  Upon  such 
trial,  the  party  may  object  to  the  admission 
of  evidence,  or  to  the  instructions  of  the 
court.    lb. 

67.  Juror  not  bound  to  criminate  him- 
self. In  examining  a  jiu-or  as  to  his  having 
formed  and  expressed  an  opinion,  he  ought 
not  to  be  required  to  criminate  himself. 
State  V.  Benton,  2  Dev.  &  Batt.  196; 
Sprouce  v.  Com.  3  Va.  Cas.  375.  Where 
the  challenge  of  a  juror  tends  to  his  infamy, 
it  must  be  supported  by  extrinsic  proof. 
Hudson  V.  State,  1  Blackf.  317. 

68.  Examination  of  witnesses.  Although 
as  a  general  rule,  after  putting  a  juror  upon 
his  voir  dire,  a  want  of  impartiality  cannot 
be  proved  by  witnesses,  yet,  where  a  cause 
of  challenge  exists  which  could  not  be 
known  to  the  juror,  it  is  otherwise.  Com. 
v.  Wade,  17  Pick.  395. 

69.  Prisoner  bound  by  his  challenge. 
Where  the  prisoner  challenges  a  juror  for 
favor,  and  the  prosecutor  admits  the  cause 
assigned  to  be  true,  the  prisoner  is  bound 
by  his  challenge,  and  cannot  afterward  have 
the  matter  tried.  State  v.  Creasman,  10 
Ired.  395. 

70.  Where  the  court  improperly  sets  aside 
a  competent  juror,  on  the  application  of  the 
prisoner,  the  latter  cannot  afterward  object 
to  it  as  error.  McAllister  v.  State,  17  Ala. 
434. 

71.  Challenge  after  previous  challenge 
overruled.  A  juror  may  be  challenged  to 
tlic  iavor,  after  a  challenge  for  princijial 
cause  has  been  tried  and  overruled.  Carnal 
V.  People,  1  Parker,  273. 

72.  Waiver  of  challenge.     Where   the 


596 


TRIAL. 


Impaneling  Jury.  Of  Challenges  in  General.      Grounds  of  Principal  Challenge. 


prisoner  waived  liis  right  to  object  to  a 
juror  against  -whom  he  had  good  cause  of 
challenge,  it  was  held  that  the  prosecution 
could  not  insist  upon  having  the  juror  ex- 
cluded under  an  agreement  that  all  should 
be  regarded  as  being  challenged  by  both 
sides.     People  v.  Mather,  4  Wend.  229. 

73.  If  the  juror  is  accepted  by  both  the 
prosecution  and  the  prisoner,  the  State's 
right  of  challenge  on  the  ground  of  a  fixed 
opinion  of  the  juror  is  lost,  and  cannot  be 
again  revived,  against  the  objection  of  the 
prisoner,  although  the  existence  of  the  cause 
of  challenge  was  unknown  when  the  juror 
was  accepted.     Stalls  v.  State,  28  Ala.  25. 

74.  If  the  court  improperly  set  aside  a 
juror  for  a  cause  of  challenge  on  the  part  of 
the  prosecution  which  has  been  lost  by  pre- 
viously accepting  him,  and  the  prisoner  ex- 
cepts, the  error  entitles  him  to  a  reversal  of 
the  judgment.     lb. 

75.  When  challenge  too  late.  After  a 
juror  is  sworn  in  the  case,  it  is  too  late  to 
challenge  him  for  any  cause  which  existed 
at  the  time  he  was  put  on  the  prisoner. 
State  V.  Morea,  2  Ala.  275 ;  Ward  v.  State, 
1  Humph.  253;  Gillespie  v.  State,  8  Yerg. 
507. 

76.  After  the  jury  were  impaneled  on  a 
trial  for  murder,  and  three  days  had  been 
spent  in  the  introduction  of  evidence,  the 
defendant  objected  to  going  on  with  the 
trial,  for  the  reason  that  several  of  the 
jurors  had,  before  the  trial  commenced, 
expressed  opinions  that  the  defendant  was 
guilty.  Held  that  the  objection  was  rightly 
overruled.  State  v.  Howard,  17  New  Hamp. 
171. 

77.  Decision  of  court.  Where  a  juror  is 
challenged  for  cause,  by  the  prosecution,  the 
court  need  not  render  an  immediate  decision, 
but  may  wait  until  the  panel  is  gone  through. 
State  V.  Overton,  6  Ired.  165. 

78.  Review  of  decision.  A  challenge 
for  principal  cause  being  a  part  of  the  record, 
a  certiorari  will  lie  to  review  it.  Ex  parte 
Vermilyea,  6  Cow.  555. 

79.  A  bill  of  exceptions  may  be  maintained 
for  refusing  triers,  or  upon  any  question 
arising  upon  a  challenge  to  jurors  in  a  case 
where  triers  may  be  demanded.     People  v. 


Rathbun,  21  Wend.  509:  State  v.   Shaw,  3 
Ired.  532;  People  v.  Bodine,  1  Denio,  281, 

80.  The  fact  that  the  prisoner  did  not  avail 
himself  of  a  peremptory  challenge  to  exclude 
a  juror  who  was  found  competent  upon  a 
challenge  for  cause,  will  not  prevent  him 
from  taking  advantage  of  an  error  com- 
mitted on  the  trial  of  the  challenge  for 
cause,  though  his  peremptory  challenges 
were  not  exhausted  when  the  jury  was 
completed.     People  v.  Bodine,  supra. 

81.  The  improper  rejection  of  a  juror  is 
not  ground  for  a  reversal  of  the  judgment, 
if  the  defendant  obtains  an  impartial  jury 
of  his  own  selection.  Henry  v.  State,  4 
Humph.  270. 

82.  Right  of  court  to  set  juror  aside 
after  he  is  sworn.  Where  after  a  juror  is 
sworn,  and  has  taken  his  seat,  he  is  dis- 
covered to  be  incompetent,  the  court  may 
set  him  aside  at  any  time  before  evidence  is 
given.     People  v.  Damon,  13  Wend.  351. 

(c)   Grounds  of  principal  challenge  to  the  polls. 

83.  That  a  juror  is  not  qualified  to 
serve.  The  non-possession  of  any  natural 
faculty  stands  in  respect  to  a  juror  in  the 
same  category  with  alienage,  or  infancy,  or 
sex,  and  must  be  taken  advantage  of  before 
verdict,  and  by  challenge.  U.  S.  v.  Baker, 
3  Benedict,  68. 

84.  On  a  trial  for  grand  larceny,  a  juror 
upon  challenge  for  principal  cause  testified 
that  he  had  been  a  farmer;  had  sold  his 
farm  the  previous  spring  and  taken  back  a 
mortgage;  that  he  could  not  tell  whether 
or  not  he  was  assessed  for  personal  projierty 
this  year;  that  he  was  not  assessed  last  year 
for  personal  property  but  was  for  real  estate. 
Held  that  the  challenge  was  properly  sus- 
tained. Armsby  v.  People,  2  N.  Y.  Supm. 
N.  S.  157. 

85.  It  is  not  a  good  ground  of  challenge 
for  cause,  that  the  juror  was  challenged 
peremptorily  by  the  prisoner  on  a  former 
trial  of  the  same  case.  State  v.  Henley,  R. 
M.  Charlt.  505. 

86.  The  objection  that  persons  returned 
by  the  sheritf  have  not  the  proper  qualifica- 
tions  of  jurors   must  be   made   before  the 


TKIAL. 


597 


Impaneling  Jury. 


Grounds  of  Principal  Challenge  to  the  Polls. 


jurors  are  placed  on  the  panel.     Com.  v. 
Gee,  6  Cusli.  174. 

87.  That  a  juror  is  of  kin  to  party. 
Where  a  juror  was  challenged  for  cause  on 
the  ground  that  his  wife  was  cousin  to  the 
prisoner's  deceased  wife,  who  left  no  chil- 
dren, it  was  held  not  a  cause  of  challenge, 
the  affinity  having  ceased  with  her  death. 
State  V.  Shaw,  3  Ired.  532. 

88.  Conscientious  scruples  of  juror.  It 
is  a  good  ground  of  challenge  that  a  juror 
has  conscientious  scruples  against  finding  a 
a  verdict  of  guilty.  U.  S.  v.  Wilson,  1  Bald. 
78;  Gross  T.  State,  3  Carter,  329;  Com.  v. 
Lesher,  17  Serg.  &  Rawle,  155;  Williams  v. 
State,  3  Kelly,  453 ;  Lewis  v.  State,  9  Sm.  & 
Marsh.  115;  People  v.  Mather,  4  Wend.  229; 
People  v.  Damon,  13  lb.  351 ;  Willis  v. 
State,  12  Ga.  444;  Wade  v.  State,  lb.  25; 
Payne  v.  State,  3  Humph.  375;  Neely  v. 
People,  13  111.  687;  State  v.  Jewell;  33  Me. 
583 ;  Walter  v.  People,  32  N.  Y.  147. 

89.  Where  the  accused  may  be  punished 
capitally  or  by  confinement  in  the  penitenti- 
ary, it  is  good  ground  of  challenge  for  cause 
by  the  prosecution  that  a  juror  has  a  fixed 
opinion  against  capital  or  penitentiary  pun- 
ishment.    Stalls  v.  State,  28  Ala.  25. 

*  90.  It  is  good  ground  of  challenge  for 
cause,  that  a  juror  is  opposed  to  capital 
punishment,  and  that  his  opinion  will  influ- 
ence his  verdict.  Martin  v.  State,  16  Ohio, 
364. 

91.  It  is  not  only  the  right,  but  the  duty 
of  the  court,  apart  from  any  statute,  on  a 
trial  for  murder,  to  permit  an  inquiry  to  be 
made  whether  persons  returned  to  serve  as 
jurors  are  opposed  to  capital  punishment. 
State  V.  Howard,  17  New  Ilamp,  171 ;  Pierce 
V.  State,  13  lb.  556. 

92.  Where  a  juror,  upon  challenge  for 
principal  cause,  testified  that  he  had  consci- 
entious scruples  in  finding  a  verdict  where 
the  penalty  was  death,  but  that  his  scruples 
would  not  prevent  him  from  finding  a  ver- 
dict of  guilty  of  murder  if  the  evidence  re- 
quired him  to  do  it,  it  was  hold  that  he  was 
properly  rejected.  O'Brien  v.  People,  48 
Barb.  274;  s.  c.  36  N.  Y.  276;  2  N.  Y. 
Trans,  of  App.  5. 

93.  A  juror  is  disqualified  where  he  is  not 


opposed  to  the  policy  of  the  law  inflicting 
capital  punishment,  but  his  scruples  consist 
in  tender  feelings  toward  the  prisoner — a 
fear  that  he  shall  do  him  wrong.     lb. 

94.  A  juror  in  a  capital  case  having  been 
challenged  for  principal  cause,  was  declared 
competent  and  sworn.  Some  time  after- 
ward, but  before  any  evidence  had  been 
given,  he  stated  to  the  court  that  he  had 
misunderstood  the  previous  question,  and 
given  a  wrong  answer,  and  desired  to  cor- 
rect himself  and  say  that  he  could  not, 
under  any  circumstances,  convict  on  a 
charge  of  murder.  The  challenge  to  him 
was  thereupon  opened,  and  having  repeated 
his  last  statement,  he  was  set  aside.  Held 
proper.    People  v.  Wilsen,  3  Parker,  199. 

95.  A  juror  testified  that  he  had  no  con- 
scientious scruples  against  finding  a  man 
guilty  of  an  offense  punishable  with  death 
where  the  proof  was  positive,  but  no  amount 
of  circumstantial  evidence  would  induce 
him  to  render  such  a  verdict.  Another 
juror  said  that  he  should  be  very  reluctant 
to  render  a  verdict  of  guilty  of  a  capital 
offense,  even  if  his  judgment  was  convinced 
of  the  prisoner's  guilt ;  that  he  would  prolj- 
ably  be  the  last  juror  to  agree  to  such  a 
verdict,  but  he  did  did  know  but  that 
he  might  be  starved  to  render  it ;  he  thought 
he  should  hang  the  jury  and  thus  defeat  a 
verdict  of  guilty.  On  challenge  for  cause, 
these  jurors  were  set  aside.  Gates  v.  Peo- 
ple, 14  111.  433. 

96.  In  Alabama,  a  juror  in  a  capital  case 
who  has  a  fixed  opinion  against  capital  pun- 
ishment may  be  challenged  for  cause  by  the 
prosecution  (Penal  Code,  §  630),  or  be  set 
aside  by  the  court,  although  he  also  states 
in  answer  to  questions  by  the  prisoner,  "  that 
if  he  were  on  the  jury  and  the  law  required 
him  to  convict,  he  would  do  so."  Waller  v. 
State,  40  Ala.  325. 

97.  On  a  trial  f®r  counterfeiting,  the 
prosecution  may  ask  a  person  presented  as  a 
juror  whether  he  has  taken  an  oath  to  ac- 
quit all  counterfeiters.  He  may,  however, 
decline  to  answer.  Fletcher  v.  State,  6 
Humph.  240. 

98.  Juror  competent  although  opposed 
to  capital  punishment.     A  juror  who  is 


598 


TKIAL. 


Impaneling  Jury. 


Grounds  of  Principal  Challenge  to  the  Polls. 


ojiposed  to  capital  punishment  is  competent, 
it"  he  believe  he  can  give  a  verdict  according 
to  the  evidence.  Com.  v.  Webster, 5  Cush.295. 

99.  Where  on  a  trial  for  murder,  a  juror 
upon  being  challenged  by  the  prosecution, 
testified  that  he  was  opposed  to  the  punish- 
ment of  death,  but  that  he  should,  if  sworn 
as  a  juror,  and  the  evidence  of  guilt  was 
clear,  find  the  accused  guilty,  it  was  held 
that  he  was  competent.  People  v.  Wilson, 
3  Parker,  199. 

100.  On  a  trial  for  murder,  a  jm-or  was 
asked  if  he  entertained  such  conscientious 
opinious  where  the  ofi'ense  charged  was  pun- 
ishable with  death,  as  would  preclude  him 
from  finding  the  defendant  guilty;  to  which 
he  replied,  that  he  was  ojoposed  to  capital 
punishment  on  principle.  A  challenge  for 
cause  by  the  prosecution  was  sustained. 
Held  error.     People  v.  Stewart,  7  Cal.  140. 

101.  On  a  trial  for  murder,  the  court 
ruled  that  if  a  juror  upon  being  interro- 
gated, answered  merely  that  "  he  was  op- 
posed to  capital  punishment,"  he  was  in- 
competent to  sit.  Held  error.  Atkins  v. 
State,  16  Ark.  568. 

102.  Prejudice  of  juror  against  a  cer- 
tain class.  On  the  trial  of  citizens  of 
^Mexico  for  an  assault  with  intent  to  murder, 
it  was  held  error  in  the  court  to  rule  out 
the  following  questions  put  to  a  juror:  1. 
Are  you  not  a  member  of  a  secret  and  mys- 
terious order  known  as,  and  called  Kuow- 
Xothings,  which  has  imposed  on  you  an 
oath  or  obligation,  beside  which  an  oath 
administered  to  you  in  a  court  of  justice,  if 
in  conflict  with  that  oath  or  obligation, 
would  be  by  you  disregarded  ?  2,  Are  you 
a  member  of  any  secret  association,  political 
or  otherwise,  by  your  oaths  or  obligations 
to  which,  any  prejudice  exists  in  your  mind 
against  Catholic  foreigners  ?  3.  Do  you 
belong  to  any  secret  political  society  known 
as,  and  called  by  the  people  at  large  in  the 
United  States,  Know-Nothings;  and  if  so, 
are  you  bound  by  an  oath  or  other  obliga- 
tion, not  to  give  a  prisoner  of  foreign  birth, 
in  a  court  of  justice,  a  fair  and  impartial 
trial  ?  4.  Have  you  at  any  time  taken  an 
oath,  or  other  obligation  of  such  a  charac- 
ter, that  it  has  caused  a  prejudice  in  your 


mind  against  foreigners  ?  5.  Are  you  under 
any  obligations  not  to  extend  the  same 
rights,  protection,  and  support  to  men  of 
foreign  birth  as  to  native  born  American 
citizens  ?  6.  Have  you  any  prejudice  what- 
ever against  foreigners  ?  People  v.  Reyes, 
5  Cal.  347. 

103.  A  person  who  states  that  he  would 
convict  a  colored  man  on  less  evidence  than 
he  would  a  white  man  for  the  same  oflfense, 
is  incompetent  to  sit  as  a  juror  on  the  trial 
of  an  indictment  against  a  colored  man. 
Milan  v.  State,  24  Ark.  346. 

104.  Opinion  of  juror  that  law  is  uncon- 
stitutional. A  juror  is  incomjietent  to  sit 
who  states  that  he  has  formed  such  an 
opinion  of  the  unconstitutionality  of  the 
statute  on  which  the  prosecution  is  founded, 
that  he  could  not  find  a  verdict  of  guilty,, 
whatever  might  be  the  evidence.  Cora.  v. 
Austin,  7  Gray,  51. 

105.  Opinion  of  juror  as  to  guilt  or 
innocence  of  prisoner.  Where  a  juror  has 
expressed  an  opinion  against  the  prisoner, 
from  his  knowledge  of  the  case,  and  not 
from  any  favor  or  ill  will,  it  is  a  principal 
cause  of  challenge;  and  the  same  is  true 
when  the  opinion  is  founded  on  the  infor- 
mation of  others.  Ex  2Mrte  Vermilyea,  6 
Cow.  555;  People  v.  Rathbun,  21  Wend. 
509 ;  Sprouce  v.  Com,  2  Va.  Cas.  375  ;  Lit- 
tlejohn  V.  Com.  lb.  297;  Freeman  v.  Peo- 
ple, 4  Denio,  9 ;  Ned  v.  State,  7  Porter,  187 ; 
Quesenberry  v.  State,  3  Stew.  &  Port.  308 ; 
People  V.  Alather,  4  Wend.  229 ;  U.  S.  v. 
Wilson,  1  Bald.  78.  In  New  Jersey,  it  has 
been  held  that  a  juror  who  has  formed  and 
expressed  an  opinion  of  the  guilt  of  the 
prisoner,  founded  on  his  knowledge  of  the 
facts  or  upon  information  supposed  to  be 
true,  is  not  thereby  disqualified.  State  v. 
Fox,  1  Dutch.  566. 

106-  On  the  trial  of  a  challenge,  the  pris- 
oner's counsel  put  this  question:  "If  the 
defense  in  this  case  should  be  the  insanity 
of  the  defendant,  have  you  formed  or  ex- 
pressed an  opinion  on  the  subject  ?  "  Held 
improper;  the  investigation  being  confined 
to  the  general  question  of  opinion  as  to  the 
guilt  or  innocence  of  the  prisoner.  State  v. 
Arnold,  12  Iowa,  479. 


TRIAL. 


590 


Impaneling  Jury. 


Grounds  of  Principal  Challenge  to  the  Polls. 


107.  Where  upon  a  trial  for  murder,  it 
appeared  that  the  mind  of  a  juror  on  his 
being  challenged  for  principal  cause,  was 
preoccupied  with  an  opinion  upon  the  issues 
to  be  tried,  which  it  would  require  evidence 
to  remove,  it  was  held  that  he  was  incom- 
petent.    Cancemi  v.  People,  16  N.  Y.  501. 

108.  It  is  not  a  good  cause  for  principal 
challenge  on  the  trial  of  an  indictment  for 
murder,  that  a  juror  had  formed  an  opinion 
that  the  prisoner  killed  the  deceased; 
as  he  might  have  killed  him  and  still  not 
have  committed  any  crime.  Lowenberg  v. 
People,  37  K  Y.  336;  5  Parker,  414.  And 
in  the  same  case  on  a  challenge  for  favor, 
the  court  refused  to  charge  the  triers  that 
they  should  find  the  challenge  true,  if  they 
found  that  the  juror  believed  that  the  per- 
son alleged  to  have  been  murdered  was 
killed  by  some  one.  In  Tennessee,  on  a 
trial  for  murder,  jurors  stated  that  from 
rumors  and  reports  in  their  neighborhood 
they  had  heard  that  a  man  had  been  killed, 
that  the  prisoner  was  accused  of  the  murder, 
and  had  attempted  to  make  his  escape,  and 
that  upon  the  facts  and  circumstances,  they 
had  formed  and  expressed  an  opinion. 
Held  that  they  were  competent.  Payne  v. 
State,  3  Humph.  375. 

109.  The  statute  of  New  York  (Laws  of 
1872,  ch.  475),  which  provides  that  an 
opinion  as  to  the  guilt  or  innocence  of  the 
accused  shall  Dot  be  ground  of  challenge 
for  principal  cause  if  the  juror  declare  on 
oath  that  he  can  render  an  impartial  ver- 
dict, and  the  court  is  satisfied  that  he  has 
not  such  a  present  opinion  as  would  influ- 
ence his  verdict,  is  constitutional.  Stokes 
V.  People,  53  N.  Y.  164. 

110.  The  fact  that  a  juror  has  expressed 
an  opinion  respecting  the  case  before  he 
was  summoned,  is  not  necessarily  a  ground 
of  principal  challenge.  But  if  the  evidence 
shows  also  malice,  ill-will,  interest,  or  a 
fixed  opinion,  that  raises  a  legal  presump- 
tion against  the  indifference  of  the  juror. 
State  V.  Howard,  17  New  Hamp.  171.  In 
New  Jersey,  it  was  held  not  cause  of  prin- 
cipal challenge  to  a  juror,  that  he  had 
formed  an  opinion  relative  to  the  matter 
to  be  tried,  if  it  was  not  done  through  ill- 


will  or  malice.     State  v.   Spencer,  1  Zabr. 
196. 

111.  Opinion  to  exclude,  must  be  ab- 
solute. To  disqualify  a  juror  upon  chal- 
lenge for  principal  cause,  on  the  ground 
that  he  has  formed  and  expressed  an  opinion, 
his  mind  must  be  at  rest  as  to  the  prisoner's 
guilt,  or  the  question  to  be  tried.  The 
opinion  must  be  fixed  and  unconditional, 
one  that  has  been  deliberately  formed,  and 
is  still  entertained,  and  which  in  an  undue 
measure,  shuts  out  a  diflerent  belief  State 
V.  Kingsbury,  58  Me.  238 ;  Staup  v.  Com.  74 
Penn.  St.  458  ;  O'Mara  v.  Com.  75  lb.  424. 
Upon  a  challenge  for  favor,  to  be  determined 
by  triers,  the  rule  is  different.  The  triers 
may  find  the  existence  of  bias,  although 
there  is  no  direct  proof  that  the  juror  has 
formed  or  expressed  such  an  opinion  as 
necessarily  constitutes  a  legal  disqualifica- 
tion.   People  V.  Stout,  4  Parker,  71 ;   lb.  132. 

112.  Upon  a  trial  for  murder,  a  juror,  upon 
being  challenged  for  principal  cause,  testified 
that  he  thought  he  had  an  impression  ;  he 
rather  thought  he  had  formed  an  opinion : 
hepresumed  he  had  expressed  it,  and  thought 
he  retained  it;  that  he  had  formed  an  opin- 
ion, if  the  newspaper  accounts  of  the  trans- 
action (of  which  he  had  read  only  a  part) 
were  true ;  that  he  rather  thought  they  were 
true,  and  that  so  far  as  he  read,  he  gave 
them  credence,  but  did  not  arrive  at  a 
definite  opinion.  Held  that  he  was  com- 
petent,    lb. 

113.  Upon  a  challenge  for  principal  cause 
on  a  trial  for  murder,  the  juror  said  he  had 
read  an  article  in  a  newspaper  concerning 
the  homicide,  and  that  although  he  had  an 
impression  that  a  homicide  was  committed, 
he  had  none  as  to  the  guilt  or  innocence  of 
the  prisoner.  The  challenge  being  overruled 
and  the  juror  challenged  for  favor,  he  again 
testified  that  he  had  read  the  statement  in 
the  newspaper  wilhout  any  impression  re- 
maining on  his  mind  as  to  the  guilt  or  in- 
nocence of  the  prisoner,  and  that  "  it  would 
require  evidence  either  the  one  way  or  the 
other  to  make  him  convinced  of  the  prisoner's 
guilt  or  innocence."  The  judge  declined  to 
charge  that  the  challenge  was  well  taken, 
and  the  triers  found  the  juror  competent. 


000 


TRIAL. 


Impaneling  Jury. 


Grounds  of  Principal  Challenge. 


Challenge  for  Favor. 


Held  that  there  was  no  error.  O'Brien  v. 
People,  48  Barb.  274 ;  affi'd  36  N.  Y.  276 ; 
3  X.  Y.  Trans,  of  App.  5. 

114.  "Where  on  a  trial  for  murder,  a  juror 
upon  being  challenged  for  cause,  said  that 
he  had  formed  an  opinion,  which  it  would 
require  some  evidence  or  explanation  to  re- 
move, that  the  piisoner  killed  the  deceased, 
that  such  opinion  had  been  formed  from 
rumor  and  newspaper  accounts,  and  that  he 
believed  that  he  could  sit  and  decide  the  case 
with  the  same  impartiality  as  if  he  had  never 
heard  of  the  case,  it  was  held  that  he  was 
competent.     State  v.  Lawrence,  38  Iowa,  51. 

115.  On  a  trial  for  murder,  a  juror  stated 
that  he  had  heard  as  rumor  what  purported 
to  be  the  facts  in  the  case,  but  not  from  a 
witness,  nor  from  a  person  professing  to 
have  knowledge  of  such  facts,  and  from 
what  he  had  heard  had  "foiToed  an  opinion 
as  t©  the  guilt  or  innocence  of  the  accused;  " 
that  he  had  no  reason  to  doubt  what  he  had 
heard,  and  at  the  time  believed  it ;  and  if 
the  facts  turned  out  the  same  as  he  had  heard 
them,  his  "  opinion  was  formed."  Held  that 
the  juror  was  not  disqualified.  People  v. 
Williams,  17  Cal.  142. 

116.  Where  upon  a  trial  for  murder,  a 
juror  upon  being  challenged  for  principal 
cause,  testified  that  he  had  read  about  the 
homicide  in  a  newspaper,  and  had  formed  an 
opinion  as  to  the  guilt  or  innocence  of  the 
accused,  which  had  not  been  changed,  and 
for  the  removal  of  which  evidence  would 
be  required ;  and  that,  from  the  facts  he 
had  heard,  he  could  not  sit  exactly  indiffer- 
ent. Upon  cross-examination,  he  testified 
that  if  he  was  on  the  jury,  he  would  try  to 
be  governed  by  the  evidence,  but  would  have 
a  little  prejudice ;  that  he  read  the  evidence 
at  the  time  in  the  newspapers,  and  assuming 
the  statements  to  be  true,  he  had  formed  an 
opinion,  but  that  the. opinion  thus  formed, 
would  not  affect  his  mind  in  determing  the 
case  on  the  evidence.  Held  that  the  juror 
was  incompetent.  People  v.  Mallon,  8  Lans. 
224. 

117.  Opinion  which  is  not  relative  to 
the  issue.  Where  a  juror,  without  forming 
or  expressing  any  opinion  as  to  the  issue, 
had  formed  an  opinion  that  the  laws  had 


been  outraged,  it  was  held  that  he  was  com- 
petent.    Brinton's  Case,  2  Wallace,  Jr..  149. 

118.  Where  a  juror  upon  being  interrogat- 
ed, stated  that  he  was  not  satisfied  that  he 
was  perfectly  impartial;  that  he  had  par- 
tiality in  his  mind  ;  that  he  did  not  person- 
ally know  the  prisoner  or  the  facts  of  the 
case,  and  had  no  prejudice  against  him  as  an 
individual,  but  that  he  was  prejudiced  in  all 
such  cases,  because  of  the  offense;  it  was 
held  that  he  was  competent  to  sit.  Parker 
V.  State,  34  Ga.  262. 

119.  On  the  trial  of  an  indictment  for  a 
nuisance  in  maintaining  a  dam,  a  juror  upon 
being  challenged,* stated  that  he  had  formed 
and  had  an  opinion,  that  mill  dams  generally 
in  that  part  of  the  country  were  nuisances, 
but  that  he  was  not  much  acquainted  with 
the  dam  in  question,  and  had  not  formed  or 
expressed  any  opinion  regarding  it.  Held 
that  the  juror  was  not  competent.  Crippen 
V.  People,  8  Mich.  117. 

120.  Juror  member  of  grand  jury.  It 
is  a  good  challenge  for  cause  that  the  juror 
was  one  of  the  grand  jury  by  whom  the  in- 
dictment was  found,  and  if  the  challenge  is 
disallowed,  and  the  defendant  excepts,  and 
then  challenges  him  peremptorily,  the  de- 
fendant is  entitled  to  the  benefit  of  his  ex- 
ception although  his  peremptory  challenges 
be  not  exhausted  before  the  jury  is  com- 
pleted.    Birdsong  v.  State,  47  Ala.  68. 

121.  Juror  sworn  on  previous  trial. 
Where  there  are  separate  trials  on  a  joint  in- 
dictment, it  is  not  a  ground  of  challenge 
that  a  juror  was  sworn  on  the  first  trial, 
M'hich  terminated  in  a  verdict  of  guilty, 
though  it  is  sufficient  ground  to  submit  his 
indifference  to  triers.  U.  S.  v.  Wilson,  1 
Bald.  78. 

122.  Juror  witness  on  former  trial.  It 
is  not  a  cause  of  challenge,  that  a  juror  was 
called  as  a  witness  for  the  prosecution,  on  a 
former  trial  of  the  same  indictment,  to  testify 
against  the  character  of  the  prisoner.  Fel- 
low's Case,  5  Maine,  333. 

{d)    Grounds  of  clinllenge  to  the  polls  for  favor. 

123.  Unsettled  opinion.  A  settled  opin- 
ion of  the  guilt  or  innocence  of  the  accused 
need  not  be  shown  where  the  challenge  is 


TRIAL. 


COl 


Impaneling  Jury. 


Grounds  of  Challenge  to  the  Polls  for  Favor. 


for  favor.  People  v.  Bodine,  1  Denio,  281. 
If  the  juror  lias  an  opinion  which  it  will  re- 
quire testimony  to  remove,  he  is  disqualified, 
although  the  opinion  be  founded  on  rumor 
alone.  People  v.  Mather,  4  Wend.  229; 
Reynolds  v.  State,  1  Kelly,  232;  Boon  v. 
State,  lb.  631 ;  contra,  Moses  v.  State,  11 
Humph.  233;  Nelms  v.  State,  13  Sm.  & 
Marsh.  500  ;  Sam  v.  State,  lb.  89.  But  not 
■where  the  juror's  mind  is  free  to  act  upon 
the  testimony.  King  v.  State,  5  How.  Miss. 
730;  State  V.  Ellington,  7  Ired.  61;  Smith 
V.  Com.  7  Gratt.  593;  People  v.  Bodine, 
supra  ;  commented  on  and  explained,  Peo- 
ple V.  Honeyman,  3  Denio;  121. 

124.  Where  it  appeared  on  a  trial  for 
treason  that  a  juror  had  formed  but  not  ex- 
pressed an  opinion  as  to  the  nature  of  the 
offense,  but  not  as  to  the  guilt  of  the  pris- 
oner, the  court  thought  he  had  better  be 
withdrawn.  Smith's  Case,  2  Wallace,  Jr., 
150;  Walsh's  Case,  lb.  143.  But  see  Lyon's 
Case,  lb.  149  ;  Reynold's  Case,  lb.  145. 

125.  A  merely  hypothetical  opinion  is  not 
cause  for  principal  challenge,  but  of  chal- 
lenge to  the  favor.  State  v.  Benton,  2  Dev. 
«fc  Batt.  196  ;  Freeman  v.  People,  4  Denio,  9. 

126.  Where  on  a  trial  for  burglary,  a  juror 
stated  that  he  had  no  bias  or  prejudice,  and 
could  give  the  defendants  a  fair  trial  ac- 
cording to  the  law  and  the  evidence  ;  that 
he  believed  the  statements  in  the  newspapers 
that  there  had  been  a  housebreaking,  and  if 
the  prisoners  were  the  persons  named  in  the 
newspapers  he  had  an  opinion  of  their  guilt 
or  innocence,  it  was  held  that  he  was  in- 
competent to  sit.  Gray  v.  People,  26  111. 
344. 

127.  Opinion  founded  on  report.  It  is 
not  a  sufficient  objection  to  a  juror  that  he 
has  heard  about  the  case,  if  he  has  formed 
no  opinion,  and  is  sensible  of  no  bias.  State 
V.  Howard,  17  Xew  Plamp.  171. 

128.  Where  a  juror  before  a  trial  for  mur- 
der was  talking  about  the  circumstances  of 
the  homicide,  and  in  reply  to  the  remark  of 
a  person  replied  that  "  if  that  were  so  the 
prisoner  ought  to  he  hung,"  it  was  held  that 
he  was  not  incompetent.  Mercer  v.  State, 
17  Ga.  146. 

129.  Hostility   or   prejudice   cannot  as  a 


rule  be  inferred  from  an  opinion  formed  and 
expressed  simply  from  reading  or  hearing 
stated  as  current  news  of  the  day  the  fact  of 
a  homicide  and  the  circumstances  attending 
it.  There  should  be  found  some  other  cir- 
cumstances acting  at  the  same  time  upon 
the  mind,  and  giving  it  a  bias,  or  the  juror 
should  be  accepted.  State  v.  Wilson,  38 
Conn.  126. 

130.  A  juror  in  a  capital  case  is  not  dis- 
qualified who  states  that  he  has  a  faint 
recollection  of  hearing  of  the  occurrence 
through  the  newspapers,  which  left  no 
particular  impression  on  his  mind  as  to  the 
guilt  of  the  person  named,  except  as  a  news- 
paper statement;  that  he  believed  a  homi- 
cide had  been  committed,  and  by  the  person 
named.     O'Brien  v.  People,  36  N.  Y.  276. 

131.  A  juror,  upon  being  challenged  for 
favor,  said  that  "  he  had  read  part  of  the 
statements  in  the  papers  at  the  time  of  the 
homicide,  and  had  formed  a  preconcived 
idea  in  regard  to  the  prisoner's  guilt  or  inno- 
cence, but  had  no  bias  one  way  or  the  other ; 
that  his  preconceived  idea  or  impression 
would  in  no  way  influence  his  verdict,  but 
he  Avould  be  governed  entirely  by  the  evi- 
dence produced  on  the  stand."  Held  that 
the  juror  wac  competent.  Sanchez  v.  Peo- 
ple, 4  Parker,  535;  22  N.  Y.  147. 

132.  A  juror  testified  that  he  had  formed 
and  expressed  an  opinion  as  to  the  defend- 
ant's guilt  from  report,  but  that  he  had 
heard  no  witness  speak  of  the  transaction  ; 
that  he  lived  18  miles  from  the  defendant, 
and  had  not  been  in  the  defendant's  neigh- 
borhood since  the  occurrence.  Held  that 
there  was  no  ground  of  challenge.  Mc- 
Gregg  V.  State,  4  Blackf.  101. 

133.  Opinion  of  prisoner's  character. 
The  mere  statement  of  a  juror  that  he  has 
formed  an  opinion  that  the  general  character 
of  the  prisoner  is  bad,  does  not  jier  se  dis- 
qualify him.  People  v.  Allen,  43  N.  Y.  28  ; 
57  Barb.  338. 

134.  Opinion  derived  from  proceedings 
in  court.  Where  on  the  challenge  of  a  juror 
to  the  favor,  the  court  ruled  that  an  impres- 
sion of  the  guilt  of  the  prisoner  which  the 
juror  had  formed  from  the  proceedings  in 
court  was  not  a  subject  of  inquiry,  it  w^as 


002 


TRIAL. 


Impaneling  Jury. 


Challenge  to  the  Polls  for  Favor.       Peremptory  Challenge. 


held  error.     Thompson  v.  People,  3  Parker, 
4G7.  I 

135.  A  juror  who  had  heard  the  testi- 
mony, and  then  formed  an  opinion  upon  it, 
and  did  not  know  whether  he  had  expressed 
the  opinion  or  not,  hut  thought  it  most 
2>robable  that  he  had  done  so,  but  who 
stated  that  at  that  time  he  had  no  prejudice 
against  the  prisoner,  and  believed  he  could 
give  him  as  fair  a  trial  as  if  he  had  not 
heard  anything  on  the  subject,  was  held 
competent.  Pollard  v.  Com.  5  Rand.  659. 
And  see  Brown's  Case,  2  Leigh,  769 ;  State 
V.  Dorr,  10  Ired.  469 ;  Baldwin  v.  State,  12 
Mo.  223  ;  Moran's  Case,  9  Leigh,  651  ;  State 
V.  Potter,  18  Conn.  166  ;  Smith  v.  Com.  6 
Gratt.  696  ;  Trimble  v.  State,  2  Greene,  404. 

136.  Statement  of  juror  that  he  can  de- 
cide impartially,  notwithstanding  a  fixed 
opinion.  A  juror  is  incompetent  to  sit  who 
states  that  he  has  formed  and  expressed  an 
opinion  which  it  will  take  direct  evidence 
to  remove,  although  he  further  says  he 
thinks  he  can  do  justice  between  the  State 
and  the  prisoner,  and  that  the  opinion  he 
has  formed  will  not  influence  his  mind  as  a 
juror.     State  v.  Bunger,  11  La.  An.  607. 

137.  Where  on  a  trial  for  murder,  a  juror 
stated  that  he  had  formed  an  opinion  as  to 
the  commission  of  the  offense  and  as  to  the 
guilt  or  innocence  of  the  prisoner,  but  had 
coniidence  in  his  ability  to  decide  the  case 
impartially,  it  was  held  that  he  was  incom- 
petent.    Fouts  V.  State,  7  Ohio,  N.  S.  471. 

138.  Where  a  person  was  present  at  the 
scene  soon  after  a  murder,  and  formed  an 
opinion  of  the  prisoner's  guilt  from  informa- 
tion derived  from  persons  who  assumed  to 
have  knowledge  of  the  facts  attending  the 
homicide,  it  was  held  that  he  was  incompe- 
tent to  serve  as  a  juror,  and  that  his  statement 
that  he  had  no  opinion,  was  not  of  itself 
sufficient  to  remove  the  objection  to  his 
competency.     Norfleet  v.  State,  4  Sneed,  340. 

139.  On  a  trial  for  grand  larceny,  a  juror  on 
his  direct  examination  said :  "I  have  formed 
a  fixed  decided  opinion  in  regard  to  the  guilt 
or  innocence  of  the  defendant.  My  opinion 
is  such  that  I  would  be  willing  to  act  upon 
it  in  the  ordinary  affairs  of  life.  I  have 
reached  a  conclusion  or  conviction  such  as  I 


would  be  willing  to  act  upon  in  my  business 
transactions.  I  believe  what  I  heard.  I 
heard  what  purported  to  be  the  facts  of  the 
case.  I  believe  what  I  heard  now.  It  will 
require  evidence  to  remove  the  opinion  now 
existing  in  my  mind."  On  cross-examin- 
ation he  said:  "My  opinion  is  not  an  un- 
qualified one.  I  could  try  the  case  and  ren- 
der a  verdict  according  to  the  evidence,  not- 
withstanding any  opinion  previously  formed 
by  me  in  regard  to  the  case."  Held  that  the 
juror  was  not  competent.  People  v.  Weil, 
40  Cal.  268. 

{e)  Peremptory  challenge. 

140.  When  to  be  made.  The  right  of  the 
prisoner  to  challenge  a  juror  peremptorily, 
remains  until  the  jm-or  is  sworn.  Morris  v. 
State,  7  Blackf.  607;  Lindsley  v.  People,  6 
Parker,  233. 

141.  It  is  error  in  the  court  to  compel  the 
prisoner  to  exhaust  his  peremptory  chal- 
lenges before  challenging  for  cause.  State 
V.  Fuller,  39  Vt.  74. 

142.  Questions  upon.  A  juror  may  be 
asked  by  the  defense  whether  he  has  formed 
an  opinion,  in  order  to  determine  as  to  a 
peremptoiy  challenge.  State  v.  Godfrey, 
Brayt.  170. 

143.  Jurors  were  challenged  for  principal 
cause  first,  and  then  for  favor  upon  the 
ground  that  they  had  formed  or  expressed 
an  opinion,  and  upon  the  trier's  finding 
against  the  challenges,  they  were  challenged 
peremptorily  by  the  prisoner.  Held  that  the 
questions  raised  previous  to  the  peremptory 
challenges  were  not  open  for  examination  at 
the  instance  of  the  prisoner.  Friery  v.  Peo- 
ple, 54  Barb.  319;  affi'd  2  N.  Y.  Ct.  of  Ap- 
peals Decis.  215. 

144.  Efi'ect  of  peremptory  challenge. 
A  party  who  challenges  a  juror  peremptorily 
when  he  is  not  obliged  to  do  so,  waives  his 
exception.     Stewart  v.  State,  8  Eng.  720. 

145.  But  if  the  court  err  in  overruling  the 
prisoner's  challenge  to  a  juror  for  favor,  and 
then  the  prisoner  peremptorily  challenges  the 
juror,  the  error  ^of  the  court  is  not  cured, 
although  the  prisoner  had  not  exhausted  his 
peremptory  challenges  when  the  jury  was 
completed.     Dowdy  v.  Com.  9  Gratt.  727. 


TRIAL. 


G03 


Impaneling  Jury. 


Peremptory  Challenge. 


Completion  of  Jury. 


146.  In  Tennessee  however,  where  incom- 
petent jurors  were  admitted  by  the  court, 
and  peremptorily  challenged  by  the  prisoner, 
it  was  held  that  this  was  no  ground  of  re- 
versal, the  jury  being  completed  before  he 
had  exhausted,  his  challenges.  Carroll  v. 
State,  3  Humph.  315. 

147.  And  in  New  York  it  has  been  held 
that,  where  on  the  trial  of  a  challenge  to 
the  favor,  improper  evidence  is  admitted,  and 
the  triers  find  the  juror  indifferent,  and  he  is 
then  challenged  peremptorily,  and  it  appears 
the  prisoner  had  not  exhausted  all  his  per- 
emptoiy  challenges  when  the  jury  was  com- 
pleted,the  prisoner  canuotafterward object  to 
the  admission  of  such  incompetent  evidence. 
People  V.  Knickerbocker,  1  Parker,  302. 

148.  Waiver  of  peremptory  challenge. 
B.  having  been  called  as  a  juror  and  exam- 
ined as  to  his  bias,  and  no  reason  to  except 
to  him  on  that  account  appeai'ing,  the  coun- 
sel for  the  prisoner  were  told  by  the  court 
that  they  could  then  challenge  B.  peremp- 
torily if  they  wished.  They  declined  to  do 
so,  however,  and  B.  was  directed  to  take  his 
seat  as  one  of  the  jurors.  After  the  panel 
was  full,  the  peremptory  challenges  not  hav- 
ing been  exhausted,  the  prisoner's  counsel 
claimed  the  privilege  to  challenge  B.  per- 
emptorily. Held  that  in  the  absence  of  any 
reason  for  a  peremptory  challenge  then, 
which  did  not  exist  before,  it  was  too  late. 
State  v.  Potter,  18  Conn.  1G6. 

149.  Where  after  the  prisoner's  challenge 
of  a  juror  had  been  overruled,  the  court 
informed  the  prisoner  that  the  juror  should 
stand  aside  and  not  sit  in  the  case  if  he 
desired  it,  and  that  what  had  occurred 
should  not  diminish  his  number  of  per- 
emptory challenges,  and  the  prisoner  stood 
mute,  though  told  by  the  court  that  it 
would  regard  his  silence  as  a  consent  on  his 
part  to  the  sitting  of  the  juror,  it  was  held 
that  whatever  irregularity  or  error  had  been 
committed  in  permitting  the  juror  to  sit  in 
the  case  was  cured.  Gardiner  v.  People,  6 
Parker,  ISj. 

if)    Completion  of  jury. 

150.  Number  of  jurors  required  in  case 
of  felony.     Upon  an  indictment  for  felony, 


it  is  not  competent  for  the  prisoner  by 
waiver  or  stipulation  to  authorize  his  trial 
by  a  jury  of  a  less  number  than  twelve. 
State  V.  Mansfield,  41  Mo.  470.  Where 
therefore,  on  a  trial  for  murder,  the  fact  that 
one  of  the  jurors  was  an  alien  was  not 
known  to  the  prisoner  or  his  counsel  until 
after  the  verdict,  it  was  held  that  he  was 
entitled  to  a  new  trial.  Hill  v.  People,  16 
Mich.  351. 

151.  Upon  a  conviction  for  murder,  the 
postea  embraced  in  the  formal  record  of 
judgment,  and  the  bill  of  exceptions  showed 
that  the  trial  was  had  by  twelve  jurors. 
The  return  to  the  writ  of  error  included  a 
certificate  of  the  judge  before  whom  the 
indictment  was  tried,  stating  that  after  the 
jury  were  sworn,  one  of  the  jurors  was 
withdrawn  by  consent,  and  the  trial  pro- 
ceeded with  eleven  jurors.  An  order  of  the 
court  at  special  term  recited  the  aforesaid 
certificate,  and  stated  that  the  general  term  or- 
dered that  the  fact  so  certified  should  appear 
as  a  reason  for  a  motion  in  arrest  of  judg- 
ment made  by  the  prisoner,  and  directed 
the  certificate  and  reason  for  arrest  of  judg- 
ment founded  thereon  to  be  annexed  to  the 
record.  Held  that  the  conviction  of  the 
prisoner  by  eleven  jurors  was  illegal.  Can- 
cemi  V.  People,  18  N.  Y.  128. 

152.  Less  number  than  twelve  jurors, 
when  permitted.  On  a  trial  for  a  misde- 
meanor, where  the  punishment  is  a  fine,  an 
agreement  by  the  defendant  to  be  tried  by  a 
less  number  than  twelve  jurors  is  valid. 
Murphy  v.  Com,  1  Mete.  Ky.  365 ;  Tyra  v. 
Com.  2  lb.  1. 

153.  When  on  a  trial  for  a  misdemeanor, 
a  juror  is  necessarily  withdrawn  by  the 
consent  of  the  counsel  on  both  sides,  and 
the  trial  proceeds  with  eleven  jurors,  a  ver- 
dict of  guilty  will  not  be  set  aside  on  that 
ground.     Com.  v,  Dailey,  12  Cush.  80. 

154.  But  where  on  a  prosecution  for  mali- 
cious trespass,  the  defendant's  attorney  con- 
sented to  a  trial  by  a  jury  of  eleven,  and  the 
defendant  though  present  was  not  consulted 
and  did  not  know  that  he  could  object  to 
the  act  of  his  attorney,  it  was  held  that  the 
defendant  was  not  bound  by  the  consent. 
Brown  v.  State,  16  Ind.  496. 


604 


TKIAL. 


Impaneling  Jury.        Completion  of  Jury. 


Initiatory  Proceedings  in  the  Case. 


155.  So  likewise,  where  tlie  record  showed 
that  the  defendant  was  tried  for  assault  and 
battery  by  a  jury  of  six  men,  and  it  did  not 
also  appear  that  be  consented  thereto,  it 
was  held  ground  for  reversal.  State  v. 
Van  Matre,  49  Mo.  2G8. 

3.  Initiatory  proceedings  in  the  case. 

156.  Swearing  jury.  The  court  has  the 
power  before  the  jurors  are  sworn,  to  dis- 
charge one  of  their  number  upon  his  refusal 
to  take  the  oath;  but  not  to  recall  him 
afterward.  Isaac  v.  State,  3  Head,  458. 
The  jury  should  be  sworn  for  the  trial  of 
each  particular  case,  and  not  the  whole 
panel  be  sworn  to  try  all  the  causes  for  the 
term.  Barney  y.  People,  33  111.  160 ;  contra, 
People  V.  Albany  Common  Pleas,  G  Wend. 
550. 

157.  In  Arkansas,  where  issue  is  joined 
on  two  or  more  counts,  it  has  been  held 
error  to  impanel  and  swear  the  jury  to  try 
the  issue  to  a  single  count.  Adams  v.  State, 
6  Eug.  466.  But  in  Maryland,  although  a 
prisoner  has  pleaded  generally  to  an  indict- 
ment containing  two  counts,  yet  the  jury 
may  be  sworn  and  charged  as  to  one  of  the 
counts  only.  Burk  v.  State,  3  Har.  &  Johns. 
436. 

158.  Form  of  oath  to  jury.  In  Arkansas, 
it  has  been  held  that  the  jury  should  be 
sworn  to  try  the  case  according  to  the  law 
as  well  as  the  evidence.  Patterson  v.  State 
2  Eng.  60 ;  Sandford  v.  State,  6  Ilx  328.  In 
Alabama,  they  are  sworn  a  true  verdict  to 
render  according  to  the  evidence.  State  v. 
Jones,  5  Ala.  666.  In  Iowa,  where  they 
were  sworn  ' '  the  truth  to  speak  on  the  issue 
joined,"  it  was  held  insufficient.     Warren  v. 

State,  1  Greene,  106 ;    Harriman  v.  State,  3 
lb.  270. 

159.  Reswearing  of  jury  by  consent 
of  parties.  Where  on  the  trial  of  an  indict- 
ment for  a  felony  after  the  impaneling  of  the 
jury,  the  prisoner  stated  that  he  desired  to 
make  a  motion  to  quash  the  indictment,  and 
the  judge  said  that  if  all  parties  would  con- 
sent that  what  had  been  done  should  be 
treated  as  null,  he  would  entertain  the 
motion,  and  if  it  should  be  overruled  the 
jury  would  be  sworn  over  again,  and  the 


required  consent  being  given,  the  motion 
was  heard  and  overruled,  the  court  ad- 
journed, and  the  prisoner  tried  and  con- 
victed at  a  subsequent  term,  it  was  held  that 
he  had  no  cause  of  exception  on  the  ground 
that  he  had  been  once  in  jeopardy.  Com, 
V.  Sholes,  13  Allen,  554. 

160.  Recital  in  the  record,  that  the 
jury  were  sworn.  In  capital  cases  and 
other  felonies,  unless  the  record  shows  that 
the  jury  were  duly  sworn,  the  judgment  will 
be  reversed.  Johnson  v.  State,  47  Ala.  10, 
63 ;  Bugg  V.  State,  lb.  51 ;  Horton  v.  State, 
lb.  58 ;  Smith  v.  State,  lb.  540  ;  Stephens  v. 
State,  lb.  696 ;  Lockett  v.  State,  lb.  43. 

161.  Where  the  record  shows  that  the 
oath  which  the  statute  requires  has  not 
been  administered  to  the  jury,  it  will  be 
ground  for  reversing  the  judgment.  But 
where  the  record  states  that  the  jury  were 
duly  sworn,  it  will  be  presumed  that  the 
proper  oath  was  administered  to  them. 
Arthur  v.  State,  3  Texas,  403 ;  Bell  v.  State, 
5  Eng.  536.  If  however,  it  nowhere  appears 
from  the  record,  that  the  jury  were  sworn, 
the  defect  will  be  fatal.  Nels  v.  State,  3 
Texas,  280. 

162.  Where  the  oath  administered  to  the 
jury  is  set  out  in  the  minute  entry  of  the 
trial,  an  omission  of  an  essential  part  of  it    j> 
will  render  the  conviction  erroneous.     But 

if  the  entry  does  not  purport  to  set  out  the 
oath,  but  states  that  the  juiy  "was  duly 
sworn  according  to  law,"  or  was  ' '  duly 
sworn,"  it  will  be  sufficient.  Gardner  v. 
State,  48  Ala.  263. 

163.  There  is  no  precise  form  in  which 
the  court  is  required  to  make  its  minutes  at 
the  trial.  The  minute  entry,  after  reciting 
that  the  jury  were  impaneled  well  and 
truly  to  try  the  issue  joined  between  the 
State  and  the  defendant,  and  that  the  trial 
not  being  finished,  the  court  adjourned  and 
reassembled  on  the  following  morning,  con- 
tinued as  follows :  "  Thereupon  also  came 
the  defendant  and  his  counsel,  as  also  the 
counsel  for  the  State,  together  with  the  jurj^ 
that  had  been  impaneled  and  sworn  as 
aforesaid,  and  the  trial  of  said  cause  was 
resumed ;  and  after  the  evidence  of  all  the 
witnesses  had  been  given  in,  and  the  argu- 


TEIAL. 


G05 


Initiatory  Proceedings  in  the  Case. 


ment  of  counsel  had  been  heard,  the  jury 
received  the  charge  of  the  court  and  retired 
in  the  charge  of  the  sheriff  to  make  up  their 
verdict,  and  now  return  into  court  and  on 
their  oaths  do  say,"  &c.  Held  that  the 
record  sufficiently  showed  that  the  jury  was 
sworn  before  the  testimony  was  heard. 
Crist  V.  State,  21  Ala.  137. 

164.  Amendment  of  minutes  as  to  swear- 
ing of  grand  jury.  Where  the  minutes  of 
the  court  omit  to  mention  that  the  grand 
jury  was  sworn,  upon  proof  that  it  was  done, 
and  that  the  omission  was  inadvertent,  the 
minutes  may  be  amended.  State  v.  Folke, 
2  La.  An.  744. 

165.  Presence  of  accused  necessary  on 
trial  for  felony.  In  prosecutions  for  felony, 
the  defendant  must  be  personally  present 
whenever  any  step  is  taken  by  the  court  in 
his  case,  and  this  must  be  affirmatively 
shown  by  the  record.  Sperry's  Case,  9  Leigh, 
623;  McQuillan  v.  State,  8  Sm.  &  Marsh. 
587  ;  Dougherty  v.  Com.  69  Penn.  St.  286  ; 
Brown  v.  State,  24  Ark.  620;  Osborn  v. 
State,  lb.  629 ;  Helton  v.  State,  2  Fla.  500  ; 
Gladden  v.  State,  12  lb.  562. 

166.  A  motion  to  set  aside  fhe  verdict  as 
contrary  to  evidence  was  made  on  one  day 
and  overruled  on  a  subsequent  day.  The 
record  stated  that  the  prisoner  appeared  on 
both  days  by  attorney,  and  there  was  nothing 
to  show  that  the  prisoner  was  present.  Held 
error.     Hooker  v.  Com.  13  Graft.  763. 

167.  On  a  trial  f©r  burglary,  the  judge 
directed  tlie  jury  and  witnesses  for  the 
prosecution  who  had  testified  to  visit  and 
inspect  the  premises  where  the  burglary  was 
alleged  to  have  been  committed.  But  the 
prisoner  was  not  allowed  to  accompany 
them,  and  the  witnesses  were  directed  to 
point  out  to  the  jury  the  places  marked  on 
a  diagram  of  the  premises.  Held  error. 
State  V.  Bertin,  24  La.  An.  46. 

168.  Presumption  as  to  the  presence  of 
the  accused.  In  general  it  will  not  be  in- 
ferred that  because  the  record  shows  that 
the  prisoner  was  present  in  court  on  one 
day,  he  was  therefore  present  on  the  follow- 
day.  State  v.  Cross,  27  Mo.  332 ;  State  v. 
Schoenwald,  31  lb.  147. 

169.  But  in  Illinois,  it  has  been  held  that 


where  the  record  does  not  show  affirma- 
tively that  the  defendant  was  present  in 
court  when  the  verdict  was  rendered  and 
judgment  pronounced,  and  no  interval  ap- 
pears between  the  arraignment,  trial,  ver- 
dict and  judgment,  it  will  be  presumed  that 
the  prisoner  was  personally  present  during 
the  whole  time,  including  the  moment  when 
sentence  was  passed  upon  hiin.  Schirmer 
V.  People,  33  111.  270. 

170.  Prisoner's  right  to  be  present  can- 
not be  waived.  The  right  of  a  prisoner 
indicted  for  felony  to  be  present  in  court  at 
his  trial  cannot  be  waived  either  by  himself 
or  his  counsel,  by  consent  or  otherwise. 
Paine  v.  Com.  18  Penn.  St.  108 ;  Dunn  v. 
Com.  6  Barr,  384. 

171.  Communications  made  by  the  court 
to  the  jury  after  they  have  retired  to  de- 
liberate upon  their  verdict,  in  answering 
questions  proposed  by  them  relating  to  the 
case,  are  a  proceeding  upon  the  trial  within 
the  meaning  of  a  statute  which  provides  that 
the  prisoner  shall  be  personally  present  dur- 
ing the  trial.     Maurer  v.  People,  43  N.  Y.  1. 

172.  The  reading  of  evidence  taken  by 
deposition,  although  done  after  the  jury 
have  retired,  is  a  part  of  the  trial  within  the 
rule  requiring  the  presence  of  the  prisoner. 
People  v.  Kohler,  5  Cal.  72. 

173.  Temporary  absence  of  prisoner  not 
improper.  A  prisoner  indicted  for  felony 
may  waive  the  right  to  be  present,  so  far  at 
least  as  to  be  temporarily  absent  from  the 
room  during  some  portion  of  the  trial,  and 
the  burden  is  on  him  to  show  that  he  was 
deprived  of  the  right  to  be  preseot.  Hill  v. 
State,  17  Wis.  675. 

174.  Removal  of  prisoner  from  court- 
room for  interrupting  counsel.  On  a  trial 
for  i^erjury,  the  defendant  was  present  dur- 
ing the  impaneling  of  the  juiy  and  during 
a  portion  of  tiie  opening  of  the  case  by  the 
district  attorney,  when  he  commenced  in- 
terrupting the  district  attorney  and  denying 
his  statements  in  a  loud  voice,  although 
admonished  by  the  court  to  desist.  The 
action  of  the  prisoner  continuing  to  be  such 
as  to  make  it  impossible  to  proceed  with  the 
trial,  he  was  ordered  to  be  removed  from 
the  court  room  and  to   be  detained  in  an 


(300 


TRIAL. 


Initiatory  Proceedings  in  the  Case. 


adjoining  room  with  liberty  of  access  for 
his  counsel.  At  the  conclusion  of  the  open- 
ing, the  trial  was  postponed  to  the  next 
day,  when  it  was  continued  in  the  presence 
of  the  prisoner,  and  concluded  without  fur- 
ther disturbance.  Held  that  no  error  was 
committed.     U.  S.  v.  Davis,  6  Blatchf.  4G4. 

175.  When  presence  of  accused  not  re- 
quired. In  Pennsylvania,  in  felonies  not 
capital,  the  record  need  not  show  that  the 
prisoner  was  present  when  the  verdict  was 
rendered,  but  his  presence  will  be  presumed 
unless  the  contraiy  aj^pears.  Holmes  v. 
Com.  25  Penn.  St.  221. 

176.  In  Arkansas,  in  Indictments  for  slight 
misdemeanors,  the  accused  may  be  tried 
without  being  personally  present.  Sweeden 
V.  State,  19  Ark.  205  ;  Warren  v.  State,  lb. 
214. 

177.  In  Vermont,  where  conviction  is  not 
followed  l)y  imprisonment,  the  accused  may 
appear  by  counsel,  and  having  done  so,  the 
trial  may  proceed  without  regard  to  the 
continued  presence  of  either  the  accused  or 
his  counsel.     Ex  parte  Tracy,  25  Vt.  93. 

178.  Presumption  as  to  demand  for  trial. 
A  demand  to  be  tried  may  be  by  acts  or 
words,  or  both.  Where  the  prisoner  ap- 
peared and  ratified  the  act  of  his  counsel  in 
setting  dowu  the  cause  for  trial,  challenged 
jurors,  produced  and  examined  witnesses, 
and  summed  up,  it  was  held  equivalent  to  a 
formal  demand  to  be  tried.  People  v.  Frost, 
5  Parker,  52. 

179.  Continuance  of  cause  need  not  be 
shown.  The  record  need  not  show  how  the 
cause  was  continued  from  the  first  day  of 
the  term  to  the  day  of  the  trial.  Berrian  v. 
State,  2  Zabr.  9. 

180.  Death  of  prosecutor.  Under  the 
law  of  Tennessee  requiring  some  citizen  to 
act  as  prosecutor,  his  death  does  not  dis- 
charge the  accused.  State  v.  Loftis,  8  Head, 
500. 

181.  Proceedings  upon  original  indict- 
ment after  indictment  which  was  substi- 
tuted for  it  has  been  quashed.  An  indict- 
ment for  an  assault  with  intent  to  inflict 
bodily  injury  was  supposed  to  be  lost,  and 
another  indictment  presented  for  the  same 
ofiense.     The  second  indictment  being  de- 


fective, was  quashed.  In  the  mean  time,  the 
lost  indictment  was  found,  and  upon  this, 
the  defendant  was  tried,  and  found  guilty. 
Held  no  error.  Keddan  v.  State,  4  Greene, 
137. 

182.  Effect  of  dismissal  of  sufficient  in- 
dictment. Where  the  indictment  is  sufli- 
cient,  and  the  accused  is  arraigned,  pleads, 
and  the  jury  is  impaneled  and  sworn,  a  dis- 
missal of  the  indictment  without  his  con- 
sent operates  as  an  acquittal.  Lee  v.  State, 
26  Ark.  260. 

183.  Prosecution  when  compelled  to 
elect.  Where  the  same  ofi'ense  is  charged  in 
different  forms  in  several  counts,  it  is  in  the 
discretion  of  the  court  to  compel  the  prose- 
cution to  elect  on  which  count  he  will  pro- 
ceed.    State  V.  Jackson,  17  Mo.  544. 

184.  A  motion  of  the  prisoner's  counsel 
that  the  prosecutor  be  compelled  to  elect  on 
which  count  in  the  indictment  he  will  pro- 
ceed, will  not  be  entertained  by  the  court 
until  after  the  jury  are  sworn  and  charged 
with  the  case.  Stephen  v.  State,  11  Ga. 
225. 

185.  Accused  not  confined  to  one  of 
several  pleas.  The  prisoner  cannot  be 
compelled  to  select  and  rely  upon  one  of 
several  pleas  submitted  by  him.  State  v. 
Greenwood,  5  Porter,  474. 

186.  Retrial  after  conviction  upon  one 
of  several  counts.  Where  under  an  indict- 
ment containing  two  counts  the  defendant 
having  been  found  guilty  on  but  one,  obtains 
a  new  trial,  he  may  be  tried  again  on  both 
counts.  State  v.  Commissioners,  3  Hill,  S. 
C.  289. 

187.  Issue  on  special  plea  to  be  tried 
first.  Where  issue  is  joined  on  the  pleas  of 
not  guilty  and  autrefois  acquit  or  convict, 
the  issue  on  the  special  plea  must  be  first  tried 
and  decided;  and  if  both  issues  be  sub- 
mitted to  the  jury  at  the  same  time,  in- 
jury will  be  presumed  unless  the  record 
shows  otherwise.  The  failxire  of  the  prisoner 
to  object,  will  not  be  a  waiver  of  the  irregu- 
larity ;  nor  is  a  bill  of  exceptions  necessary 
when  the  error  appears  of  record.  Foster 
V.  State,  29  Ala.  229 ;  Lee  v.  State,  26  Ark. 
260.  In  Alabama,  it  has  been  held  that  al- 
though if  the  defendant  in  a  case  of  misde- 


TRIAL. 


007 


Proceedings  in  the  Conduct  of  the  Case. 


Introduction  of  Evidence. 


meaner  goes  to  trial  on  both  issues  at  the 
same  time  without  objection,  he  thereby 
waives  the  irregularity;  yet  if  the  jury  find 
a  verdict  without  finding  upon  the  special 
plea,  no  judgment  can  be  rendered  against 
the  defendant.     Dominick  v.  State,  40  Ala. 


680. 


4.  Proceedings 


^ 


IN   THE 

CASE. 


CONDUCT     OF   THE 


(a)  Introduction  of  evidence. 

188.  What  notice  sufficient.  Notice  to  a 
person  to  produce  a  telegram  received  by 
him,  is  reasonable,  if  given  before  the  com- 
meucement  of  the  trial.  State  v.  Litchfield, 
58  Maine,  267. 

189.  Objection  that  witnesses'  names 
have  not  been  furnished  to  defendant. 
In  New  Hampshire,  it  is  competent  for  the 
defendant  when  indicted  for  an  offense,  the 
punishment  of  which  may  be  death  or  con- 
finement at  hard  labor  for  life,  to  except  to  a 
witness  that  he  is  not  named  in  the  list  of 
witnesses  furnished  pursuant  to  the  statute 
(R.  S.  ch.  225,  §  3),  unless  the  exception  ap- 
plies to  the  whole  list  of  witnesses,  in  which 
case,  he  must  make  the  objection  when  the 
case  is  called,  or  it  will  be  deemed  waived. 
There  is  no  particular  formality  required  in 
designating  the  places  of  abode  of  the  wit- 
nesses in  the  list.  Naming  the  town  and 
State  after  the  name  of  each  witness  is 
sufficient.  Lord  v.  State,  18  New  Hamji. 
173.  To  render  admissible  the  testimony  of 
a  witness  whose  name  has  not  been  furnished 
to  the  defendant  before  the  trial,  the  defend- 
ant must  have  offered  evidence  of  new  mat- 
ter, or  the  testimony  proposed  to  be  intro- 
duced must  go  to  discredit  that  of  the  de- 
fendant. State  V.  Hartigan,  19  New  Hamp. 
248. 

190.  In  Illinois,  the  prosecution  is  not  re- 
stricted to  the  witnesses  whose  names  are  in- 
dorsed on  the  indictment  and  furnished 
previous  to  the  arraignment ;  but  the  court 
in  the  exercise  of  a  sound  discretion,  may 
permit  such  other  witnesses  to  be  examined 
as  the  justice  of  the  case  may  seem  to  re- 
quire.    Gardner  v.  Peopk',  3  Scam,  83. 

191.  Requiring  counsel  to  state  what 
they  expect  to  prove.     It  is  discretionary 


with  the  court  whether  or  not  to  require 
counsel  to  disclose  what  they  expect  to  show 
by  a  witness  before  he  is  examined.  In  such 
case,  counsel  will  be  required  to  state  the 
substance  of  what  they  expect  to  prove. 
People  V.  White,  14  Wend.  111. 

192.  Inquiry  as  to  the  competency  of 
proof.  When  a  preliminary  examination  is 
instituted  by  the  court  into  the  circumstances 
under  which  a  confession  was  obtained,  the 
judge  may  direct  the  prosecuting  officer  to 
conduct  it;  and  the  course  and  extent  of  it, 
and  its  eflfect,  are  to  be  determined  by  the 
judge.     Com.  v.  Morrell,  99  Mass.  542. 

193.  Upon  the  question  whether  a  written 
instrument  is  sufficiently  proved  to  have 
been  written  by  the  defendant  to  allow  it  to 
be  submitted  to  the  jury  as  a  standard  of 
comparison,  the  judge  at  the  trial  must  pass 
in  the  first  instance;  and  so  far  as  his 
decision  is  of  a  question  of  fact  merely,  it 
must  be  final  if  there  is  any  proper  evidence 
to  support  it.     Com.  v.  Coe,  115  Mass.  481. 

194.  When  witness  must  be  objected  to. 
Objections  to  the  competency  of  a  witness 
must  be  made  before  his  examination,  if 
known  to  the  party  objecting.  When  this 
knowledge  is  first  acquired  after  the  ex- 
amination of  the  witness  has  commenced,  the 
objection  will  be  waived  if  the  witness  is 
suflfered  to  proceed  after  the  discovery. 
State  V.  Damery,  48  Maine,  327. 

195.  Objection  to  evidence,  how  made. 
When  objections  are  made  to  the  admission 
of  evidence,  they  must  be  specifically  set 
forth.     State  v.  Bowe,  61  Maine,  171 

196.  Where  part  of  a  question  is  legal 
and  proper,  if  the  other  part  is  objectionable, 
the  objection  to  be  available  must  be  specif- 
ically pointed  out.  Hochrieter  v.  People,  2 
N.  Y.  Ct.  of  App.  Decis.  363  ;  s.  c.  1  Keyes, 
66. 

197.  But  where  evidence  is  prima  facie 
improper,  the  party  objecting  to  it  need  not 
state  the  ground  on  which  the  objection  is 
founded.     Davis  v.  State,  17  Ala.  415. 

198.  Objecting  to  mode  of  proof.  An 
objection  to  the  mode  of  proving  a  fact, 
and  not  to  the  proof  of  the  fact  itself  (as 
that  a  written  instrument  cannot  be  proved 
by   parol),   must  be  distinctly  placed  upon 


COS 


TRIAL. 


Proceedings  in  the  Conduct  of  the  Case. 


Introduction  of  Evidence. 


that   ground.     Murphy   v.  People,  6  N.  Y. 
Supm.  N.  S.  369. 

189.  Objections  and  rulings  were  made 
and  exceptions  taken  to  certain  questions 
put  to  witnesses,  but  not  to  their  answers, 
which  were  directly  responsive  to  the  ques- 
tions. Held  that  the  defendant  was  entitled 
to  raise  the  points  and  review  the  erroneous 
rulings.  Shaw  v.  People,  5  N.  Y.  Supm. 
K  S.  439. 

200.  Admitting  evidence  witliout  ob- 
jection. An  exception  cannot  be  taken  to 
an  answer  which  is  responsive  to  a  question 
put  without  objection.  State  v.  Nutting, 
39  Maine,  359. 

201.  Where  immaterial  evidence  has  been 
admitted  without  objection,  it  is  too  late 
afterward  to  object  to  its  effect.  Stephens 
V.  People,  4  Parker,  390;  atfi'd  19  N.  Y. 
549. 

202.  But  after  a  letter  offered  by  the  pros- 
ecution, has  been  examined  by  the  defend- 
ant's counsel,  put  in  evidence,  and  partly 
read  with  his  consent,  the  refusal  of  the 
court  to  entertain  an  objection  to  its  ad- 
mission is  within  its  discretion.  Com.  v. 
Marks,  101  Mass.  31. 

203.  Answer  not  responsive  to  question. 
When  the  party  examining  a  witness  is  will- 
ing to  accept  an  answer  not  responsive  to 
his  question  which  he  would  have  had  a 
right  to  elicit,  the  opposite  party  cannot 
complain.  The  rule  may  be  different  in  the 
case  of  testimony  taken  by  deposition. 
Hamilton  v.  People,  29  Mich.  173. 

204.  Witness  testifying  without  being 
sworn.  The  prosecution  having  but  one 
witness,  he  gave  his  evidence  without  being 
sworn.  The  summing  up  being  closed,  de- 
fendant's counsel  moved  the  court  to  instruct 
the  jury  to  acquit,  as  there  was  no  evidence 
before  them.  This  motion  was  overruled, 
aud  the  witness  was  sworn  and  permitted  to 
testify  over  again.  Held  error.  Thompson 
V.  State,  37  Texas,  121. 

205.  Evidence  given  in  absence  of  judge. 
On  a  trial  for  murder,  the  court  was  com- 
posed of  a  circuit  judge,  county  judge,  and 
two  justices  of  the  sessions.  While  the  evi- 
dence was  being  given,  one  of  the  justices  of 
sessions   absented    himself  from   the   court 


during  an  entire  day,  but  resumed  his  seat 
on  the  bench  the  next  day,  and  the  trial 
proceeded  without  his  having  read  the  evi- 
dence given  in  his  absence.  Held  error 
which  could  not  be  waived  by  the  prisoner. 
Shaw  V.  People,  5  N.  Y.  Supm.  N.  S.  439. 

206.  Admission  of  hearsay.  Where  on 
a  trial  of  an  indictment  for  robbery,  the 
prosecutor  was  allowed  to  testify  that  he 
gave  to  the  police  olficers  a  description  of 
the  persons  who  assaulted  him,  and  the 
officers  were  also  permitted  to  testify  that 
by  means  of  that  description  they  recognized 
the  defendants  as  assailants,  it  was  held 
error.     Com.  v.  Fagan,  108  Mass.  471. 

207.  Proof  of  part  only  of  transaction 
not  proper.  The  prosecution  cannot  claim  a 
conviction,  U2wn  submitting  evidence  of  a 
part  only  of  an  entire  transaction,  unless 
evidence  of  the  rest  is  not  attainable ;  and 
the  prosecution  should  examine  all  their  wit- 
nesses to  the  transaction  before  the  accused 
is  put  to  his  defense.  Hurd  v.  People,  25 
Mich.  405;  Wellar  v.  People,  30  lb.  16. 

208.  Jury  viewing  premises.  The  court 
may  permit  the  jury  in  a  capital  case  to 
view  the  premises,  accompanied  by  an  offi- 
cer of  the  court  and  by  the  respective  coun- 
sel.    Com.  V.  Webster,  5  Cush.  295. 

209.  Purpose  for  which  premises  may 
be  viewed.  The  jury  are  permitted  to  view 
premises,  not  for  the  purpose  of  furnish- 
ing evidence  upon  whicli  a  verdict  is  to  be 
rendered,  but  in  order  to  enable  them  bet- 
ter to  understand  and  apply  the  evidence 
which  is  given  in  court.  Chute  v.  State,  19 
Minn.  271  ;  s.  c.  1  Green's  Crim.  Reps.  571. 

210.  Where  on  a  trial  for  larceny  the 
court  permitted  the  jury  to  go  out  and  in- 
spect the  animal  alleged  to  have  been  stolen, 
for  the  purpose  of  determining  the  question 
of  identity  and  ownership,  it  was  held  error. 
Smith  V.  State,  42  Texas,  444. 

211.  Latitude  of  proof  allowed  one  of 
several  defendants.  On  the  trial  of  an 
indictment  against  several  jointly  charged 
with  the  commission  of  the  same  crime,  each 
is  entitled  to  pursue  his  own  line  of  defense, 
although  in  so  doing  he  may  introduce  evi- 
dence which  is  injurious  to  his  codefend- 
ants.     Com.  v.  Robinson,  1  Gray,  555. 


TKIAL. 


609 


Proceedings  in  the  Conduct  of  the  Case.      Evidence. 


Ruling  of  Court, 


212.  When  testimony  should  be  stricken 
out.  Where  the  opposite  party  has  lost, 
■without  his  own  fault,  neglect  or  consent, 
the  opportunity  to  cross-examine,  the  evi- 
dence on  the  direct  examination  should  be 
stricken  out.  On  the  close  of  her  direct 
examination,  A.,  who  had  been  under  great 
nervous  excitement  during  the  time  she  was 
testifying,  fainted  away.  She  had  convul- 
sions during  the  night,  and  was  incapable 
of  being  cross-examined  on  the  next  day. 
The  prisoner's  counsel  insisting  on  his  right 
to  cross-examine  the  witness,  requested  the 
court  to  strike  out  her  evidence,  to  post- 
pone the  trial,  or  discharge  the  prisoner, 
each  of  which  requests  was  refused.  Held 
error.  Cole  v.  People,  43  N.  Y.  508 ;  affi'g 
2  Lans.  370. 

213.  Admitting  testimony  after  case 
is  closed.  In  Massachusetts,  the  admis- 
sion of  additional  evidence  in  behalf  of  the 
prosecution  after  the  defendant  has  closed 
his  case  is  a  matter  of  judicial  discretion, 
and  not  the  subject  of  exception.  Com.  v. 
Arrance,  5  Allen,  517.  And  whether  the 
defendant  will  be  permitted  to  introduce 
further  evidence  after  both  sides  have  rested, 
and  the  prisoner's  counsel  has  made  his 
closing  address,  and  the  prosecuting  attor- 
ney has  nearly  finished  his  reply  thereto,  is 
likewise  in  the  discretion  of  the  court. 
Com.  V.  Dower,  4  lb.  297. 

214.  In  Georgia,  it  has  been  held,  that 
after  the  case  had  been  submitted  to  the 
jury  on  both  sides,  the  prosecution  will  not 
be  permitted  to  introduce  further  evidence. 
Judge  V.  State,  8  Ga.  173;  but  that  the  rule 
does  not  apply  where  no  motion  has  been 
made,  or  testimony  tendered  by  the  defense, 
or  the  witnesses  discharged.  Haskins  v. 
State,  11  lb,  93.  "Where  on  a  trial  for  mur- 
der, after  the  evidence  for  the  prosecution 
had  closed,  and  the  prisoner's  counsel  had 
stated  that  he  would  not  introduce  any 
testimony,  a  witness  who  had  been  sworn 
and  examined  in  the  case,  corrected  his 
testimony  in  a  private  interview  with  the 
judge,  which  correction  the  judge  announced 
in  the  presence  and  hearing  of  the  jury,  it 
was  held  error.    Crawford  v.  State,  13  Ga.l43. 

215.  In    Missouri,  the   court    may    allow 

39 


witnesses  to  be  recalled  and  examined  at 
any  time  before  the  jury  retire,  in  order  to 
supply  testimony  that  has  been  omitted. 
Freleigh  v.  State,  8  Mo.  C06.  But  in  that 
State,  where  on  the  trial  of  a  capital  case, 
after  the  close  of  the  evidence  in  behalf  of 
the  prosecution,  none  being  offered  by  tlie 
defense,  the  jury  were  allowed  by  consent 
of  parties,  to  go  home  until  morning,  and 
upon  the  reopening  of  the  court,  the  prose- 
cution reexamined  witnesses,  and  introduced 
some  additional  testimony,  it  was  held 
error.     Mary  v.  State,  5  Mo.  71. 

216.  In  New  York,  the  court  may  permit 
the  prosecution  to  introduce  further  evi- 
dence after  the  summing  up  has  commenced. 
Kalle  V.  People,  4  Parker,  591 ;  and  it  is  in 
the  discretion  of  the  court  to  reject  testi- 
mony offered  by  the  prisoner  after  the  close 
of  the  proof  and  the  summing  up  of  the 
case  to  the  jury.  Wilke  v.  People,  53  N.  Y. 
525.  In  Vermont,  it  has  been  held  that 
proof  of  a  former  conviction  for  the  pur- 
pose of  increasing  the  penalty,  need  not  be 
submitted  to  the  jury,  but  may  be  given 
after  the  verdict.  State  v.  Haynes,  36  Vt. 
667. 

(b)  Ruling  of  court. 

217.  As  to  intercourse  with  the  bench. 
Unless  the  rights  of  the  parties  are  affected, 
the  court  will  not  direct  as  to  the  manner 
of  intercourse  between  the  bench  and  the 
bar,  during  the  trial.  Long  v.  State,  13 
Ga.  293. 

218.  Refusing  to  hear  argument.  The 
court  is  not  obliged  to  hear  argument  upon 
a  question  of  law,  if  its  opinion  is  already 
formed.     Howell  v.  Com.  5  Gratt.  664. 

219.  Giving  prosecution  the  benefit  of 
legal  doubts.  Where  the  presiding  judge 
remarked,  on  determining  certain  motions 
to  quash  an  indictment,  that  he  had  doubts 
about  the  law,  and  would  give  the  State 
the  benefit  of  them  because  the  State  was 
not  allowed  to  carry  the  case  to  the  Supreme 
Court,  it  was  held  to  be  neither  an  error 
nor  an  irregularity.    Cook  v.  State,  1 1  Ga.  53. 

220.  Judge  expressing  an  opinion  as  to 
the  evidence.  It  is  error  in  the  court  to 
tell  the  jury  tljat  a  fact  is  positively  estab- 


CJO 


TEIAL. 


Proceedings  in  the  Conduct  of  the  Case. 


Ruling  of  Court. 


lished.  Hill  v.  State,  17  Wis.  675.  Although 
the  judge  may  with  propriety  correct  coun- 
sel when  they  mistake  the  evidence,  yet  he 
has  no  right  to  express  an  opinion  as  to  the 
facts  of  the  case.  Bill  v.  People,  14  111.  433. 
But  see  Conraddy  v.  People,  5  Parker,  234. 

221.  It  is  error  for  the  judge  to  say  in  the 
hearing  of  the  jury,  "never  mind  reading 
over  the  testimony  taken  down  on  cross- 
examination,  it  does  not  amount  to  much 
any  way."     Crawford  v.  State,  12  Ga,  142. 

222.  On  the  trial  of  an  indictment  for 
rape,  the  accused  offered  to  prove  that  the 
Ijrosecutrix  had  said  that  another  person 
committed  the  offense.  The  court  in  ex- 
cluding the  evidence  remarked  that  "it 
amounted  to  nothing."  Held  error.  Ken- 
nedy V.  People,  44  111.  283. 

223.  On  a  trial  for  murder,  the  State's 
attorney  asked  a  witness  what  the  condition 
of  the  mind  of  the  deceased  was  towards 
the  prisoners  after  the  mortal  wounds  were 
given,  whethe^r  kind  or  malevolent.  The 
judge  in  ruling  out  the  question  remarked 
that  "  H.  (the  deceased)  had  a  right  to  be 
mad."   Held  error.    Home  v.  State,  37  Ga.  80. 

224.  Where  the  court  on  a  trial  for  mur- 
der referred  to  the  deceased  as  "  a  victim," 
it  was  held  that  it  had  no  right  to  make  use 
of  such  an  expression,  it  being  nearly  equiv- 
alent to  characterizing  the  defendant  as  a 
criminal.     People  v.  Williams,  17  Cal.  142. 

225.  It  is  error  to  rule  that  a  witness  is 
not  to  be  regarded  as  an  accomplice  unless 
"an  admitted  accomplice  or  proved  to  be 
so,  beyond  a  reasonable  doubt;"  the  ques- 
tion being  one  of  fact  for  the  jury.  Com. 
V.  Ford,  111  Mass.  394;  Com.  v.  Glover,  lb. 
395. 

226.  It  is  not  error  for  the  court  to  ex- 
press an  opinion  upon  the  evidence,  when 
the  jury  are  afterward  instructed  that  they 
are  the  judges  of  all  questions  of  fact. 
Stephens  V.  People,  4  Parker,  396;  19  N. 
Y.  549.  Contra,  State  v.  Ah  Tong,  7  Nev. 
148 ;  State  v.  Harkin,  lb.  377. 

227.  InBtructing  jury  to  disregard  evi- 
dence. It  is  error  to  admit  illegal  evidence, 
although  the  court  afterward  irfetructs  the 
jury  to  disregard  it.  State  v.  Mix,  15  Mo. 
153;  State  v.  Wolf,  lb.  169-. 


228.  On  the  trial  of  an  indictment  for  mur- 
der, the  prosecution  was  permitted  to  read 
in  the  presence  of  the  jury  a  written  state- 
ment purporting  to  have  been  sworn  to  be- 
fore the  coroner's  jury  by  a  witness  on  the 
stand,  for  the  purpose  of  refreshing  her  mem- 
ory. The  witness  who  was  the  daughter 
of  the  defendant,  denied  all  knowledge  or 
recollection  of  such  a  statement;  and  the 
court  said  to  the  jury :  "  You  are  not  to  al- 
low her  testimony  in  the  slightest  degree  to 
influence  you  against  the  defendant."  Held 
that  there  was  no  error.  Harvey  v.  State, 
40  Ind.  516. 

229.  Admitting  evidence  previously  ex- 
cluded. The  error  of  excluding  evidence  is 
cured  by  its  subsequent  admission.  Coats 
V.  People,  4  Parker,  662. 

230.  An  error  in  permitting  evidence  to 
be  given  that  a  witness  had  on  a  certain  oc- 
casion made  statements  inconsistent  with  his 
testimony,  without  first  calling  the  attention: 
of  the  Avitness  to  such  statements,  was  held 
cured  by  the  defense  afterward  calling  the 
witness  and  his  denying  the  statements.  U. 
S.  V.  McHeury,  6  Blatch.  503. 

231.  Setting  aside  juror.  After  a  juror 
is  accepted  and  sworn,  he  cannot  be  dis- 
charged without  the  consent  of  the  prisoner, 
for  any  cause  which  existed  when  he  was 
sworn,  although  the  cause  may  have  been 
discovered  after  he  was  impaneled.  State  v. 
Williams,  3  Stew.  454. 

232.  On  the  trial  of  a  felony,  it  is  error 
for  the  court,  against  the  objection  of  the  ac- 
cused, to  discharge  a  juror,  because  since 
such  juror  Avas  summoned,  and  before  he  was 
drawn,  he  had  been  convicted  of  an  assault, 
and  at  the  time  of  the  trial  was  confined  in 
the  county  jail.     Boggs  v.  State,  45  Ala.  30. 

233.  On  a  trial  for  murder,  a  juror  having 
been  accepted  and  sworn,  informed  the  court 
that  he  was  legally  exempt  from  serving  on 
juries,  and  asked  to  be  discharged.  The 
court  said  this  could  not  be  done ;  whereupon 
the  juror  stated  that  he  would  discharge 
himself,  and  left  the  court  room.  The 
court  then,  without  discharging  the  juror, 
caused  another  juror  to  be  selected  in  his 
place  without  the  consent  of  the  prisoner. 


TRIAL. 


Gil 


Proceedings  in  the  Conduct  of  the  Case. 


Ruling  of  Court. 


Held  cause  for  a  new  trial,     Powell  v.  State, 
48  Ala.  154. 

234.  On  a  trial  for  murder,  a  jury  having 
been  selected  and  sworn,  and  a  witness  ex- 
amined, one  of  the  jurors  announced  to  the 
court  that  he  then  recollected  that  he  was  a 
member  of  the  grand  jury  that  found  the  in- 
dictment against  the  prisoner.  Thereupon, 
the  court  set  the  juror  aside,  and  substituted 
another  juror  in  his  jilace,  to  which  the  de- 
fendant objected.  Held  that  such  action  of 
the  court  operated  as  an  acquittal.  O'Brian, 
T.  Com.  9  Bush,  Ky.  333 ;  s.  c.  6  lb.  563. 

235.  Discharging  jury.  If  the  court  dis- 
charge the  jury  without  necessity  therefor, 
the  prisoner  may  plead  it  in  bar  of  another 
trial.  McCauley  v.  State,  26  Ala.  135. 
Sickness  of  jurors,  when  it  can  be  remedied 
by  refreshment,  is  not  such  necessity.  Com. 
V.  Clue,  3  Rawie,  498 ;  Ned  v.  State,  7  Por- 
ter, 187;  Williams'  Case,  2  Graft.  567; 
Judge  V.  State,  8  Ga.  173;  State  v.  Ephraim, 
2  Dev.  «&  Batt.  162.  Insanity  of  a  juror 
would  be  a  sufficient  cause  for  discharging 
the  jury.  U.  S.  v.  Haskell,  4  Wash.  C.  C. 
102.  The  mere  opinion  of  the  judge  that 
the  evidence  shows  the  defendant  to  be 
guilty  of  a  higher  degree  of  crime,  is  not 
such  a  necessity  as  justifies  the  discharge  of 
thejuiy.  People  v.  Hunckeler,  48  Cal.  331. 
A  court  of  the  United  States  has  authority 
to  discharge  a  jury  from  giving  a  verdict, 
without  the  consent  of  the  defendant,  when- 
ever, in  its  opinion,  there  is  a  manifest  ne- 
cessity for  the  act,  and  to  do  so  with  the 
consent  of  the  defendant  in  a  case  which 
falls  short  of  being  one  of  manifest  neces- 
sity. But  the  fact  that  the  court  regarded 
the  defendant  as  consenting  to  such  dis- 
charge, will  not,  in  the  absence  from  the 
miimtes  of  the  court  of  any  statement  to 
that  eifect,  conclude  him.  Where  the  jury 
was  discharged  and  the  trial  postponed  on 
account  of  the  illness  of  the  district  attor- 
ney, and  it  did  not  appear  from  the  minutes 
that  such  illness  occurred  after  the  jury  was 
sworn,  or  that  the  assistant  district  attorney 
might  not  have  conducted  the  trial,  or  that 
the  defendant  consented  to  the  postpone- 
ment, it  was  held  equivalent  to  an  acquit- 
tal.    U.  S.  V.  Watson,  3  Benedict,  1. 


236.  On  the  trial  of  several  for  murder, 
the  court  decided  that  each  defendant  was 
entitled  to  be  examined  for  the  others,  where- 
upon the  solicitor  for  the  State  appealed; 
and  on  motion  of  the  solicitor,  and  against 
the  objection  of  the  defendants,  the  court 
discharged  the  jury.  Held  that  such  dis- 
charge operated  as  an  acquittal.  State  v. 
Prince,  63  N.  C.  529. 

237.  Where  on  a  trial  for  murder,  one  of 
the  jurors  becoming  ill,  requested  to  be  dis- 
charged, but  made  no  statement  under  oath 
as  to  his  condition,  and  no  medical  evidence 
was  submitted  in  his  behalf,  and  the  jury 
were  discharged  by  the  court  without  the 
prisoner's  consent,  it  was  held  a  bar  to  a  re- 
trial. Rulo  V.  State,  19  Ind.  298.  And 
where  in  a  capital  case,  the  jury  at  the  close 
of  the  evidence,  were  placed  in  the  custody 
of  two  bailiffs,  who  were  instructed  by  the 
court  to  keep  them  in  a  room,  and  not  per- 
mit them  to  communicate  with  any  one,  and 
the  bailiff  who  had  charge  of  them,  took 
them  into  a  public  square,  left  them,  and 
went  to  the  grocery  of  the  defendant,  who 
was  out  on  bail,  and  there  procured  from  his 
bar-keeper  a  pitcher  of  beer,  which  the  jury 
drank,  and  the  court,  contrary  to  tlie  de- 
fendant's objection,  discharged  the  jury,  it 
was  held  that  such  discharge  operated  as  an 
acquittal.     State  v.  Leunig,  42  Ind.  541. 

238.  After  a  trial  for  bigamy  had  gone  on 
some  time,  it  was  discovered  that  the  de- 
fendant had  not  been  arraigned  or  asked  to 
plead  to  the  indictment.  The  defendant 
was  then  arraigned  and  the  indictment  read 
to  him.  The  defendant  objected  to  any 
further  proceedings  being  taken.  The  ob- 
jection was  overruled,  and  on  request,  the 
defendant  pleaded  not  guilty.  The  defend- 
ant again  objected  to  any  further  proceed- 
ings, and  the  court  discharged  the  jury. 
Held  not  a  bar  to  further  trial.  King  v. 
People,  12  N.  Y.  Supm.  N.  S.  297. 

239.  Where  on  the  trial  of  an  indictment 
for  selling  spirituous  liquors  without  a  li- 
cense, the  prisoner  consented,  in  order  to 
avoid  a  postponement  of  the  case  on  ac- 
count of  the  intoxication  of  a  material  wit- 
ness for  the  prosecution,  that  the  cause 
might  be  withdrawn  from  the  jury  if  it  ap- 


012 


TKIAL. 


Proceedings  in  the  Conduct  of  the  Case. 


Summing  up  of  Counsel. 


peared  in  the  progress  of  the  trial  that  the 
witness  was  too  much  intoxicated  to  testify 
intelligibly,  which  proved  to  be  the  case,  it 
was  held  that  the  court  might  discharge  the 
jury  against  the  prisoner's  objection.  Hughes 
V.  State,  35  Ala,  351. 

(c)  Deportment  of  tlie  jurrj  ichile  the  case  is  he- 
fore  them. 

240.  Juror  leaving  box.  Tlie  court  may 
allow  a  juror  to  leave  the  jury  box  for  a 
brief  time,  even  during  the  trial  of  a  capital 
case.     State  v.  Anderson,  2  Bail.  565. 

241.  Juror  talking  with  bystander. 
When  a  juror  during  the  trial  talks  with  a 
bystander,  or  leaves  the  court  room  without 
the  permission  of  the  court,  he  is  guilty  of 
a  misdemeanor,  for  which  he  is  liable  to  pun- 
ishment.    Barlow  v.  State,  2  Blackf.  114. 

242.  Separation  of  jury.  After  the  trial 
had  been  partly  had,  the  court  adjourned. 
During  the  adjournment,  one  of  the  jui'ors 
separated  from  his  fellows,  and  when  the 
court  met,  the  juror  was  dismissed  and 
another  person  substituted.  Held  error. 
Grable  v.  State,  2  Greene,  559. 

243.  In  South  Carolina,  it  is  discretionary 
with  the  court  to  permit  the  jury  to  sepa- 
rate during  the  adjournment  from  day  to  day 
during  the  trial.  State  v.  Anderson,  2  Bail. 
565. 

244.  In  Missouri,  where  both  sides  consent 
to  the  separation  of  the  jury  before  verdict, 
it  is  not  error  for  the  court  to  permit  it. 
State  V.  Mix,  15  Mo.  153.  But  it  has  been 
held  in  that  State,  that  the  jury,  after  they 
are  sworn,  should  not  be  allowed  to  separate 
until  they  have  rendered  their  verdict,  and 
that  if  permitted  to  do  so,  the  judgment  will 
be  reversed.     McLean  v.  State,  8  Mo.  153. 

245.  In  Indiana,  it  appeared  from  the 
record  in  a  capital  case,  that  after  the  jury 
were  sworn  the  court  adjourned  until  the 
next  day,  but  not  that  tlie  jury  were  legally 
disposed  of  during  the  adjournment.  Held 
error.     Jones  v.  State,  2  Blackf.  475. 

246.  Where  the  jury  through  inadvertence 
separated  and  mingled  with  the  crowd,  but 
the  court  was  satisfied  that  the  prisoner  was 
not  prejudiced  thereby,  it  was  held  that  the 


verdict  would  not  be  disturbed.     Roberts  v. 
State,  14  Ga.  8. 

247.  Where  jurors  slept  apart,  distributed 
iu  five  different  rooms  in  the  third  story  of  a 
hotel,  opening  upon  a  common  passage 
which  communicated  with  the  street  below 
by  flights  of  stairs,  the  doors  of  their  cham- 
bers being  unlocked  during  the  night,  and 
there  being  no  doors  or  other  fastenings  at 
either  end  of  the  passage,  it  was  held  that 
it  was  not  equivalent  to  a  separation. 
Thompson  v.  Com.  8  Gratt.  637. 

248.  In  Alabama,  it  has  been  held  that  if, 
after  the  evidence  is  closed,  the  jury  are 
permitted  to  separate,  such  separation  is  not 
ground  for  the  prisoner's  discharge,  but  that 
it  will  be  considered  a  very  strong  reason  for 
granting  a  new  trial  in  all  felonies.  Wil- 
liams V.  State,  45  Ala.  57. 

{d)  Summing  up  of  counsel. 

249.  Right  to  open  and  close.  The  party 
having  the  afhrraative  is  entitled  to  open, 
and  close.     Doss  v.  Com.  1  Gratt.  557. 

250.  On  the  trial  of  an  indictment  for 
murder,  the  defense  of  insanity,  under  the 
plea  of  not  guilty,  does  not  give  the  affirma- 
tive to  the  defendant  and  entitle  him  to 
open  and  close.  Loeffner  v.  State,  10  Ohio, 
N.  S.  598. 

251.  The  order  in  which  counsel  shall  ad- 
dress the  jury  is  in  the  discretion  of  the 
court.  On  the  trial  of  an  indictment  for  an 
assault  with  intent  to  kill,  after  the  evi- 
dence was  submitted,  the  prosecuting  attor- 
ney opened  the  case  to  the  jury.  After  he 
had  got  through,  the  prisoner's  counsel  de- 
clined to  address  them,  whereupon  the  court 
permitted  the  assistant  of  the  prosecuting 
attorney  to  address  them.  Held  no  error. 
State  V.  Waltham,  48  Mo.  55. 

252.  Right  and  duty  of  judge  to  direct 
as  to  the  remarks  of  counsel.  It  is  error 
in  tlie  court,  when  objection  is  made,  to 
allow  counsel  to  comment  in  their  argument 
to  the  jury  on  facts  not  proved.  Mitchum 
V.  State,  11  Ga.  615.  But  where  incom- 
petent evidence  has  been  given  without  ob- 
jection, counsel  may  rightfully  comment 
upon  it  in  summing  up.  Free  v.  State,  1 
McMullan,  494. 


TRIAL. 


Gi; 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


253.  On  a  trial  for  murder,  counsel  for  the 
prosecution  commented  on  the  frequent 
occurrence  of  murder  in  the  community, 
and  the  formation  of  vigilance  committees 
and  mobs,  remarking  that  the  same  were 
caused  by  the  laxity  of  the  administration 
of  the  law,  and  stating  to  the  jury  that  they 
ought  to  make  an  example  of  the  defendant. 
The  defendant  objected  to  such  comments 
because  there  was  no  evidence  of  such  mat- 
ters before  the  jury,  but  the  court  said  they 
"were  proper  subjects  for  comment.  Held 
error.     Ferguson  v.  State,  49  Ind.  33. 

254.  The  permitting  an  irrelevant  argu- 
ment is  not  ground  for  exception  unless  the 
jury  were  erroneously  instructed  in  relation 
to  it.     Com.  V.  Byce,  8  Gray,  461. 

255.  A  judge  has  a  right  to  stop  counsel 
who,  in  remarking  upon  the  evidence,  grossly 
abuses  a  witness.  State  v.  Williams,  65  N. 
C.  505. 

256.  Reading  books  by  counsel.  The 
court  may  refuse  to  permit  counsel  to  read 
from  law  books  in  their  argument  to  the 
jury.     Murphy  v.  State,  6  Ind.  499. 

257.  It  is  not  error  for  the  court  to  per- 
mit counsel  to  read  extracts  from  a  law  work 
as  a  part  of  his  argument,  the  court  inform- 
ing the  jury  that  such  extracts  are  not  to  be 
regarded  by  them  as  evidence.  Harvey  v. 
State,  40  Ind.  516. 

258.  Although  it  is  permissible  for  coun- 
sel, by  way  of  illustration,  to  read  to  the 
jury  reported  cases  or  extracts  from  text 
books,  yet  it  is  the  duty  of  the  court  to 
check  promptly  any  effort  of  counsel  to  in- 
duce the  jury  to  take  the  law  of  the  case 
from  the  books  rather  than  from  the  court. 
People  v.  Anderson,  44  Cal.  65. 

259.  Counsel  remarking  upon  refusal  to 
answer  or  omission  of  witness.  Where  a 
witness  was  asked  on  cross-examination 
whether  he  had  not  been  convicted  and 
punished  for  an  infamous  crime,  and  he 
declined  to  answer,  it  was  held  that  such 
refusal  might  be  urged  by  counsel  in  ad- 
dressing the  jury  as  warranting  the  infer- 
ence that  the  witness  was  unworthy  of 
credit.  State  v.  Garrett,  Busbee,  357.  But 
the  mere  omission  of  a  witness  on  a  trial  for 
murder  to  state  a  fact,  or  stating  it  less  fully 


before  the  coroner,  is  not  a  subject  for  com- 
ment to  the  jury,  unless  the  attention  of  the 
witness  was  particularly  called  to  it  at  the 
inquest.     Com.  v.  Hawkins,  3  Ga.  46-3. 

260.  Correction  of  misstatements.  Coun- 
sel has  a  right  to  correct  misstatements  of 
the  evidence  made  by  his  adversary,  and  it 
is  improper  for  the  court  not  to  allow  the 
correction  to  be  made.  Long  v.  State,  13 
Ga.  293. 

{e)    Charge  of  judge. 

261.  To  be  given  when  the  case  is  sub- 
mitted. After  the  testimony  on  a  trial  for 
assault  and  battery  was  closed,  the  court 
called  the  next  case  on  the  docket,  which 
was  against  another  defendant  for  misde- 
meanor, the  same  jury  were  sworn,  and  after 
the  testimony  in  the  second  case  was  finished 
the  jury  were  instructed  as  to  the  law  of  the 
first  case.  Held  error.  State  v.  Devlin,  25 
Mo.  174. 

262.  How  to  be  construed.  The  language 
of  the  charge  of  the  court  is  to  be  construed 
in  the  light  of  the  evidence  to  which  it  was 
applied,  and  as  it  w^ould  naturally  be  under- 
stood by  the  jury.  People  v.  Bransby,  33 
N.  Y.  525. 

263.  Must  embrace  whole  case.  Where 
the  case  has  several  aspects,  some  favorable 
to  the  prisoner,  it  is  error  in  the  court  to 
present  to  the  jury  only  the  view  unfavora- 
ble to  him.  State  v.  Gentry,  3  Jones,  406. 
Where  the  instructions  on  a  material  point 
are  contradictory,  there  should  be  a  new 
trial.   People  v.  Anderson,  44  Cal.  65. 

264.  Where  an  instruction  grouped  to- 
gether certain  prominent  facts  which  the 
evidence  conduced  to  prove,  and  irrespec- 
tive of  others,  stated  them  hypothetically 
to  the  jury,  as  constituting  sufl3cient  grounds 
for  finding  the  defendant  guilty  of  murder, 
it  was  held  error.  Williams  v.  Com.  9 
Bush,  Ky.  274. 

265.  But  where  on  a  trial  for  grand  lar- 
ceny, the  court  grouped  together  and  recited 
to  the  jury  facts  all  of  which  bore  against 
the  defendant,  it  was  held  that  the  instruc- 
tion was  not  necessarily  erroneous,  as  it 
was  competent  for  the  defeodant  to  ask  and 
have  given   an  instruction  embodying  the 


C14 


TEIAL. 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


facts   in   his  favor.     State  v.  Carnahan,  17 
Iowa,  356. 

266.  To  be  confined  to  actual  facts.  It  is 
error  for  tlie  court  to  state  to  the  jury  a 
purely  hypothetical  case,  and  ask  them  what 
is  the  presumption  in  such  a  case.  McAlpine 
V.  State,  47  Ala.  78. 

267.  Should  present  the  case  in  all  its 
aspects.  If  the  facts  proved  are  capable  of 
two  constructions,  or  if  in  one  view  of  the 
evidence  a  particular  intent  might  be  found, 
and  yet  the  facts  might  justify  the  finding 
of  an  intent  involving  another  degree  of 
guilt,  the  court  is  bound  upon  the  request 
of  the  prisoner,  to  declare  the  rule  of  law 
applicable  to  the  case  in  either  aspect.  Fos- 
ter V.  People,  50  N.  Y.  598. 

268.  Omissions  in.  The  omission  to  instruct 
the  jury  that  the  evidence  does  not  prove 
the  offense  laid  in  the  indictment,  is  ground 
of  exception.  Com.  v.  Merrill,  14  Gray, 
415. 

269.  It  is  not  error  in  the  court  to  omit 
to  charge  the  jury  as  to  the  rules  of  law 
applicable  to  circumstantial  testimony.  That 
is  a  matter  in  the  discretion  of  the  court, 
and  no  error  is  committed  unless  it  gives 
instructions  which  may  mislead.  State  v. 
Eoe,  12  Vt.  93. 

270.  On  the  trial  of  an  indictment  upon 
a  statute,  the  coui't  need  not  instruct  the 
jury  whether  the  charge  could  be  sustained 
at  common  law.  State  v.  Hart,  34  Maine,  36. 

271.  Omitting  to  charge  as  to  degree 
of  ofiense.  It  is  proper  that  the  judge 
should  instruct  the  jury  as  to  what  consti- 
tutes the  several  degrees  of  crime  included 
in  the  indictment ;  but  the  mode  and  extent 
of  doing  it  is  in  his  discretion.  State  v. 
Conley,  39  Maine,  78. 

272.  Where  on  a  trial  for  murder,  the 
judge  in  charging  the  jury  did  not  instruct 
them  as  to  the  various  degrees  of  murder 
in  the  second  degree  and  .of  manslaughter, 
but  told  them  if  they  had  doubt  as  to  which 
degree  of  murder  the  defendant  was  guilty 
they  should  convict  of  the  lesser  degree,  and 
if  they  had  doubts  of  the  intent  to  take  life 
they  could  convict  of  one  of  the  lesser  de- 
grees, it  was  held  that  although  if  the  defi- 
nition of  the  ofi"euse  had  been  o-iven  to  the 


jury,  they  would  more  clearly  have  seen  the 
distinction  between  it  and  murder,  yet  that 
there  was  no  error.  Manuel  v.  People,  48 
Barb.  548. 

273.  Attention  of  court  must  be  called 
to  omission.  Where  the  charge  of  the 
court  is  correct  as  far  as  it  goes,  if  the  pris- 
oner desires  a  more  full  instruction  on  any 
point,  he  must  ask  for  it.  Dow  v.  State,  23 
Ala.  23.  But  if  the  court  withdraw  from 
the  jury  material  evidence,  it  will  be  error. 
Holmes  v.  State,  23  Ala.  17. 

274.  If  the  court  in  admitting  evidence 
for  a  specific  purpose,  omit  to  limit  it  to 
such  purpose,  it  is  the  duty  of  counsel  to 
call  attention  to  the  fact  and  to  request  a 
proper  charge  on  the  point ;  otherwise,  all 
objection  will  be  waived.  People  v.  Col- 
lins, 48  Cal.  277 ;  State  v.  Conley,  supra. 

275.  No  omission  or  failure  of  the  judge 
to  charge  the  jury  upon  a  particular  point  of 
law,  will  be  sustained  as  error,  unless  his  at- 
tention be  specially  called  to  it.  Cato  v. 
State,  9  Fla.  163 ;  State  v.  Reed,  63  Maine, 
129  ;  State  v.  O'Neal,  7  Ired.  251. 

276.  Refusal  to  charge  as  to  reasonable 
doubt.  The  refusal  of  the  court  to  charge 
the  jm-y  that  the  evidence  must  satisfy  them 
beyond  a  reasonable  doubt  of  every  fact 
necessary  to  establish  the  j)risoner's  guilt, 
will  be  ground  for  a  new  trial.  Walker  v. 
State,  49  Ala.  398. 

277.  The  court  is  not  required  to  select 
each  fact  constituting  an  offense,  and  to 
charge  the  jury  if  they  have  a  reasonable 
doubt  of  that  fact,  they  must  acquit — but 
only  to  charge  generally  that  they  must 
acquit,  if  on  the  whole  case  they  have  a  rea- 
sonable doubt  of  the  prisoner's  guilt.  State 
V.  Dunn,  18  Mo.  419. 

278.  AVhen  the  facts  showing  the  guilt  of 
the  accused  are  clearly  established,  it  is  not 
error  in  the  court  to  refuse  to  charge  the 
jury  as  to  the  legal  efl'ect  of  a  doubt.  Pil- 
kenton  v.  State,  19  Texas,  314, 

279.  Where  there  is  positive  evidence 
against  the  accused,  it  is  proper  for  the 
court  to  refuse  to  charge  that  the  case 
being  one  of  circumstantial  evidence,  the 
jury  must  acquit  unless  the  circumstances 
excluded  any  other  hypothesis  except  that 


TRIAL. 


615 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


of  the  prisoner's  guilt,  as  that  would  assume 
that  the  positive  evidence  was  unworthy  of 
credit.     People  v.  Kaatz,  3  Parker,  129. 

280.  Refusal  to  charge  as  to  effect  of 
false  testimony.     A  refusal  to  charge  the 
jur}-  as  follows,  held  error:  "If  the  jury  be- 
lieve from  all  the  evidence  that  the  witness  ! 
M.  has  testified  falsely  in  respect  to  any  ma- ' 
terial  fact,  it  is  their  duty  to  disregard  the  i 
whole  of  her  testimony."  Campbell  v.  State, 
3  Kansas,  488. 

281.  Refusal  to  instruct  just  as  re- 
quested. When  a  proper  and  legal  request 
is  made  to  the  court  to  charge  the  jury,  the 
party  making  such  request  has  a  right  to 
have  the  instructions  prayed  for  given  to 
the  jury  in  the  manner  requested.  Davis  v. 
State,  10  Ga.  101. 

282.  The  prisoner  is  entitled  to  have  writ- 
ten instructions  asked  for  by  him,  given  in 
the  very  terms  asked,  if  correct ;  and  it  is 
error  to  refuse  them,  though  charges  similar 
in  principle  have  already  been  given.  Wil- 
liams V.  State,  47  Ala.  659. 

283.  On  a  trial  for  robbery,  the  evidence 
tended  to  establish  the  alleged  offense ;  but 
the  prisoner  gave  testimony  in  his  own  be- 
lialf  which,  if  believed  by  the  jury,  would 
have  justified  a  conviction  for  a  lesser  oftense. 
At  the  close  of  the  charge,  to  which  no  ex- 
ceptions were  taken,  the  counsel  for  the 
prisoner  requested  the  court  "  to  charge  the 
jury  that  they  can  render  a  verdict  of  guilty 
of  larceny  from  the  person,  or  of  an  assault 
and  battery."'  To  this  request  the  court 
re.sponded  by  saying :  "  It  is  in  your  power 
to  find  this  man  guilty  of  arson  in  setting 
:fire  to  the  City  Hall ;  you  are  only  to  find 
such  a  verdict  as  the  facts  that  have  been 
proven  before  you  will  justify."  Held,  that 
as  the  charge  must  be  deemed  adverse  to  the 
prisoner,  and  therefore  legally  injurious  to 
him,  he  was  entitled  to  a  nevv  trial.  Murphy 
V.  People,  5  N.  Y.  Supm.  K  S.  303. 

284.  When  request  to  charge  is  only  in 
part  correct.  It  is  not  error  in  the  judge 
to  refuse  to  charge  as  requested,  when  a 
part  of  the  request  is  right  and  a  part  wrong. 
Tomlinson  v.  People,  5  Parker,  313. 

285.  When  an  exception  is  relied  upon  for 
refusing  to  charge  as  requested,  the  request 


must  be  proper  as  an  entjrety.  If  it  em- 
braces an  idea  or  view  which  ought  not  to 
be  presented,  it  destroys  the  value  of  the 
exception,  although  a  part  of  the  legal  prop- 
osition embraced,  if  detached  and  presented 
sejiarately,  might  be  proper.  People  v. 
Holmes,  6  Parker,  25. 

286.  It  is  not  the  duty  of  the  court  to 
eliminate  the  errors  in  a  requested  instruc- 
tion— to  select  a  portion  and  refuse  the 
residue.  Where  on  the  trial  of  a  married 
woman  for  being  a  common  seller  of  intoxi- 
cating liquors,  the  judge  was  asked  to  charge 
the  jury  that  "if  any  of  the  sales  were 
made  by  the  wife  in  the  presence  of  her 
husband,  she  would  be  presumed  to  act 
under  the  coercion,  compulsion,  or  direction 
of  her  husband,  and  would  not  be  liable  for 
such  sales,"  it  was  held  that  the  instruction 
was  properly  refused ;  the  presumijtion  that 
the  wife  committed  the  ofiiense  by  the 
coercion  of  the  husband  being  slight  and 
susceptible  of  rebuttal.  State  v.  Cleaves, 
59  Maine,  298. 

287.  Refusing  to  charge  the  same  prop- 
osition over  again.  If  the  court  refuses 
a  charge  once  clearly  given,  on  the  ground 
that  it  has  already  given  it  in  difi'erent  terms, 
it  should  distinctly  inform  the  jury  that 
this  is  the  reason  for  the  refusal ;  otherwise, 
the  refusal  will  be  error.  People  v.  Harley, 
8  Cal.  890;  affi'd.  People  v.  Ramirez,  13  lb. 
172;  People  v.  Williams,  17  lb.  142. 

288.  Refusing  to  charge  abstract  prop- 
osition. The  court  may  refuse  to  instruct 
the  jury  on  an  abstract  proposition  of  law. 
Daniel  v.  State,  8  Smed.  &  Marsh.  101; 
Corbin  v.  Shearer,  3  Gilman,  482;  Pate  v. 
People,  lb.  644;  Long  v.  State,  12  Ga.  293; 
and  where  an  instruction,  as  asked,  requires 
a  qualification,  or  explanation,  it  may  be 
refused.  Swallow  v.  State,  22  Ala.  20; 
Baxter  v.  People,  3  Gilman,  368;  Preston  v. 
State,  25  Miss.  383 ;  State  v.  Rash,  12  Ired. 
382. 

289.  The  request  to  charge  an  abstract 
proposition  should  be  refused,  although  the 
proposition  itself  be  correct.  Murray  v. 
State,  18  Ala.  727 ;  People  v.  Cunningham, 
1  Denio,  524 ;  Morris  v.  State,  25  Ala.  57. 

290.  It  is  not  erroneous  in  the  judge  to 


GIG 


TRIAL. 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


refuse  to  charge  that  if  the  grand  jury  knew 
at  the  finding  of  the  indictment  whom  the 
prisoner  intended  to  defraud,  he  could  not 
be  convicted  of  an  intent  to  defraud  persons 
unknown,  when  there  is  no  evidence  in  the 
case  to  show  that  the  grand  jury  had  any 
such  knowledge.  People  v,  Noakes,  5 
Parker,  291. 

231.  Instruction  need  not  be  given  as  to 
what  is  obvious.  The  court  is  not  required 
to  instruct  the  jury  as  to  matters  of  which 
they  are  su^jposed  to  possess  a  competent 
knowledge.  It  was  therefore  held  proper 
for  the  court  on  a  trial  for  assault  and  battery 
to  refuse  to  charge,  that  an  unloaded  pistol, 
and  a  pistol  without  a  cap  was  not  a  deadly 
weapon.     Flournoy  v.  State,  16  Texas,  31. 

292.  Charging  as  to  probabilities.  When 
the  jury  being  unable  to  agree  come  into 
court  for  further  instructions,  it  is  not  error 
for  the  judge  to  remark,  that  it  is  more 
probable  the  recollection  of  a  majority  of 
the  jury  is  correct  than  that  of  the  minority. 
State  V.  Blackwell,  9  Ala.  79. 

293.  But  it  is  not  proj)er  to  charge  the 
jury  that  upon  the  doctrine  of  chances,  it  is 
more  probable  that  the  defendants  are  guilty 
than  that  they  are  innocent,  even  if  the 
probabilities  are  as  one  million,  or  any  in- 
definite number,  in  favor  of  their  guilt  to 
one  in  favor  of  their  innocence.  Lyons  v. 
People,  68111.  371. 

294.  Presenting  to  jury  considerations 
of  public  policy.  The  following  instruction 
on  a  trial  for  murder,  was  held  erroneous : 
That  "  cases  of  murder  were  fearfully 
numerous;  that  a  conviction  on  a  charge  of 
murder,  had  ceased  to  be  a  cause  of  excite- 
ment, and  had  become  a  common  aflair  of 
almost  daily  occurrence ;  that  confinement 
in  the  State  penitentiary  for  life  was  no 
adequate  jjunishment  for  the  crime  of  mur- 
der, and  that  juries  had  no  right  to  qualify 
their  verdict  unless  there  were  mitigating 
circumstances;  that  convicts  in  the  peni- 
tentiary seldom  served  out  their  term  when 
confined  there  for  life  ;  that  a  late  governor 
had  pardoned  almost  every  body,  and  that 
convicts  were  always  in  the  hope  that  after 
a  few  years  they  would  appeal  to  a  clement 
executive,  and    that    nothing    but    capital 


punishment  would  put  a  stop  to  the  practice 
now  common  of  man  and  woman  killing ; 
that  he  the  judge,  had  been  told  by  prisoners 
in  the  penitentiary,  that  they  hoped  in  a 
short  time  to  get  out."  State  v.  Melvin,  11 
La.  An,  535. 

295.  On  a  trial  for  murder,  under  a  statute 
permitting  the  jury  to  qualify  their  verdict 
by  adding  thereto  "without  capital  punish- 
ment," the  following  instruction  was  held 
erroneous:  "Murder  is  of  very  frequent 
occurrence  in  this  community,  and  when  a 
jury  has  a  case  of  murder  which  is  clearly 
made  out,  the  court  believes  it  necessary  for 
a  jury  to  bring  in  an  unqualified  verdict,  in 
order  to  deter  others  from  crime."  State  v. 
Shields,  11  La.  An.  395. 

296.  Where,  on  a  trial  for  grand  larceny, 
the  prisoner  not  having  put  his  character 
in  issue,  there  was  no  evidence  tending  to 
show  that  he  had  committed  other  crimes, 
the  following  instruction  was  held  erro- 
neous :  ''  It  is  but  wise  and  judicious  that 
you  should  inquire  what  manner  of  criminal 
he  is.  Is  he  young  in  crime  as  he  is  in 
years  ?  Has  he  been  seduced,  and  led  into 
this  crime  ?  Or  is  he  young  in  years  and 
old  in  crime — well  versed  in  all  the  cunning 
and  shrewdness  of  an  old  criminal  ?  "If  so, 
you  owe  a  duty  to  society  to  remove  from 
its  midst  a  dangerous  criminal."  Barker  v. 
State,  48  Ind.  163. 

297.  Charging  as  to  punishment.  The 
following  charge  to  the  jury,  on  a  trial  for 
robbery,  was  held  no  ground  for  a  new  trial : 
"A  crime  of  this  kind  is  generally  perpe- 
trated at  night ;  but  this  was  in  broad  day- 
light, at  half-past  ten  o'clock,  in  one  of  our 
public  thoroughfares;  a  child  taken  into  an 
alley,  knocked  down,  and  robbed.  If  the 
prisoners  are  guilty,  they  deserve  a  severity 
of  pmiishment  greater  than  any  imposed  at 
this  term  on  any  person  tried.  There  is 
some  excuse  at  night  when  an  attack  of  that 
kind  is  made,  but  it  is  a  much  graver  of- 
fense, and  requires  graver  consideration, 
where  they  are  so  desperate  as  to  make  it 
in  broad  daylight."  McGrory  v.  People,  48 
Barb.  466. 

298.  Whei'e,  on  a  trial  for  murder,  the 
judge,  after  telling  the  jury  that  the  gov- 


TRIAL. 


017 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


ernor  of  New  York  had  not  issued  any 
warrant  of  execution  under  the  law  of  18G0, 
and  that  the  Court  of  Aj)peals  had  advised 
that  it  was  inexpedient,  instructed  them 
that  "they  had.  nothing  to  do  with  the 
question  of  punishment  which  followed  their 
verdict  of  conviction  of  murder  ;  that  that 
belonged  to  the  law,  and  not  to  them,  to 
decide,"  it  was  held  there  was  no  error. 
Done  V.  People,  5  Parker,  364. 

299.  Referring  jury  to  their  personal 
experience.  It  is  not  erroneous  to  charge 
the  jury  that  in  arriving  at  a  correct  vei'- 
dict,  they  may  consult  their  general  knowl- 
edge and  experience.  Roseubaum  v.  State, 
33  Ala.  854.  But  it  is  not  proper  to  charge 
them  that  they  may  rely  upon  their  ex- 
perience as  proof.  On  a  trial  for  keeping 
intoxicating  liquors  for  illegal  sale,  it  ap- 
peared that  the  complaint  and  warrant  al- 
leged that  the  liquors  were  kept  and  de- 
posited in  a  certain  south  store,  and  the 
evidence  tended  to  show  they  were  found 
by  the  ofBcer  serving  the  warrant  in  the 
second  story  of  the  building.  The  judge 
charged  the  juiy  that  they  must  be  satisfied 
beyond  a  reasonable  doubt  that  said  second 
story  was  a  part  of  said  south  store,  and 
that  they  would  judge  from  the  evidence  in 
the  case,  with  their  knowledge  or  experience 
as  practical  men,  as  to  how  rooms  or  stores 
on  the  ground  floor,  and  rooms  above  in  the 
second  story  are  generally  used  by  mer- 
chants— whether  said  second  story  was,  in 
point  of  fact,  a  part  of  said  south  store. 
Held,  that  as  the  instruction  might  be  con- 
strued as  authorizing  the  jury  to  act  on  their 
own  knowledge  or  experience  as  evidence, 
it  was  erroneous.  State  v.  Bartlett,  47 
Maine,  388. 

300.  Calling  attention  to  character  of 
wound.  On  a  trial  for  mayhem  of  a  slave, 
it  was  proved  that  the  defendant  shot  the 
slave  in  the  leg,  rendering  its  amputation 
necessary,  and  that  the  shot  seemed  to  go 
together,  making  a  continuous  wound.  The 
court  charged  the  jury  that  as  there  was  no 
proof  of  the  distance  between  the  prisoner 
and  the  slave  when  the  wound  was  inflicted, 
they  miglit  look  to  the  character  of  the 
wound,    for    the    purpose    of   determining 


whether  the  prisoner  fired  the  gun  with  the 
view  of  striking  and  disabling  the  leg.  Esk- 
ridge  v.  State,  2-5  Ala.  30. 

301.  Charging  erroneous  legal  proposi- 
tions. Where  the  court  charged  the  jury 
that  the  words  "  knowingly  and  willfully  " 
were  the  equivalents  of  "purposely  and 
maliciously,"  and  that  if  the  defendant 
shot  H.  knowingly  and  willfully,  with  the 
intent  and  design  to  kill  him,  he  was  no^ 
only  guilty  of  an  assault  and  battery,  but  of 
an  intent  to  murder,  it  was  held  error,  as  it 
excluded  the  idea  that  one  may  knowingly 
and  willfully  kill  another  in  self-defense. 
Long  V.  State,  46  Ind.  582. 

302.  An  instruction  on  a  trial  for  ri^pe 
which  characterizes  a  statement  made  by 
the  defendant  the  next  morning  after  the 
occurrence,  that  he  had  sexual  intercourse 
with  the  prosecutrix  the  night  before,  as  a 
confession,  is  erroneous.  Hogan  v.  State, 
46  Miss.  274. 

303.  Where  the  court  charged  the  jury 
that  contradictory  statements  in  dying  dec- 
larations were  not  governed  by  the  same 
rules  of  evidence  as  similar  statements  made 
by  a  witness  in  court,  it  was  held  error. 
McPherson  v.  State,  9  Yerg.  279. 

304.  Where  the  court  charged  the  jury 
that  a  man  who  takes  property,  claiming  it 
for  himself  or  another,  commits  no  lar- 
ceny, it  was  held  that  the  instruction  was 
inaccurate,  a  mere  false  claim  of  property 
not  being  sufficient  to  negative  the  criminal 
intent.     State  v.  Ware,  10  Ala.  814. 

305.  A  charge  of  the  court  which  may  be 
divided  into  two  propositions  not  neces- 
sarily connected,  either  of  which,  when  so 
separated,  is  applicable  to  the  evidence,  is 
erroneous.     Martin  v.  State,  47  Ala.  504. 

306.  Where  charge,  though  erroneous, 
can  do  no  harm.  Where,  on  a  trial  for 
rape  on  a  child  less  than  ten  years  old,  the 
court  ruled  that  the  jury  were  not  at  liberty 
to  find  the  prisoner  guilty  of  assault  and 
battery,  it  was  held  that  whether  this  ruling 
was  correct  or  not,  as  it  merely  precluded 
the  State  from  holding  him  for  the  minor,  if 
it  failed  to  establish  against  him  the  major 
offense,  it  was  not  a  ground  of  exception. 
State  V.  Black,  63  Maine,  210. 


618 


TRIAL. 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


307.  Charging  as  to  presumptions.    The 

followiug  instruction  Avas  held  erroneous : 
"  If  j-ou  believe  from  the  evidence  that  the 
defendant  and  J.  S.  were  together  the  day 
before  the  larcenj^  was  committed,  and  kept 
together  up  to  eight  o'clock  the  night  the 
horses  were  stolen,  you  have  a  right  to  infer 
the  larceny  was  committed  by  them  jointly." 
Hall  V.  State,  8  Ind.  439. 

308.  It  is  erroneous  to  charge  the  juiy  on 
a  trial  for  receiving  stolen  goods,  that  the 
discovery  of  the  goods  in  possession  of  the 
defendant  shortly  after  they  were  missed, 
and  his  denial  that  he  had  them,  is  presump- 
tive evidence  that  he  received  them  know- 
ing them  to  have  been  stolen.  Sartorius  v. 
State,  24  Miss.  602. 

309.  It  is  erroneous  for  the  court  to  charge 
the  jury  that  if  the  prisoner  has  omitted  to 
avail  himself  of  evidence  within  his  reach, 
which  might  have  explained  that  which  was 
against  him,  it  is  a  presumption  that  the 
charge  is  well  founded.  Doty  v.  State,  7 
Blackf.  427. 

310.  Where  an  instraction  proceeds  upon 
the  supposition  that  there  were  other  facts 
in  the  case  exculpatory  in  their  character, 
and  then  states  that  the  jury  may  regard  the 
failure  of  the  defendant  to  prove  such  facts 
as  evidence  of  guilt,  it  is  error.  Clem  v. 
State,  43  Ind.  420. 

311.  The  following  instruction  was  held 
erroneous,  in  being  too  broad,  in  not  having 
added  to  it  the  words  "  unless  corrobora- 
ted:" "  If  the  jury  believe,  from  the  evi- 
dence, that  the  defendant,  or  any  other  wit- 
ness, has  intentionally  sworn  falsely  as  to  one 
matter,  the  jury  may  properly  reject  his 
whole  statements  as  unworthy  of  belief." 
Peak  V.  People,  76  111.  289. 

312.  On  the  trial  of  an  information  for  an 
aggravated  assault,  an  instruction  that  if  the 
authorities  who  were  concerned  in  a  former 
prosecution  for  the  same  offense  got  it  up 
imder  the  belief  that  a  bench  warrant  had 
been  issued  for  the  arrest  and  trial  of  the  de- 
fendants for  the  same  offense  for  the  purpose 
of  screening  them  from  punishment,  the  pro- 
ceedings were  fraudulent  and  void  ;  was  held 
•erroneous,  it  not  being  intimated  that  there 
was  any  privity  between  the  public  authori- 


ties and  the  defendants,  or  any  fraud  on  the 
part  of  the  latter.  State  v.  Reed,  26  Conn.202. 

313.  Instruction  as  to  eflfect  of  proof  of 
good  charactsr.  It  is  error  to  charge  the 
jury  that  where  the  question  is  one  of  great 
and  atrocious  criminality,  evidence  of  good 
character  and  of  a  man's  habitual  conduct 
under  common  circumstances,  must  be  con- 
sidered far  inferior  to  what  it  is  in  accusa- 
tions of  a  lower  grade.  The  attending  cir- 
cumstances must  determine  the  degree  of 
force  which  evidence  of  good  character 
should  have ;  and  it  is  not,  in  ordinary  cases, 
affected  by  the  grade  of  the  offense.  Can- 
cemi  V.  People,  16  N.  Y.  501. 

314.  Instruction  based  on  insufficient 
proof.  It  is  erroneous  to  instruct  the  jury 
to  find  the  defendant  guilty  without  deter- 
mining whether  the  offense  was  committed 
within  the  county  in  which  the  indictment 
was  found,  and  within  the  period  of  time 
covered  l)y  the  indictment.  Farrall  v.  State, 
32  Ala.  557. 

315.  Where  the  evidence  as  set  forth  in  the 
bill  of  exceptions  did  not  show  that  the 
venue  was  proved,  it  was  held  that  an  in- 
struction that  if  the  jury  believed  the  evi- 
dence, they  must  find  the  defendant  guilty, 
was  erroneous.  Brown  v.  State,  27  Ala.  47 ; 
approved,  Huffman  v.  State,  28  Ala.  48; 
Spaight  V.  State,  29  lb.  32. 

316.  Misleading  jury.  Where  the  evi- 
dence against  the  accused  is  wholly  circum- 
stantial, charging  the  jury  that  "they  are 
bound  to  acquit  the  defendant  if  there  is  a 
single  hnk  wanting  in  the  chain  of  evi- 
dence," is  calculated  to  confuse  or  mislead 
the  jury,  and  for  that  reason  should  be  re- 
fused.    Tompkins  v.  State,  32  Ala.  569. 

317.  On  a  trial  for  murder,  the  following 
instruction  was  held  improper,  as  calculated 
to  mislead  the  jury,  and  induce  them  to  be- 
lieve that  the  facts  and  circumstances  point- 
ing to  the  defendant's  guilt  had  been  proved : 
"  It  matters  not,  that  the  evidence  is  circum- 
stantial, or  made  up  from  facts  and  circum- 
stances, provided  the  jury  believe  such  facts 
and  circumstances  pointing  to  the  defend- 
ant's guilt  to  have  been  proved  beyond  a 
reasonable  doubt."'  Otmer  v.  People,  76  111. 
149. 


TRIAL. 


C19 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


318.  Charging  as  to  reasonable  doubt. 
It  is  not  erroneous  for  the  court  to  charge 
the  jury  that  a  reasonable  doubt  "  is  a  doubt 
which  a  reasonable  man  of  sound  judgment, 
■without  bias,  prejudice,  or  interest,  after 
calmly,  conscientiously,  and  deliberately 
•weighing  all  the  testimony,  would  entertain 
as  to  the  guilt  of  the  prisoner."  State  v. 
Reed,  62  Maine,  129. 

319.  It  is  erroneous  to  charge  the  jury 
that  a  reasonable  doubt  must  be  founded  on 
irreconcilable  evidence.  Mackey  v.  Peo- 
ple, 2  Col.  13. 

320.  It  is  erroneous  to  charge  the  jury 
on  a  trial  for  murder,  that  to  warrant  them 
in  finding  a  verdict  of  guilty,  there  must  be 
that  degree  of  certainty  in  the  case,  that 
they  would  act  on  it  in  their  own  grave  and 
important  concerns.  Jane  v.  Com.  2  Mete. 
Ky.  30. 

321.  It  is  improper  to  charge  the  jury  that 
unless  they  believe  from  the  evidence  to  a 
moral  certainty  that  the  defendant  is  guilty, 
they  cannot  convict  him.  McAlpine  v.  State, 
47  Ala.  78. 

322.  Referring  question  of  law  to  jury. 
Instructing  the  jury  that  "if  the  prisoner's 
confessions  were  extorted  from  him  by  any 
soil  of  fear  or  hope  of  favor,  they  must  dis- 
regard such  confessions,"  refers  to  the  jury  a 
question  of  law,  and  is  improper.  Bob  v. 
State,  32  Ala   560. 

323.  Requiring  the  jury  to  receive  the 
law  from  the  court.  In  a  case  where  the 
jury  are  judges  of  'the  law  as  well  as  the 
fact,  it  is  not  erroneous  for  the  court  to 
charge  them  that  the  safer  and  better  way 
in  ordinary  criminal  cases  is  to  take  the  law 
from  the  court,  and  that  they  are  always 
justified  in  doing  so.  State  v.  McDonnell, 
32  Vt.  491. 

324.  Where  the  jury  were  charged  that 
although  they  were  the  judges  of  the  law, 
yet  it  was  their  duty  to  believe  it  as  laid 
down  by  the  court,  it  was  held  proper. 
Carter  v.  State,  2  Carter,  617. 

325.  The  jury  were  instructed  that  it  was 
their  duty  to  apply  the  law  as  given  by  the 
court  to  the  facts  of  the  case,  -that  they 
might  determine  the  law  for  themselves,  but 
that  they  ought  to  be  well  satisfied  in  their 


own  minds  of  the  incorrectness  of  the  law  as 
given  by  the  court  before  assuming  the  re- 
sponsibility of  determining  it  for  themselves. 
Held  error,  as  the  jury  might  be  compelled 
to  bring  in  a  verdict  not  in  accoi'd  with 
their  own  judgment  of  the  law.  Clem  v. 
State,  31  Ind.  480. 

326.  Charging  as  to  the  degree  of  guilt. 

An  instruction  that  the  defendant  and  an- 
other person  "might  both  be  guilty  of  this 
murder,"  is  erroneous,  as  it  intimates  that 
the  offense  is  murder,  which  is  a  question 
of  fact  for  the  jury.  Home  v.  State,  1  Kan- 
sas, 42. 

327.  A  judge  concluded  his  charge  to  the 
jury  as  follows:  "I  would  not  be  satisfied 
with  a  verdict  of  murder  in  the  first  degree, 
nor  would  I  be  satisfied  with  anything  less 
than  a  verdict  of  murder  in  the  second  de- 
gree. If  I  were  on  the  jury,  I  would  bring- 
in  a  verdict  of  murder  in  the  second  degree." 
Held  a  usurpation  of  the  province  of  the  jury. 
Warren  v.  State,  4  Cold.  Teun.  130. 

328.  The  following  charge  was  held  er- 
roneous in  taking  from  the  jury  their  right  to 
decide  for  themselves :  "The  life  or  death  of 
this  man  is  in  your  hands.  There  is  no  middle 
course.  He  must  be  convicted  of  murder  of 
the  first  degree  or  acquitted  of  everything. 
If  your  verdict  is  guilty  of  murder,  you 
must  state  of  the  first  degree.  If  not  guilty, 
you  say  so  and  no  more."  Lane  v.  Com.  59 
Penn.  St.  371. 

329.  The  judge,  when  asked  by  the  defense 
to  charge  the  jury  as  to  the  form  of  the  ver- 
dict, in  a  case  in  which  there  is  any  doubt 
as  to  the  guilt  or  grade  of  guilt,  should  not 
say  in  the  hearing  of  the  jury :  "  I  can't  con- 
ceive how  the  jury  could  find  such  a  verdict 
upon  such  a  state  of  facts,  but  if  they  re- 
quest it  I  will  instruct  them."  Stephens  v. 
State,  47  Ala.  696. 

330.  Judge  improperly  commenting  on 
evidence.  In  Missouri,  it  is  error  for  the 
court  to  comment  on  the  evidence,  unless 
asked  to  do  so  by  both  parties.  State  v. 
Dunn,  18  Mo.  419. 

331.  In  Tennessee,  where  the  court  charged 
the  jury  in  respect  to  matters  of  fact  in  a 
criminal  case,  it  was  held  to  be  a  breach  of 


020 


TKIAL. 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


the  prisoner's  constitutional  rights.    Clayton 
V.  State,  2  Humph.  181. 

332.  Judge  assuming  the  proof  of  facts. 
A  charge  which  assumes  a  fact  to  be  proved 
without  referring  it  to  the  jury  is  erroneous. 
Thompson  v.  State,  47  Ala.  37. 

333.  Where  the  judge  not  only  charged 
the  jury  as  to  the  law  of  the  case,  but  ex- 
pressed his  opinion  in  regard  to  the  facts,  so 
that  there  was  nothing  left  for  the  solution 
of  the  jury,  it  was  held  error.  State  v. 
Green,  5  Rich.  N.  S.  65. 

334.  A  charge  that  the  jury  must  find  the 
defendant  guilty,  when  the  evidence  consists 
of  the  testimony  of  a  single  witness,  is  er- 
roneous.    Huffman  v.  State,  29  Ala.  40. 

335.  Where  the  evidence  is  circumstantial 
and  not  inconsistent  with  the  innocence  of 
the  accused,  it  is  error  to  charge  the  jury 
that  it  is  their  duty  to  convict.  Breen  v. 
People,  4  Parker,  380. 

336.  It  is  erroneous  to  charge  the  jury 
that  "  the  guilt  of  the  defendant  rests  upon 
what  is  known  as  circumstantial  evidence," 
thereljy  assuming  the  defendant's  guilt. 
State  V.  Duffy,  6  Nev.  138. 

337.  It  is  error  in  the  court  to  tell  the  jury 
that  the  evidence  on  the  part  of  the  prosecu- 
tion is  sufficient  to  convict,  and  that  on  the 
part  of  the  defense  insufficient  to  entitle  the 
accused  to  an  acquittal.  Benedict  v.  State, 
14  Wis.  423. 

338.  When  the  evidence  is  conflicting,  a 
charge  based  upon  the  State's  evidence,  and 
indicating  that  the  jury  may  look  to  it  alone 
in  passing  on  the  guilt  or  innocence  of  the 
defendant,  is  improper.  Dill  v.  State,  25 
Ala.  15  ;  Williams  v.  State,  47  lb.  659. 

339.  It  is  error  in  the  court  to  charge  the 
jury  that  the  evidence  of  an  accomplice  is 
corroborated,  that  being  a  question  for  the 
jury.     Nolan  v.  State,  19  Ohio,  131. 

340.  An  instruction  is  erroneous  which  as- 
sumes that  confessions  been  proved  to  have 
been  made  by  the  defendant,  thereby  with- 
drawing from  the  jury  the  duty  of  determin- 
ing whether  any  confessions  had  in  fact  been 
made  by  him.  Cunningham  v.  Com.  9  Bush, 
Ky.  149. 

341.  Where  on  the  trial  of  an  indictment 
for  defacing  and  marking  a  school-house,  the 


court  charged  that  the  prosecution  had 
proved  all  that  was  necessary  with  reference 
to  the  school  district,  it  was  held  error. 
Houston  V.  State,  4  Greene,  437. 

342.  Where  on  a  trial  for  rape  the  judge 
expressed  indignation  that  persons  within 
hearing  did  not  rush  to  the  rescue  of  the 
woman,  and  his  wish  for  an  opportunity  to 
punish  them  for  their  cowardice,  it  was  held 
that  as  he  thereby  intimated  his  opinion  that 
the  violence  was  committed,  the  prisoner 
was  entitled  to  a  new  trial.  State  v.  Brown, 
67  N.  C.  435. 

343.  On  a  trial  for  murder,  the  judge 
charged  the  jury  that  "  in  order  to  make  a 
killing  under  such  circumstances  as  have 
been  proved,  justifiable  homicide,  it  must 
appear  that  the  party  killing  had  retreated 
as  far  as  he  safely  could  at  the  time,  and  in 
good  faith  declined  further  contest,  and  was 
compelled  to  kill  his  adversary  in  order  to 
save  himself  from  death  or  great  bodily 
harm,  which  to  a  reasonable  man  would 
appear  imminent."  Held  that  as  it  assumed 
the  proof  of  material  facts,  it  was  errone- 
ous.    State  V.  Kennedy,  7  Xev.  374. 

344.  Court  improperly  determining 
weight  of  evidence.  When  the  evidence 
is  conflicting,  an  instruction  that  if  the  jury 
believe  the  evidence,  they  must  find  the  de- 
fendant guilty,  is  erroneous.  Arnold  v. 
State,  29  Ala.  46. 

345.  It  is  error  in  the  court  to  single  out 
one  of  several  witnesses,  and  charge  the  jury 
that  if  they  believe  him,  the  homicide  set 
forth  in  the  indictment  is  mmxier.  And  it 
is  error  to  compliment  a  w'itness.  Pound  v. 
State,  43  Ga.  88. 

346.  Where,  on  a  trial  for  murder,  the 
judge  charged  the  jury  that  if  they  believed 
from  all  the  evidence,  that  the  defendant 
had  knowingly  sworn  falsely  in  regard  to 
any  material  point  in  the  case,  they  ought 
to  disregard  his  testimony  on  all  material 
points,  excepting  so  far  as  he  was  corrobo- 
rated by  other  evidence  in  the  case,  it  was 
held  error,  in  usurping  the  province  of  the 
jury  in  determining  the  effect  of  the  evi- 
dence.    Otmer  v.  People,  76  111.  149. 

347.  Where  the  judge  charged  the  jury 
that  evidence  of  the  good  character  of  the 


TRIAL. 


G21 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


prisoner  should  have  great  weight  in  deter- 
mining as  to  his  guilt  or  innocence,  "if  the 
jury  believed  there  was  any  doubt  as  to  his 
guilt,"  it  was  held  error,  the  qualification 
amounting  to  a  declaration  by  the  judge, 
that  there  was  no  doubt  of  the  prisoner's 
guilt.     Jupitz  V.  People,  34  111.  516. 

348.  The  following  instruction  was  held 
erroneous,  as  assuming  that  the  defendants 
made  an  assault  with  intent  to  murder: 
"  If  the  jury  believe  from  the  evidence  that 
A.  and  B.  were  together,  and  acted  in  con- 
cert at  the  time  the  assault  to  murder  was 
made,  they  should  find  them  equally  guilty." 
Bond  V.  People,  39  111.  2G. 

349.  On  a  trial  for  an  assault  with  intent 
to  commit  a  rape,  two  witnesses  testified 
that  the  defendant  upon  being  asked  previ- 
ous to  the  occurrence  if  the  prosecutrix  was 
an  unchaste  woman,  said  that  he  did  not 
know,  "  but  he  was  goiijg  over  to  tiy  her, 
and  if  it  was  all  right,  he  would  tell  them." 
The  defendant  asked  the  court  to  charge  the 
jury  that  if  he  used  this  language  "  in  rant, 
fun,  jest  or  badinage,  the  jury  ought  to  dis- 
regard it  as  a  circumstance  tending  to  show 
his  guilt."  The  court  refused  to  give  the 
instruction  as  asked,  but  gave  it  with  the 
following  addition  after  the  word  "  guilt :  " 
"  but  may  be  considered  by  the  jury  as 
evidence  tending  to  show  that  the  thought 
of  criminal  intercourse  with  the  prosecuting 
witness  was  in  the  defendant's  mind."  Held 
that  the  words  "  criminal  intercourse  "  in 
the  instruction,  were  improper,  and  ground 
for  a  new  trial.  State  v.  Warner,  25  Iowa, 
200. 

350.  An  instruction  that  the  evidence 
points  to  the  existence  of  the  acts  and  intent 
as  charged  in  the  indictment,  beyond  a  rea- 
sonable doubt,  is  tantamount  to  a  charge 
that  it  establishes  the  crime  beyond  a  rea- 
sonable doubt,  and  a  violation  of  the  Con- 
stitution of  Nevada  (art.  6,  §  12),  under 
which  the  court  has  no  right  to  charge  the 
jury  as  to  the  weight  of  evidence.  State  v. 
McGinnis,  5  Nev.  337.  See  State  v.  Duffy, 
6  Ilj.  138. 

351.  The  provision  of  the  Constitution  of 
California  (art.  G,  §  17),  that  "judges  shall 
not  charge  juries  with  respect  to  matters  of 


fact,  but  may  state  the  testimony  and  de- 
clare the  law,"  is  violated  whenever  a  judge 
so  instructs  as  to  force  the  jury  to  a  particu- 
lar conclusion  upon  the  whole  or  any  part 
of  the  case,  or  to  take  away  their  exclusive 
right  to  weigh  the  evidence.  This  was  held 
to  be  the  case  where  the  court  instructed 
the  jury  that  if  the  dying  declarations  of 
the  deceased  were  true,  they  should  find  the 
defendant  guilty ;  the  evidence  connecting 
the  defendant  with  the  offense,  being  mainly 
circumstantial.  People  v.  Ybarra,  17  Cal. 
166. 

352.  An  instruction  on  a  trial  for  murder, 
that  the  dying  declarations  of  the  deceased 
with  regard  to  the  circumstances  which  pro- 
duced his  death,  are  to  be  received  with  the 
same  degree  of  credit  as  the  testimony  of 
the  deceased  would  be,  if  examined  under 
oath  as  a  witness,  is  erroneous ;  it  being  the 
province  of  the  jury  to  determine  the  weight 
to  be  attached  to  them.  State  v.  McCanon, 
51  Mo.  160. 

353.  Ttie  court  charged  the  jury  that 
"the  declarations  of  a  dying  man  are 
worthy  of  more  credence  under  such  cir- 
cumstances than  if  made  under  the  sanctity 
of  an  oath  duly  administered  according  to 
law."  And  after  stating  the  rules  as  to  the 
admissibility  of  a  dying  declaration,  the 
court  added :  "  If  these  facts  appear  from 
the  evidence,  under  the  foregoing  rules  of 
law,  it  becomes  the  highest  testimony 
known,  and  must  receive  full  faith  and 
credit  by  the  jury."  Held  erroneous;  it 
being  the  province  of  the  jury  alone  to  say 
what  credit  shall  be  given  to  such  a  decla- 
ration.    Walker  v.  State,  37  Texas,  366. 

354.  After  the  jury  on  a  trial  for  murder 
had  been  out  several  hours,  they  returned 
into  court  for  further  instructions.  The 
judge  told  them  that  if  they  believed  the 
witnesses,  they  should  convict  of  man- 
slaughter, but  it  was  for  them  to  say  in 
what  degree.  Ueld  error ;  it  being  a  ques- 
tion of  fact  for  the  jury  as  to  whether  man- 
slaughter had  been  proved.  Pfomer  v.  Peo- 
ple, 4  Parker,  558. 

355.  It  is  error  to  charge  that  "  to  reduce 
a  homicide  upon  provocation,  it  is  essential 
that  the  fatal  blow   shall  have  been  given 


G22 


TRIAL. 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge, 


immediately  upon  tlie  provocation  given ; 
for  if  there  be  time  sufficient  for  the  passion 
to  subside,  and  the  person  provoked  kill  the 
other,  this  will  be  murder,  and  not  man- 
slaughter." It  should  be  left  to  the  jury  to 
determine  whether  the  passions  had  actually 
been  quieted.  Ferguson  v.  State,  49  Ind. 
33. 

356.  On  a  trial  for  murder,  according  to 
prisoner's  testimony  the  deceased  had  per- 
sisted in  following  the  prisoner  from  street 
to  street  in  the  night,  with  thleats  and 
abusive  language,  and  finally  seized  him  by 
the  throat,  choked  him  almost  to  suffoca- 
tion, and  refused  to  let  go  after  being 
warned.  The  judge  charged  that  the  hom- 
icide was  not  justifiable  even  if  the  jury  be- 
lieved that  the  facts  and  circumstances  at 
the  time  and  before  the  fatal  shot  were  as 
stated  by  the  prisoner.  Held  error,  as  it 
withdrew  the  question  fi"om  the  jury.  Bur- 
dick  V.  People,  58  Barb.  51. 

357.  On  the  trial  of  a  boy  twelve  years  of 
age  for  murder,  the  court  charged  as  fol- 
lows: "If  the  shooting  took  place  under 
circumstances  showing  that  the  defendant, 
from  his  youth,  was  incapable  of  cool  reflec- 
tion; that  his  mind  was  agitated  so  as  to 
preclude  the  idea  that  he  was  aware  of  the 
enormity  of  his  rash  act,  and  the  serious 
consequences  thereof,  then  his  crime  is 
manslaughter.  Held  erroneous  in  withdraw- 
ing from  the  jury  the  question  of  responsi- 
bility, excepting  so  far  as  it  tended  to  reduce 
murder  to  manslaughter.  Held,  further,  that 
that  there  was  error  in  another  jjart  of  the 
charge  which  placed  the  responsibility  of 
the  defendant  on  the  fact  that  his  capacity 
was  as  good  as  that  of  boys  generally  of  his 
age,  without  proof  that  such  boys  had 
sufficient  discretion  to  understand  the  nature 
of  the  act  with  wliich  the  defendant  was 
charged.     Wusing  v.  State,   33  Texas,  651. 

358.  It  is  erroneous  to  charge  the  jury  on 
a  trial  for  murder  that  if  they  believe  that 
the  accused  voluntarily  confessed  his  agency 
in  the  murder,  they  ought  to  find  him 
guilty,  the  jury  being  the  judges,  from  all 
the  facts,  as  to  w'hether  the  confession  is 
true.     Butler  v.  Com.  2  Duvall,  435. 

359.  Where  the  issue  is  as  to  the  sanitv  of 


the  prisoner,  it  is  erroneous  to  charge  the 
jury  that  they  are  to  determine  whether 
the  prisoner  knew  right  from  wrong,  ajid  if 
he  did,  he  is  to  be  considered  sane.  Free- 
man V.  People,  4  Denio,  9. 

360.  The  following  charge  of  the  judge 
to  the  jury  was  held  ground  for  a  new  trial: 
"It  is  my  opinion  that  you  can  infer  from 
the  defendant's  admission  that  the  pistol 
which  he  shot  had  a  ball  in  it,  inasmuch  as 
he  undertook  to  point  out  the  place  where 
the  ball  struck,  whether  that  was  the  place 
or  not."     Grant  v.  State,  45  Ga.  477. 

361.  An  instruction  on  a  trial  for  assault 
and  battery  that  a  certain  instrument  is  a 
dangerous  weapon,  is  erroneous,  whether  or 
not  it  was  such,  being  a  question  of  fact  for 
the  jury.  Doering  v.  State,  49  Ind.  56.  On 
a  trial  for  murder  by  stabbing,  it  was  lield 
that  an  instruction  was  erroneous  which 
assumed  as  pi'ovedthat  the  knife  used  was 
a  dangerous  weapon,  and  that  it  was  con- 
cealed from  the  deceased.  BeiTy  v.  Com. 
10  Bush,  15. 

362.  An  instruction,  on  the  trial  of  an 
information  against  a  county  treasurer  for 
embezzling  public  funds  in  the  county 
treasury,  that  when  it  has  been  proved  that 
the  funds  reached  the  hands  of  the  officer, 
and  that  the  same  were  not  forthcoming- 
when  demanded,  the  law  presumes  the  il- 
legal conversion  of  such  funds,  and  the 
burden  of  proving  the  contrary  is  on  the 
officer,  is  erroneous,  for  the  reason  that  it 
usurps  the  province  of  the  jury,  who  are  to 
determine  from  the  facts  whether  or  not  the 
accused  converted  the  funds  to  his  own  use. 
State  V.  Smith,  13  Kansas,  274;  State  v, 
Graham,  Tb.  299. 

363.  An  indictment  for  murder  contained 
but  one  count,  which  alleged  that  the  kill, 
ing  was  effected  by  shooting  the  deceased 
with  a  pistol  in  the  head.  The  j^roof  tended 
to  show  that  the  plaintiff  in  error  fired  the 
pistol  two  or  three  times  at  the  deceased, 
inflicting  thereby  two  wounds,  one  upon  the 
head  and  one  upon  thebody,eitlier  of  which 
would  have  been  mortal,  but  failed  to  show 
which  was  first  inflicted,  or  which  actually 
caused  the  death.  It  was  held  no  error  in 
the  refusal  of  the  judge  to  charge  the  jury 


TKIAL. 


623 


Proceedings  in  the  Conduct  of  the  Case. 


Charge  of  Judge. 


that  if  the  proof  failed  to  show  -which 
wound  it  was  that  actually  caused  the  death, 
the  case  was  not  made  out  according  to  the 
indictment.     Real  v.  People,  43  N.  Y.  270. 

364.  Charging  as  to  character  of  evi- 
dence. The  court  charged  the  jury  that 
"  an  alibi  is  a  species  of  defense  often  set  up 
in  criminal  cases,  and  one  which  seems  to 
figure  somewhat  in  this."  Held  error,  the 
language  used  being  calculated  to  convey  to 
the  minds  of  the  jury  the  impression  that 
the  court  regarded  that  particular  defense 
as  a  pretense.  Walker  v.  State,  37  Texas, 
3G6. 

365.  In  Massachusetts,  the  judge  in  charg- 
ing the  jury  told  them  that  in  many  of  the 
cases  which  had  been  tried  at  that  term  of 
court,  "  policemen  had  been  the  principal 
witnesses,  and  he  thought  the  jury  would 
agree  with  him  in  the  opinion  that  in  all 
these  cases  they  had  manifested  great  intel- 
ligence, and  testified  with  apparent  candor 
and  impartiality."  Held  a  violation  of  the 
statute  (Genl.  Stats,  ch.  115,  §  5),  and  that 
the  verdict  must  be  set  aside.  Com.  v. 
Barry,  9  Allen,  276. 

366.  It  is  proper  for  the  court  to  caution 
the  jury  to  take  care  that  no  pretended  case 
of  insanity  be  iiermitted  to  shield  the  de- 
fendant from  the  ordinary  consequences  of 
his  act.     People  v.  Bumberger,  45   Cal.  650. 

367.  Judge  qualifying  his  remarks  as 
to  character  of  evidence.  The  court,  in 
charging  the  jury,  spoke  of  certain  things 
relied  on  for  the  defense  as  "  little  matters  " 
(as  had  also  been  done  by  the  prisoner's 
counsel  in  his  argument  to  the  jury).  But 
the  judge  added  that  in  using  the  expres- 
sion ''it  was  far  from  the  intention  of  the 
court  to  characterize  them  as  small  or 
insufficient,  or  to  indicate  in  what  light  they 
were  to  be  considered  and  weighed  by  the 
jury."  Held  no  ground  for  reversal  of  the 
judgment,  llosenbaum  v.  State,  33  Ala. 
354. 

368.  On  a  trial  for  forging  a  check  on  a 
bank,   the   recorder    charged   the    jury  in 

'substance  that  the  evidence  of  the  prisoner's 
guilt  was  irresistible  to  his  mind,  laying  out 
of  view  the  evidence  of  the  prisoner  in  his 
own  behalf,  but  that  his  opinion  had  notli- 


ing  to  do  with  their  deliberations,  and  they 
must  judge  for  themselves,  irrespective  of 
his  opinion.  Held,  that  although  it  would 
have  been  better  for  the  recorder  to  have 
omitted  the  expression  of  an  opinion,  yet, 
that  the  whole  subject  was  so  submitted,  the 
jury  must  have  decided  the  case  indepen- 
dently.    Watson  V.  People,  64  Barb.  130. 

369.  Calling  attention  of  jury  to  con- 
tradiction in  testimony.  Improbabilities 
in  the  testimony  of  witnesses,  or  their  con- 
tradictory statements,  are  matters  for  the 
jury  to  consider,  and  it  is  improper  for  the 
court  to  comment  upon  them.  State  v. 
Breeden,  58  Mo.  507. 

370.  But  when  a  witness  has  sworu 
differently  upon  the  same  point  on  a  former 
occasion,  his  testimony  shoiild  be  left  to  the 
jury,  under  such  prudential  instructions  as 
may  be  given  by  the  court.  Where  the  court 
called  the  attention  of  the  jury  to  the  self- 
contradiction  of  the  principal  witness,  and 
said  that  it  was  a  strong  circumstance 
tending  to  discredit  her  testimony  on  that 
trial,  but  that  the  amount  of  credit  due  to 
that  testimony  was  a  question  for  them  to 
determine,  adding,  that  if  a  reasonable 
doubt  arose  in  their  minds,  it  was  their  duty 
to  acquit,  it  was  held  that  the  charge  was 
right.     Dunn  v.  People,  29  N.  Y.  523. 

371.  Charging  as  to  construction  of  evi- 
dence. Where  a  physician  testified  that  he 
made  a  professional  examination  of  a  wound 
in  the  prosecutor's  hand,  but  did  not  "  ex- 
amine "  another  wound  in  his  side,  it  was 
held  that  an  instruction,  that  the  jury  might 
consider  "whether  the  witness,  in  saying 
that  he  did  not  examiiie  the  wound  in  the 
side,  meant  that  he  did  not  examine  it  as  a 
physician,  or  that  he  did  not  see  or  look  at 
it  at  all,"  was  not  'erroneous.  Rosenbaum 
V.  State,  33  Ala.  354. 

372.  Instruction  as  to  conclusiveness  of 
proof.  Where  the  proof  is  wholly  positive, 
is  not  error  in  the  court  to  charge  the  jury 
that  if  they  believe  the  witnesses,  it  is  their 
duty  to  find  a  verdict  of  guilty.  Duffy  v. 
People,  5  Parker,  821 ;  affi'd  26  N.  Y.  588. 

273.  It  is  the  duty  of  the  court  to  state 
the  legal  effect  of  a  record  which  is  offered 
to   sustain   the   plea  of  autrefois  acquit   or 


€24 


TKIAL. 


Conduct  of  the  Case. 


Charge  of  Judge. 


Subsequent  Proceedings. 


discontinuance,  and  the  record  itself  cannot 
l)e  impugned  hj  parol  evidence;  and  the 
court  may  instruct  the  jury  that  the  pleas 
are  not  sustained  by  the  proof,  if  it  is  the 
fact.     Martha  v.  State,  26  Ala.  72. 

374.  Charging  jury  how  to  interpret 
instructions.  It  is  error  to  instruct  the 
jury  that  if  they  find  that  there  is  a  conflict 
between  the  special  instructions  asked  for 
by  the  defendant  and  given,  and  the  main 
charge,- the  latter  must  prevail.  If  such  a 
conflict  exist,  the  court  should  either  with- 
draw that  portion  of  the  main  charge  which 
conflicts  with  the  special  charge  asked  or 
refuse  the  special  charge.  Spivey  v.  State, 
26  Ala.  00. 

375.  Charging  jury  as  to  their  duty. 
The  following  instruction  on  a  trial  for 
murder,  was  held  erroneous :  "  Do  simply 
that  duty  which  naturally  presents  itself  as 
you  act  under  your  oath,  and  the  law  and 
the  testimony  before  you,  and  you  cannot 
greatly  err,  whatever  your  verdict."  State  v. 
Ah  Tong,  7  Nev.  148. 

376.  It  is  erroneous  for  the  court  to  charge 
the  jury  that  it  is  their  duty  to  find  an  un- 
qualified verdict,  if  the  case  is  clear ;  for  the 
reason  that  if  the  case  is  not  clear  they  can- 
not find  any  verdict  against  the  prisoner. 
State  V.  Obregon,  10  La.  An.  799. 

377.  It  is  error  to  charge  the  jury  that  if 
any  one  or  more  of  them  diflered  from  the 
majority,  as  to  the  guilt  or  innocence  of  the 
prisoner,  they  might  properly  waive  their 
convictions  and  agree  with  the  majority, 
but  were  not  obliged  to  do  so.  Swallow  v. 
State,  20  Ala.  30. 

378.  Correction  of  charge.  An  erroneous 
instruction  is  not  cured  by  a  correct  instruc- 
tion on  the  same  point.  Mackey  v.  People, 
2  Col.  13.  Where  however,  the  judge  in  his 
charge  to  the  jury  lays  down  erroneous  prop- 
ositions, but  afterward,  upon  his  attention 
being  called  to  them,  lays  down  the  correct 
rule,  no  error  is  presented  for  review.  Eggler 
V.  People,  56  N.  Y.  043.  On  a  trial  for 
murder,  the  judge  in  the  course  of  his  charge 
twice  alluded  to  the  fact  that  the  accused 
was  not  sworn  as  a  witness  in  his  own  be- 
half— once  in  connection  with  the  question 
of  identity,    and  the  narration  of  the  in- 


cidents of  the  homicide,  and  again,  in  con- 
nection with  the  circumstances  claimed  to 
be  suspicious.  The  judge  afterward  told 
the  jury  that  the  prisoner  was  not  bound  to 
be  sworn,  and  that  the  prosecution  must 
make  out  their  case;  but  he  did  not  say 
that  the  prisoner's  omission  to  be  a  witness 
should  not  create  any  presumption  against 
him.  The  judge  however,  upon  his  attention 
being  called  to  his  previous  remarks,  told 
the  jury  that  there  was  no  law  requiring 
the  prisoner  to  be  sworn,  and  that  no  infer- 
ence was  to  be  drawn  against  him  from  the 
fact  of  his  not  being  sworn.  Held  that  the 
error  was  cured  by  the  subsequent  explana- 
tion.    Kuloft"  v.  People,  45  N.  Y.  213. 

379.  An  erroneous  instruction  cannot  be 
corrected  by  another  instruction  which 
states  the  law  accurately,  unless  the  erro- 
neous instruction  be  thereby  plainly  with- 
drawn from  the  jury.  Bradley  v.  State,  31 
Ind.  492;  Kingen  v.  State,  45  lb.  519.  See 
Clarke  v.  State,  53  lb.  67. 

380.  Waiver  of  objection  to  charge. 
When  the  prisoner  asks  the  court  to  charge 
the  jury  upon  a  point  of  law,  he  cannot  after- 
ward object  to  the  court's  charging  them 
on  that  point,  although  the  instruction  is 
unfavorable  to  him.  State  v.  Madison,  33 
Maine,  267. 

381.  Presumption  in  favor  of  charge. 
When  an  affirmative  instruction  is  given 
which  states  a  correct  abstract  proposition 
of  law,  it  will  be  presumed  on  error  or 
appeal,  to  have  been  justified  by  the  proof, 
unless  the  evidence  is  set  out  in  the  bill  of 
of  exceptions.     Morris  v.  State,  25  Ala.  57. 

382.  Time  of  excepting  to  charge.  Ex- 
ceptions to  the  judge's  charge  must  betaken 
at  the  close  of  the  charge,  and  before  the 
jury  retire.     State  v.  Clark,  37  Vt.  471. 

5.  Proceedings  subsequent  to  submitting 
CASE  TO  jury. 

383.  Jury  in  retiring  to  deliberate  tak- 
ing with  them,  or  sending  for,  books.     As 

a  rule,  the  jury  should  not  be  permitted  to 
take  with  them  a  law  book  when  they  retire, 
but  they  may  be  permitted  to  do  so  when 
the  paragraph  applying  to  tlie  case  is  sepa- 


TKIAL. 


625 


Proceedings  Subsequent  to  Submitting  Case  to  Jury. 


rately  marked  out,  as  in  the  case  of  a  statute. 
Hardy  v.  State,  7  Mo.  607. 

384.  Where  the  judge  declined  to  allow 
the  jury  to  take  with  them  to  their  room 
the  Revised  Statutes,  and  the  requests  for  in- 
structions by  the  defendant  (such  requested 
instructions  not  having  been  given  any  fur- 
ther than  the  same  were  embraced  in  the 
general  charge),  it  was  held  j^roper.  State 
v..  Kimball,  50  Maine,  409. 

385.  Where  after  the  conviction  of  the 
defendant  on  the  trial  of  an  indictment  for 
the  violation  of  a  statute,  it  appeared  that 
the  jury  after  retiring  to  deliberate  procured 
through  an  oflicer  in  attendance  upon  them 
a  copy  of  the  Revised  Statutes,  without  the 
knowledge  or  consent  of  the  court  or  coun- 
sel, or  of  the  defendant,  it  was  held  ground 
for  a  new  trial.     State  v.  Smith,  G  R.  I.  33. 

386.  After  the  jury  had  retired  to  deliber- 
ate on  their  verdict,  they  applied  to  the 
officer  in  charge  of  them  to  furnish  them 
with  several  directories  of  the  city  of  New 
York,  which  he  did.  The  circumstance 
being  made  known  to  the  court,  the  jury 
were  recalled  and  directed  by  the  court  to 
retire  to  their  room  and  banish  from  their 
minds  any  information  they  might  have  ob- 
tained from  the  books,  and  to  disregard 
such  information  in  arriving  at  their  verdict. 
Held  that  the  irregularity  was  not  ground 
for  a  new  trial.  U.  S.  v.  Horn,  5  Blatch. 
102. 

387.  Jury  taking  out  with  them  documen- 
tary and  other  evidence.  The  jury  should 
not  be  permitted  to  take  with  them  any  por- 
tion of  the  written  evidence  when  they  retire 
to  deliberate,  unless  the  whole  of  it  is  given 
to  them.     Rainforth  v.  People,  61  111.  365. 

388.  Where  the  jury  when  they  retire  to 
deliberate  improperly  take  out  with  them  a 
j^aper,  it  will  not  be  ground  for  a  new  trial 
unless  it  appear  that  they  were  thereby  im- 
properly influenced.  State  v.  Bradley,  G 
La  An.  554. 

389.  The  fact  that  the  jury  on  a  trial  for 
assault  and  battery  took  with  them  when 
they  retired  to  deliberate  on  their  verdict 
the  papers  in  the  case,  held  not  a  ground 
for  the  reversal  of  the  judgment,  when  it 
was  not  shown  that  any  of  the  jurors  ex- 

40 


amined  the  papers,  or  that  the  defendant 
was  thereby  prejudiced.  State  v.  Gibson, 
29  Iowa,  295. 

390.  It  is  not  error  to  permit  the  jury  on 
a  trial  for  murder,  after  their  return  into 
into  court  for  further  instructions,  to  take 
out  with  them,  at  their  own  request,  papers 
which  had  been  proved  and  commented  on 
at  the  trial.  Udderzook  v.  Com.  76  Penn. 
St.  340. 

391.  Where  on  a  trial  for  murder,  a  dia- 
gram of  the  relative  situation  and  distances 
from  each  other  of  several  places  near  the 
scene  of  the  homicide  was  introduced,  it 
was  held  not  improper  for  the  court  to  per- 
mit the  jury  to  take  it  with  them  in  their 
retirement.     Campbell  v.  State,  23  Ala.  44. 

392.  On  the  trial  of  an  indictment  which 
charged  several  with  feloniously  taking  an 
iron  safe  belonging  to  an  express  company 
from  the  cars  of  the  New  York  and  New 
Haven  Railroad  Company,  with  bank  bills 
and  other  valuables  contained  in  it,  the 
prosecution  produced  a  dark  wooden  box 
made  to  resemble  the  safe,  with  counterfeit 
bank  bills  concealed  in  it,  and  claimed  to 
have  been  used  in  the  perpetration  of  the 
theft.  After  the  judge  had  charged  the 
jury,  this  box  was  by  his  order  delivered  to 
them,  and  taken  by  them  to  their  room 
when  they  retired  to  deliberate.  Held  prop- 
er.    State  V.  Stebbins,  29  Conn.  463. 

393.  Where  the  judge  allowed  the  jury  to 
take  to  their  room  a  bottle  of  liquor  which 
was  introduced  in  evidence,  not  as  the 
liquor  seized,  but  as  manufactured  and  sold 
by  the  same  person  under  the  same  name 
coupled  with  the  instruction  not  to  consider 
the  qualities  of  such  liquor,  unless  they 
should  find  from  the  evidence  in  the  case 
that  it  was  the  same  kind  as  that  seized,  it 
was  held  not  improper.  State  v.  McCatferty, 
63  Maine,  223. 

394.  Jury  taking  out  with  them  or  send- 
ing for  proof  which  was  not  given  on  the 
trial.  After  conviction  of  murder,  it  ap- 
peared that  while  the  jury  were  deliberating 
on  their  verdict,  the  testimony  which  was 
given  on  the  coroner's  inquest,  and  which 
was  not  oflered  in  evidence  on  the  trial,  was 
accidentally  taken  by  the  jury  to  their  room. 


626 


TRIAL. 


Proceedings  Subsequent  to  Submitting  Case  to  Jury. 


Held  not  a  ground  for  a  new  trial.     State  v. 
Tindall,  10  Eich.  213. 

395.  On  a  trial  for  murder,  the  prisoner 
was  defended  upon  the  theory  that  the  de- 
ceased shot  himself  with  a  pistol.  After  the 
jury  had  retired  to  deliberate,  a  pistol  was 
sent  to  them,  without  the  knowledge  of  the 
prisoner,  his  counsel  or  the  court,  as  being 
the  same  pistol  with  which  the  killing  had 
been  done,  though  it  had  not  been  fully 
identified  as  the  one  which  was  found  near 
the  deceased,  and  which  it  had  been  proved 
belonged  to  the  prisoner.  "With  this  pistol 
the  jury  experimented,  which  resulted  in 
their  finding  a  verdict  of  guilty,  they  having 
been  up  to  that  time  equally  divided.  Held 
grouutl  for  a  new  trial.  Yates  v.  People,  38 
in.  527. 

396.  Jury  procuring  a  copy  of  the  in- 
structions. Where,  after  the  jury  had  re- 
tired to  deliberate,  they  sent  for  the  judge's 
charge,  a  copy  of  which  was  sent  to  them 
with  one  word  omitted,  it  was  held  error. 
Holton  V.  State,  2  Fla.  476. 

397.  Officer  in  jury  room.  There  is  no 
rule  which  prohil>its  the  constables  sworn  to 
attend  the  jury,  from  being  present  with  the 
jury  in  the  jury  room  during  their  deliber- 
ation, though  the  practice  is  not  to  be  com- 
mended. People  V.  Hartung,  4  Parker,  256, 
per  Harris,  J. 

398.  Judge  communicating  with  jury 
privately.  After  the  jury  have  retired  to 
deliberate,  the  judge  has  no  more  right  to 
communicate  with  them  than  any  other  per- 
son, except  in  open  court,  in  the  presence  of, 
or  after  due  notice  to  the  prosecuting  attor- 
ney, and  the  prisoner,  or  his  counsel.  Ho- 
berg  v.  State,  3  Minn.  263. 

399.  In  Vermont,  it  has  been  held  that  all 
communications  between  judge  and  jury 
after  a  case  has  been  submitted,  and  while 
the  jury  have  it  under  consideration,  must  be 
in  open  court ;  and  it  is  error  for  the  court 
to  furnish  them  a  copy  of  the  statutes. 
State  V.  Patterson,  45  Vt.  308. 

400.  In  Ohio,  it  was  held  not  imjjroper  for 
the  judge  on  a  trial  for  murder  to  send  to  the 
jury  at  their  request,  the  statutes  of  the 
State  with  a  reference  to  certain    sections 


which  he  had  just  previously  read  to  them. 
Gandolfo  v.  State,  11  Ohio,  N.  S.  114. 

401.  A  written  communication  from  the 
court  to  the  jury  may  be  justified  by  the 
consent  of  the  prisoner's  counsel  that  the 
jury  may  ask  instructions  "  respecting  the 
law,  or  any  evidence  given  in  court."  State 
V.  Bullard,  16  New  Hamp.  139. 

402.  Where  the  judge,  through  the  bailiflf, 
in  the  absence  of  the  defendant  and  his 
counsel  during  a  recess  of  the  court,  with- 
drew erroneous  instructions  which  had  been 
submitted  to  the  jury  in  writing,  and  taken 
by  them  to  their  room,  it  was  held  improper. 
Hall  V.  State,  8  Ind.  439. 

403.  Jury  returning  into  court  for  in- 
formation. It  is  not  proper  for  the  court  to 
permit  any  one  of  the  jurors  while  they  are 
deliberating  to  leave  the  jury  room  and  come 
into  court  and  hold  a  conversation  with  the 
court;  but  the  jury  should  be  brought  into 
court  in  a  body.  Fisher  v.  People,  33  111. 
283.     ■ 

404.  The  court  has  no  right  in  the  absence 
of  the  prisoner,  and  without  the  consent  of 
his  counsel,  to  call  the  jury  to  the  court 
room  after  they  have  retired  to  deliberate, 
and  read  over  to  them  the  written  testimony 
as  taken  down  by  the  court.  Wade  v.  State, 
13  Ga.  25. 

405.  Where  the  jury  after  retiring  to  de- 
liberate, are  called  back  into  court  to  be  fur- 
ther instructed,  the  defendant  is  entitled  to 
the  presence  of  his  counsel,  and  if  the  in- 
struction be  given  in  the  absence  of  such 
counsel,  it  will  be  ground  for  a  new  trial. 
Martin  v.  State,  51  Ga.  567. 

406.  Where  after  argument  of  counsel  on 
a  trial  for  arson,  and  charge  by  the  court, 
the  jury  retired  to  deliberate,  but  subse- 
quently came  into  court,  and  asked  for 
further  instructions,  which  were  given  in  the 
absence  of  the  defendant's  counsel,  the  de- 
fendant being  present,  it  was  held  that  the 
eiTor  was  fatal.  People  v.  Trim,  37  Cal. 
374. 

407.  In  Alabama,  it  was  held  that  the  fact 
that  the  presiding  judge  left  the  bench  while 
the  jury  were  deliberating  on  their  verdict; 
that  the  counsel  engaged  in  the  case  left  the 
court  room  under  an  agreement  that  the  clerk 


TRIAL. 


627 


Proceedings  Subsequent  to  Submitting  Case  to  Jury. 


might  receive  the  verdict  of  the  jury ;  and 
that  the  court  on  tlie  request  of  the  jury  for 
further  instructions,  afterward  gave  them  an 
additional  charge  in  the  presence  of  the 
prisoner,  but  in  the  absence  of  his  counsel, 
and  without  the  knowledge  or  consent  of 
said  counsel,  was  not  a  ground  for  the  re- 
versal of  the  judgment.  Collins  v.  State,  33 
Ala.  434. 

408.  When  the  jury,  after  retiring  to  de- 
liberate, return  into  court  and  ask  the  judge 
as  to  a  fact,  it  is  within  the  discretion  of  the 
court  to  admit  testimony  respecting  the 
matter  of  such  inquiry.  Com.  v.  Ricketson, 
5  Mete.  412. 

409.  On  the  trial  of  an  indictment  for  re- 
tailing intoxicating  liquors,  after  the  jury 
had  deliberated  on  their  verdict  four  hours 
and  a  half,  they  came  into  court  and  stated 
that  they  could  not  understand  alike  the 
testimony.  The  judge  then  sent  for  a  wit- 
ness and  told  the  jury  to  examine  him. 
The  witness  thereupon  repeated  his  testi- 
mony as  near  as  he  could.  The  judge  would 
not  allow  counael  to  interrogate  the  witness, 
ruling  that  it  was  for  the  jury  alone  to  do 
so.  The  counsel  then  became  involved  in  a 
dispute  about  the  testimony  of  the  witness, 
whereupon  the  judge  stated  that  the  witness 
had  before  sworn  that  it  was  within  the  year 
that  the  liquor  was  sold,  and  that  it  was  so 
down  on  his  minutes.  Held  that  there  was 
no  error.     Herring  v.  State,  1  Iowa,  205. 

410.  Persons  talking  to  jurors.  Where 
on  the  trial  of  an  indictment  for  rape,  the 
jury  while  deliberating  on  their  verdict,  were 
taken  by  the  officer  who  had  them  in  charge 
to  a  hotel  for  dinner,  and  while  there  the  pro- 
prietor of  the  hotel  told  some  of  the  jurors 
to  convict  the  defendant,  it  was  held  that  as 
this  was  a  mere  passing  remark  of  the  pro- 
prietor of  the  hotej,  it  did  not  constitute 
misconduct  of  the  jury  entitling  the  defend- 
ant to  a  new  trial.  People  v.  Brannigan,  21 
Cal.  337. 

411.  The  fact  that  on  a  trial  for  murder 
the  oflScer  having  charge  of  the  jury  was 
absent  some  minutes  from  the  room  in 
which  he  had  placed  them,  it  not  appearing 
that  they  were  allowed  to  separate;  that 
some  person  outside  the  jury  room  spoke  to 


a  juror,  and  that  some  of  the  jurors  spoke 
to  two  persons  outside,  it  not  appearing 
what  was  said,  or  that  it  had  any  reference 
to  the  trial;  and  that  after  the  jury  had 
agreed  on  their  verdict,  and  were  brought 
into  the  court  room,  they  were  allowed  to 
remain  there  in  the  presence  of  other  per- 
sons while  the  officer  went  to  the  porch  in 
front  of  the  court  room,  and  waited  some 
minutes  for  the  judge,  it  not  appearing  that 
any  communication  was  had  with  the  jury 
in  the  mean  time,  are  not  sufficient  grounds 
for  a  new  trial.  People  v.  Boggs,  20  Cal. 
432.     See  People  v.  Symonds,  22  lb.  348. 

412.  Improper'  separation  of  jury. 
When  the  jury  after  retiring  to  deliberate, 
separate  without  leave  of  the  court,  the 
prisoner  will  be  entitled  to  a  new  trial  un- 
less it  be  affirmatively  shown  by  the  prose- 
cution that  he  was  not  thereby  prejudiced. 
People  V.  Brannigan,  21  Cal.  337 ;  People  v. 
Symonds,  supra. 

413.  In  New  York,  where  the  jury  sepa- 
rated without  being  legally  discharged, 
after  the  cause  was  committed  to  them,  and 
before  rendering  or  agreeing  upon  a  verdict, 
it  was  held  that  the  court  properly  dis- 
charged them.  People  v.  Reagle,  60  Barb. 
527. 

414.  Consent  of  parties  to  separation  of 
jury,  when  presumed.  Where  the  court 
directs  the  jury  to  bring  in  a  sealed  verdict, 
and  gives  them  permission  to  separate  after 
agreeing  upon  the  same,  the  parties  will  be 
deemed  to  have  consented  to  such  permis- 
sion,  if  no  objection  be  made.  Friar  v. 
State,  3  How.  Miss.  422. 

415.  Eight  of  court  to  discharge  jury. 
When  the  jury  have  deliberated  so  long 
without  finding  a  verdict  as  to  preclude  a 
reasonable  expectation  that  they  will  agree, 
unless  compelled  to  do  so  by  famine  or 
exhaustion,  they  may  be  discharged,  and  the 
prisoner  be  tried  by  another  jury.  People 
V.  Goodwin,  18  Johns.  187;  People  v.  01- 
cott,  2  Johns.  Cas.  301 ;  U.  S.  v.  Coolidge,  3 
Gallison,  364;  Com.  v.  Roby,  12  Pick.  496. 
In  all  such  cases,  the  facts  upon  which  the 
court  exercised  its  discretion  in  discharging 
the  jury,  should  be  spread  upon  the  record; 
otherwise    a    court    of    review    w'ill  pre- 


628 


TRIAL. 


Proceedings  Subsequent  to  Submitting  Case  to  Jury. 


sume  that  the  inferior  court  performed  its 
duty.  State  v.  Waterhouse,  1  Mart.  &  Yerg. 
278. 

416.  Courts  have  a  discretionary  power  in 
all  cases,  to  discharge  the  jury  after  they 
have  deliberated  so  long  without  coming  to 
an  agreement  as  to  satisfy  the  court  that 
further  attempts  to  agree  will  be  unavailing. 
Com.  V.  Townsend,  5  Allen,  216. 

417.  Where  the  jury,  on  a  trial  for  mur- 
der, had  been  kept  together  ^line  days  with- 
out agreeing,  and  the  health  of  one  of  the 
jurors  was  suffering  from  confinement,  while 
the  personal  attendance  of  another  juror 
was  required  by  the  illness  of  his  wife,  and 
the  court  discharged  them,  it  was  held 
proper.     Fell's  Case,  9  Leigh,  613. 

418.  Where  on  a  trial  for  grand  larceny, 
the  jury  were  not  able  to  agree  up  to  the 
last  moment  of  the  term  of  the  court,  it  was 
held  that  they  might  be  discharged,  and  the 
prisoner  be  remanded  to  jail  for  trial  at  the 
next  term.  State  v.  Moor,  Walker,  134. 
And  see  State  v.  Brooks,  3  Humph.  70. 

419.  It  has  been  held  that  in  misde- 
meanor, the  court  may  discharge  the  jury 
without  the  consent  of  the  defendant.  Peo- 
ple V.  Denton,  2  Johns.  Cas.  275 ;  State  v. 
Morrison,  3  Dev.  &  Batt.  115;  Dye  v.  Com. 
7  Graft.  663 ;  State  v.  Weaver,  13  Ired.  203; 
People  V.  Ellis,  15  Wend.  371. 

420.  Improper  discharge  of  jury. 
Where  a  person  has  been  given  in  charge, 
on  a  legal  indictment,  to  a  regular  jury,  and 
that  jury  unnecessarily  discharged,  he  has 
been  once  put  in  jeopardy,  and  the  dis- 
charge is  equivalent  to  a  verdict  of  acquit- 
tal. Wright  V.  State,  5  Ind.  290;  Miller  v. 
State,  8  lb.  325;  State  v.  Wamire,  16  lb. 
357  ;  State  v.  Callendine,  8  Iowa,  288. 

421.  In  Ohio,  it  has  been  held  that  where 
the  jury  is  discharged  without  the  consent 
of  the  defendant,  unless  the  record  shows 
the  necessity  for  such  discharge,  the  defend- 
ant will  be  exonerated  from  liability  to  fur- 
ther answer  to  the  indictment.  Hines  v. 
State,  24  Ohio,  N.  S.  134. 

422.  The  fact  that  the  jury  after  twelve 
hours'  consultation,  report  that  they  cannot 
agree,  does  not  constitute  such  a  necessity 
as  justifies  their  discharge.     Miller  v.  State, 


snpra.     See  Reese  v.  State,  8  Ind.  416 ;  State- 
V.  Walker,  26  lb.  846. 

423.  On  a  trial  for  murder,  the  case  was 
committed  to  the  juiy  on  Saturday  evening 
of  the  first  week  of  the  term,  and  the  jury 
being  unable  to  agree,  were  discharged  the 
Monday  evening  following,  after  a  delibera- 
tion of  about  forty-five  hours.  Held  that 
the  prisoner  could  not  be  tried  again.  State 
V.  Alman,  64  N.  C.  364. 

424.  On  a  trial  for  forgery,  the  judge 
received  a  note  from  some  one,  it  did  not 
appear  whom,  saying  that  the  jury  could 
not  agree,  and  that  one  of  them  whose  name 
was  not  given,  was  not  a  citizen.  They 
were  thereupon  brought  into  court,  and 
without  being  asked  whether  they  had 
agreed  or  could  agree,  or  whether  any  of 
them  lacked  the  necessary  qualifications, 
and  without  any  statement  by  them  to  the 
court,  they  were  discharged.  Held  tanta- 
mount to  an  acquittal.  Poage  v.  State,  3 
Ohio,  N.  S.  229. 

425.  Discharging  jury.  On  a  trial  for 
murder,  the  case  having  been  given  to  the 
jury  on  Tuesday,  the  judge  went  home, 
instructing  the  clerk  to  inform  him  by 
telegraph  of  the  agreement  or  failure  to 
agree  of  the  juiy.  On  the  Saturday  night 
following,  the  clerk  telegraphed  to  the  judge 
that  the  jury  could  not  agree,  and  he  in- 
structed the  clerk  by  telegraph  to  discharge 
the  jury  and  remand  the  prisoner.  Held 
error,  and  that  the  prisoner  must  be  dis- 
charged.    State  V.   Jefi"erson,  66  N.  C.  309. 

426.  In  New  York,  the  presiding  justice 
has  no  authority  to  discharge  the  jury  in 
the  absence  of  his  associates,  whose  pres- 
ence is  necessary  to  constitute  a  court  of 
Oyer  and  Terminer;  the  only  thing  he  has 
power  to  do  in  the  absence  of  his  associates 
touching  the  business  of  the  court  being  to 
take  recognizances  and  bail.  People  v. 
Reagle,  60  Bnrb.  527. 

427.  Discharge  of  jury  in  absence  of 
prisoner.  In  Indiana,  where  the  jury,  being 
unable  to  agree,  are  discharged  in  the  ab- 
sence of  the  prisoner,  such  discharge 
operates  as  an  acquittal.  State  v.  Wilson, 
50  Ind.  487. 

428.  In  Iowa,  on  a  trial  for  forgery,  the 


TRIAL. 


629 


Proceedings  Subsequent  to  Submitting  Case  to  Jury, 


court  being  satisfied  that  the  jury  could 
not  agree,  discharged  them.  The  defendant 
was  at  the  time  confined  in  jail,  and  had  no 
knowledge  ©f  the  proceedings  until  after 
the  jury  were  discharged.  His  counsel  was 
present,  but  otherwise  engaged,  and  did  not 
know  what  was  being  done.  The  defendant 
moved  to  be  released,  on  the  groimd  that 
he  had  been  "  once  in  jeopardy."  Held  that 
his  motion  was  properly  overruled.  State 
V.  Vaughan,  29  Iowa,  286. 

429.  Expiration  of  term  of  court  before 
verdict.  When  the  jury  fail  to  return  a 
verdict  in  consequence  of  the  expiration  of 
the  term  of  the  court,  the  prosecuting  at- 
torney may,  without  special  leave  of  the 
court,  cause  a  capias  to  be  issued,  and  the 
prisoner  to  be  again  put  upon  his  trial. 
State  V.  Tilletson,  7  Jones,  114. 

430.  The  prisoner  to  be  present  when 
the  verdict  is  rendered.  At  common  law? 
in  capital  cases,  the  verdict  must  be  received 
in  open  court,  and  in  the  presence  of  the 
prisoner.  HoUiday  v.  People,  4  Gilman, 
111;  People  v.  Perkins,  1  Wend.  91. 

431.  Where  the  court,  at  a  recess,  gave 
additional  instructions  to  the  jury,  received 
their  verdict,  and  discharged  them  in  the 
absence  of  the  prisoner's  counsel,  it  was  held 
error  if  no  attempt  to  give  them  notice  was 
made,  but  that  it  would  be  sufficient  notice 
to  call  them  at  the  court  house  door  or 
other  place  as  witnesses  and  other  persons 
are  usually  called.  McNeil  v.  State,  47 
Ala.  498. 

432.  On  a  trial  for  felony,  it  is  error  for 
the  clerk  to  receive  the  verdict,  during  a 
recess  of  the  court,  in  the  absence  of  the 
prisoner,  even  though  it  be  done  with  the 
consent  of  his  counsel ;  and  it  is  also  error 
to  allow  an  amendment  of  the  verdict,  un- 
less the  record  affirmatively  shows  that  the 
prisoner  was  present  in  the  court  at  the 
time.    Waller  v.  State,  40  Ala.  325. 

433.  When  the  prisoner  will  not  come 
into  court  to  hear  the  verdict,  the  court  may 
order  a  mistrial.  State  v.  Battle,  7  Ala. 
259. 

434.  If  the  verdict  is  received  and  read 
aloud  in  open  court  when  the  prisoner  is 
absent,  and  the  jury   discharged,  the  court 


may  recall  them  before  they  have  left  the 
bar,  and  if  tliis  is  done  immediately  upon 
the  discovery  of  the  absence  of  the  prisoner, 
and  the  papers  in  the  case  handed  back  to 
them,  the  prisoner  cannot  complain  on  er- 
ror of  the  action  of  the  court.  Brister  v. 
State,  26  Ala.  107. 

435.  In  Mississippi,  it  has  been  held  that 
although  a  person  on  trial  for  felony  has  a 
right  to  the  rendition  of  the  verdict  in  open 
court,  in  his  presence,  yet  if  he  is  not  held 
in  custody  and  voluntarily  absents  himself 
when  the  verdict  is  rendered,  he  cannot 
complain.     Price  v.  State,  35  Miss.  531. 

436.  In  California,  on  the  trial  of  an  in- 
dictment for  grand  larceny,  the  prisoner  was 
absent  when  the  jury  came  into  court  and 
announced  their  verdict,  and  while  the 
same  was  being  recorded  by  the  court,  but 
returned  before  the  jury  were  discharged, 
knew  what  the  verdict  was,  and  had  an 
opportunity  to  demand  the  polling  of  the 
juiy.  Held  not  a  ground  for  setting  aside 
the  verdict.     People  v.  Miller,  33  Cal.  99. 

437.  Refusal  of  court  to  interrogate 
jury.  After  verdict  of  guilty  on  a  trial  for 
murder,  the  omission  of  the  judge  to  ask 
the  jury  if  they  found  the  name  of  the  per- 
son killed  as  alleged  in  the  indictment, 
when  requested  to  do  so,  is  not  a  ground  of 
exception.     State  v.  Conley,  39  Maine,  78. 

438.  Polling  jury.  In  Massachusetts,  the 
prisoner's  counsel  is  not  permitted  to  poll 
the  jury.  Com.  v.  Roby,  12  Pick.  496.  In 
that  State  it  has  never  been  the  right  of  a 
party  in  any  case  to  have  the  jury  polled. 
Com.  V.  Costley,  118  Mass.  1. 

439.  Verdict  must  be  freely  and  unani- 
mously rendered.  The  court  should  re- 
fuse to  receive  a  verdict  not  freely  and 
unanimously  concurred  in.  Where  one  of 
the  jury  entertained  doubts  of  the  defend- 
ant's guilt,  and  made  tlie  fact  known  to  the 
court  when  the  jury  were  polled,  but  after 
some  conversation  with  the  court  was  in- 
duced to  assent  to  the  verdict,  it  was  held 
ground  for  a  new  trial.  State  y.  Austin,  6 
Wis.  205.  And  see  Rothbaucr  v.  State,  22 
lb.  468. 

440.  Upon  tlie  trial  of  an  indictment  for 
an  aifray,  after  the  jury  had  come  into  court, 


630 


TRIAL. 


Proceedings  Subsequent  to  Submitting  Case  to  Jury. 


Record  of  Conviction. 


before  announcing  their  verdict  they  inti- 
mated that  they  intended  to  acquit  one  of 
the  defendants.  The  court  told  them  that 
if  they  believed  the  evidence,  both  of  the 
defendants  were  guilty.  The  attorney  for 
the  prosecution  directed  the  clerk  to  enter 
a  verdict  of  guilty  as  to  both,  which  was 
done,  and  the  juiy  being  asked  if  that  was 
their  verdict,  made  no  direct  assent,  but  by 
a  nod  from  each  of  them.  Held  that  there 
must  be  a  new  trial.  State  v.  Anthony,  10 
Led.  153. 

441.  Reconsideration  of  verdict.  The 
court  has  a  right  to  direct  the  jury  to  recon- 
sider their  verdict  before  it  is  recorded,  and 
it  is  its  duty  to  do  so,  when  satisfied  that 
there  has  been  a  palpable  mistake.  Peo- 
ple V.  Bush,  3  Parker,  552. 

442.  Where  on  a  trial  for  grand  larceny, 
the  jury  have  rendered  a  verdict  of  guilty, 
they  may,  before  they  have  left  their  seats, 
with  the  consent  of  both  sides,  hear  addi- 
tional testimony  and  reconsider  their  verdict. 
People  V.  Smith,  1  Wheeler's  Crim.  Cas. 
119. 

443.  A  consent  of  counsel  for  the  iDrisoner 
that  the  jury  may  return  their  verdict  to  the 
clerk,  implies  a  consent  that  they  may  dis- 
perse after  having  done  so;  and  if  their 
verdict  is  for  manslaughter,  not  specifying 
the  grade,  it  is  not  error  in  the  court  to  re- 
assemble them,  and  submit  the  verdict  to 
them  again,  in  order  that  they  may  specify 
the  grade  of  manslaughter,  unless  the 
prisoner  can  show  that  his  case  has  in  some 
way  been  prejudiced  by  the  dispersion. 
Jackson  v.  State,  45  Ga.  198. 

444.  Amendment  of  verdict.  When  the 
verdict  is  informal,  the  jury  may,  on  the  mo- 
tion of  the  prosecuting  attorney,  with  the 
consent  of  the  court,  amend  it  so  as  to  give 
it  the  form  of  a  general  verdict  of  guilty. 
McGregg  v.  State,  4  Blackf.  101 ;  Nelson  v. 
People,  5  Parker,  39. 

445.  On  the  trial  of  an  indictment  for 
feloniously  removing  a  dead  body  from  the 
grave  for  the  purpose  of  dissection  or  sale, 
the  jury  rendered  the  following  verdict: 
"We  find  the  prisoner  guilty  of  receiving 
and  dissecting,"  which  was  entered  by  the 
clerk.     Upon  a  suggestion  of  the  district  at- 


torney that  the  verdict  was  informal,  the- 
clerk,  by  direction  of  the  court,  changed  the 
form  of  the  verdict  to  that  of  guilty  under 
the  fourth  coimt.  The  jury  upon  being 
polled,  disagreed.  They  then  retired  again 
by  direction  of  the  court,  and  returned  with 
a  verdict  of  "guilty  under  the  fourth 
count."  Held  that  there  was  no  error.  Peo- 
ple V.  Graves,  5  Parker,  134. 

446.  When  too  late  to  change  verdict. 
When  a  jury  is  asked  if  they  have  agreed  on 
their  verdict,  and  they  reply  that  they  have, 
and  the  same  is  recorded,  and  the  whole 
jianel  being  called  upon  to  hearken  to  it  as 
the  court  hath  recorded  it,  and  no  objection 
is  made,  either  by  any  of  the  jury  or  the 
counsel,  it  is  too  late  for  the  jury  to  alter  or 
amend  it,  and  also  too  late  to  poll  the  panel. 
Ford  V.  State,  12  Md.  514. 

447.  An  addition  made  to  the  verdict  by 
the  court  after  the  discharge  of  the  jury,  is 
irregular,  and  will  be  disregarded.  Guen- 
ther  V.  People,  24  N.  Y.  100. 

448.  Where  the  jury  on  a  trial  for  larceny 
under  an  agreement  of  counsel  that  they 
might  seal  their  verdict,  place  it  in  the 
hands  of  the  ofBcer  having  them  in  charge, 
and  separate,  returned  a  sealed  verdict  which 
was  defective  in  not  finding  the  value  of  the 
property  stolen,  and  the  court  thereupon  di- 
rected the  sheriff  to  recall  the  jury  and  re- 
quire them  to  come  into  court  and  amend 
their  verdict,  which  they  did  three  days  af- 
ter they  had  separated,  it  was  held  error. 
Williams  v.  People,  44  111.  478. 

449.  On  the  trial  of  an  indictment  for 
threatening  to  accuse  another  of  crime,  the 
jury  upon  retiring,  were  told  by  the  court 
that  they  might  bring  in  a  sealed  verdict. 
On  coming  into  court  the  next  morning,  it 
transpired  that  they  had  agreed  on  a  verdict 
and  separated  during  the  night,  but  had  not 
put  their  verdict  in  writing.  The  judge 
thereupon  directed  them  to  retire  and  re- 
duce their  verdict  to  writing  and  return  it 
as  agreed  upon  the  night  before,  without 
further  deliberation.  Held  that  the  verdict 
was  void.     Com.  v.  Dorus,  108  Mass.  488. 

6.  Record  op  conviction. 

450.  What  it  ought  to  contain.     After' 


TRIAL.— UNWHOLESOME   PROYISIONS,   SALE   OF.      63L 


Record  of  Conviction. 


When  Seller  Liable. 


Indictment. 


the  caption  stating  the  time  and  place  of 
holding  the  court,  the  record  should  consist 
of  the  indictment  jjroperly  indorsed,  as 
found  by  the  grand  jury  ;  the  arraignment 
of  the  prisoner  and  his  plea  ;  the  impanel- 
ing of  the  jury;  the  verdict  and  the  judg- 
ment. Harriman  v.  State,  2  Iowa,  270; 
McKinney  v.  People,  2  Oilman,  541. 

451.  The  record  of  an  indictment  should 
show  not  only  that  the  court  was  held  for 
the  proper  county,  but  that  it  was  held  at 
the  proper  place  in  the  county.  Carpenter 
V.  State,  4  How.  Miss.  163 ;  Clark  v.  State,  1 
Smith,  161;  s.  c.  1  Carter,  253.  In  New 
Jersey,  the  record  of  conviction  need  not 
state  where  the  trial  was  had,  but  it  will  be 
presumed  to  have  been  at  the  place  designa- 
ted by  law.     West  v.  State,  2  Zabr.  212. 

452.  A  conviction  will  not  be  sustained 
when  the  record  does  not  show  that  a  grand 
jury  was  impaneled,  and  returned  the  indict- 
ment into  court  according  to  law.  Conner  v. 
State,  19  Ind.  98 ;  18  lb.  428 ;  Springer  v.State, 
19  lb.  180.  But  the  court  may,  during  the 
term  at  which  the  trial  is  had,  make  the  en- 
try of  record  necessary  to  show  such  facts. 
Bodkin  v.  State,  20  Ind.  281 :  Jackson  v. 
State,  21  lb.  79 ;  Hale  v.  State,  lb.  268. 

See  Bill  op  exceptions;  Certioraki; 
Contempt  ;  Continuance  ;  Evidence  ;  For- 
mer ACQUITTAL  OR  CONVICTION;  INDICT- 
MENT ;  Judgment  ;  Jurisdiction  ;  Jury  ; 
New  trial  ;  Nolle  prosequi  ;  Sentence  ; 
Venue,  change  op;  Verdict;  Witness; 
Writ  op  error. 


0alc  of. 

1.  When  seller  liable. 

2.  Indictment. 

3.  Evidence. 

1.  When  seller  liable. 

1.  What  constitutes   the    offense.     In 

North  Carolina,  it  has  been  held  that  to 
sustain  an  indictment  for  knowingly  selling 
unwholesome  provisions,  tlie  provisions  sold 
must  be  in  such  a  condition  as  that  if  eaten 


they  would  by  their  unwholesome  and  dele- 
terious qualities  have  injured  the  health  of 
those  who  were  to  have  used  them.  State 
V.  Norton,  2  Ired.  40. 

2.  But  in  New  York,  on  the  trial  of  an 
indictment  for  selling  unwholesome  pro- 
visions, it  was  held  correct  to  charge  that 
the  accused  was  guilty  if  the  animal  sold 
was  diseased,  the  disease  known  to  the 
accused,  and  the  nature  and  tendency  of  it 
such  as  to  taint  the  flesh  of  the  entire  ani- 
mal in  any  degree,  although  the  taint  was 
imperceptible  to  the  senses,  and  the  eating  of 
the  flesh  produced  no  apparent  injury. 
Goodrich  v.  People,  19  N.  Y.  574;  affi'g  s. 
c.  3  Parker,  622. 

3.  In  Tennessee,  it  has  been  held  that  if  a 
person  sell  unsound  meat  when  he  might 
have  known  of  its  unsoundness  by  ordinary 
care  and  diligence,  he  will  be  liable  to  in- 
dictment.    Hunter  v.  State,  1  Head,  160. 

4.  The  sale  of  unwholesome  beef  for  the 
food  of  men  to  a  wholesale  dealer  in  the  mar- 
ket, the  vendor  knowing  it  to  be  such,  is  in- 
dictable. It  is  not  error  therefore  in  the  judge 
to  refuse  to  charge  the  jury  that  the  indict- 
ment could  not  be  sustained  if  they  should 
find  or  believe  that  the  beef  was  purchased 
as  an  article  of  merchandise  and  not  for 
domestic  consumption.  People  v.  Parker, 
38  N.  Y.  85. 

2.  Indictment. 

5.  Averment  of  sale.  An  indictment  for 
selling  unwholesome  provisions  which  al- 
leges that  the  accused  "  sold  to  divers  citi- 
zens five  hundred  pounds  of  beef  as  good 
and  wholesome  beef  and  food,"  and  that  it 
was  unwholesome  and  not  fit  to  be  eaten  by 
man,  sufficiently  avers  a  sale  of  the  beef  to 
the  citizens  to  be  eaten  by  them.  Goodrich 
V.  People,  supra. 

6.  An  indictment  which  charges  that  the 
defendant  "  did  unlawfully  keep,  ofier  for 
sale  and  sell"  adulterated  milk,  is  not  bad 
for  duplicity.  Com.  v.  Nichols,  10  Allen, 
199. 

7.  Averment  of  guilty  knowledge. 
Where  the  gist  of  the  offense  under  a 
statute  (R.  S.  of  Mass.  ch.  131,  §  1),  was  the 
guilty  knowledge  of  a  party  in  selling  meat 


632 


UNWHOLESOME   PROVISIONS,  SALE   OF. 


Evidence. 


unfit  for  food,  it  was  held  that  the  indict- 
ment must  aver  that  the  defendant  at  the 
time  of  the  alleged  sale  knew  that  the  meat 
sold  by  him  was  diseased.  Com.  v.  Boynton, 
13  Cush.  499. 

3.  Evidence. 

8.  Proof  of  sale  in  the  market  sufficient. 

Under  an  indictment  charging  the  sale  of 
diseased  meat  without  making  the  same 
known  to  the  buyer,  it  is  suificient  for  the 
prosecutibn  to  show  that  the  defendant 
knowingly  sold  the  meat  in  the  market,  and 
the  burden  is  on  the  defense  to  prove  that 
the  condition  of  the  meat  was  disclosed  to 
the  buyer  at  the  time  of  the  sale.  Seabright 
V.  State,  2  West  Va.  591. 

9.  Proof  of  possession  for  sale  by  serv- 
ant. On  the  trial  of  an  indictment  for  sell- 
ing adulterated  milk,  in  order  to  charge  the 
master  where  the  milk  is  found  in  the 
possession  of  a  servant,  in  addition  to  the 
proof  of  possession  for  sale  or  exchange  by 
the  servant,  there  should  be  evidence  that 
the  servant  in  having  it  so  for  sale  or  ex- 
change was  acting  for  and  in  pursuance  of 
the  will  of  the  master.  State  v.  Smith,  10 
R.  I.  258. 

10.  Proof  of  sale  to  wife.  Where  an  in- 
dictment alleged  that  the  defendant  sold 
adulterated  milk  to  a  woman  named,  and 
it  was  proved  that  in  making  the  pur- 
chase she  acted  as  the  agent  of  her 
husband,  but  that  the  defendant  had  no 
notice  that  she  acted  as  the  agent  of  any 
person,  it  was  held  that  the  variance  was 
not  material.  Com.  v.  Farren,  9  Allen, 
489. 

11.  Testimony  of  experts.  On  the  trial 
of  an  indictment  for  selling  unwholesome 
beef,  the  prosecution  may  prove  by  physi- 
cians that  the  eating  of  diseased  meat  does 
not  always  cause  apparent  sickness,  and 
show  by  them  from  the  account  given  of  the 
condition  of  the  animal  by  other  witnesses 
the  nature  of  the  disease,  that  it  would 
cause  a  fever,  and  render  the  flesh  of  the 
animal  unwholesome.  Goodrich  v.  People, 
3  Parker,  623 ;  affi'd  19  N.  Y.  574. 

12.  Where  on  the  trial  of  an  indictment 


for  selling  adulterated  milk  a  witness  was 
allowed  to  testify  that  he  had  had  much 
experience  with  a  lactometer  in  testing  milk, 
and  that  he  had  thus  tested  the  milk  sold 
by  the  defendant,  and  to  state  the  result,  it 
was  held  proper,  the  value  of  the  test  being 
a  question  for  the  jury.  Com.  v.  Nichols,  10 
Allen,  199. 

13.  Proof  that  the  defendant  knew  that 
the  provisions  were  unwholesome.  In 
order  to  convict  a  person  for  selling  diseased 
meat,  the  accused  need  not  be  shown  to  be 
a  person  of  skill  in  order  to  have  a  guilty 
knowledge  that  the  disease  which  the  ani- 
mal had  would  render  its  flesh  unwholesome 
for  food.     Goodrich  v.  People,  supra. 

14.  On  the  trial  of  an  indictment  for  sell- 
ing unwholesome  beef,  what  the  defendant's 
wife  said  to  him  about  the  unwholesomeness 
of  the  meat  is  competent  evidence  on  the 
question  whether  the  defendant  knew  or 
believed  the  meat  was  bad  when  he  dis- 
posed of  it.     Ibid. 

15.  The  statute  of  New  York  (of  1862), 
entitled  "  An  act  to  prevent  the  adulteration 
of  milk,  and  to  prevent  the  traffic  in  impure 
and  unwholesome  milk,"  does  not  prevent 
any  one  from  mixing  milk  and  water,  unless 
it  is  done  with  the  intent  of  offering  it  for 
sale  or  exchange.  Such  intent  may  be  in- 
ferred from  the  quantity  of  milk,  the  mode 
of  carrying  it,  the  employment  of  the  pris- 
oner, or  his  declarations ;  but  there  must  be 
some  evidence  both  of  adulteration  and  of 
the  purpose  of  the  prisoner  as  to  the  sale  of 
the  adulterated  article  before  he  can  be  con- 
\dcted.  People  v.  Fauerback,  5  Parker, 
311. 

16.  In  Massachusetts,  under  an  indict- 
ment for  selling  adulterated  milk  in  viola- 
tion of  the  statute  (of  1864,  ch.  122,  §  4), 
it  need  not  be  proved  that  the  defendant 
knew  that  the  milk  was  adulterated  ;  and 
if  such  knowledge  be  averred  in  the  indict- 
ment, it  may  be  rejected  as  surplusage ;  nor 
need  it  be  alleged  or  proved  that  the  milk 
was  cow's  milk.  Com.  v.  Farren,  9  Allen, 
489.  Approved  in  Com.  v.  Nichols,  10  lb. 
199,  and  in  State  v.  Smith,  10  R.  I.  258. 
Such  statute  is  constitutional.  Com.  v. 
Waite,  11  Allen,  264. 


USURY.— VAGRANT. 


633 


Offense  when  Committed. 


Who  Deemed. 


Itsun). 


1.  Offense  when  committed.  In  New 
York,  to  constitute  usury  there  must  be 
either  a  payment  or  an  agreement  by  which 
the  party  taking  it  is  entitled  to  receive 
more  than  seven  per  cent.  If  tlie  payment 
is  conditional,  and  the  condition  is  within 
the  power  of  the  debtor  to  perform,  so  that 
the  creditor  may  by  the  debtor's  ^ct,  be 
deprived  of  any  extra  payment,  it  is  not 
usurious.     Sumner  v.  People,  29  N.  Y.  337. 

2.  The  gist  of  the  offense  of  usury  under 
the  statute  of  Tennessee,  is  the  reception  of 
the  money ;  the  mere  agreement  for  the 
payment  of  more  than  the  legal  rate  of 
interest  not  being  of  itself  while  unexe- 
cuted the  subject  of  a  criminal  prosecution. 
Where,  therefore,  the  contract  was  made  in 
Kentucky,  and  the  money  paid  in  Tennessee, 
it  was  held  indictable  in  the  latter.  But 
when  a  lona  fide  contract  for  the  payment 
of  money  is  entered  into  in  another  State, 
the  rate  of  interest  will  be  governed  by  the 
law  of  that  State,  and  the  payment  of  the 
money  in  Tennessee  will  not  be  usury, 
though  the  rate  of  interest  exceed  that 
allowed  by  the  law  of  Tennessee.  Murphy 
V.  State,  3  Head,  249. 

3.  Distinct  offenses.  Whether  a  bargain 
for  illegal  interest,  and  a  subsequent  receiv- 
ing of  the  interest  thus  bargained  for,  con- 
stitute distinct  offenses,  so  that  a  prosecu- 
tion barred  as  to  the  one  will  lie  for  the 
©ther — query.  Swinney  v.  State,  14  Ind.  315. 

4.  Description  of  contract.  In  New 
Hampshire,  an  information  under  the  stat- 
ute for  making  a  usurious  contract,  is  suffi- 
cient which  sets  forth  the  corrupt  bargain 
generally ;  and  it  need  not  state  how  much 
of  the  money  alleged  to  have  been  received 
was  over  and  above  the  lawful  interest. 
State  V.  Tappan,  15  New  Hamp.  91.  In 
Tennessee,  the  usurious  contract  need  not  be 
particularly  described  in  the  indictment. 
Gillespie  v.  State,  6  Humph.  1G4. 

5.  Averment  of  place.  An  indictment 
for  usury  in  receiving  more  than  legal  inter- 
est on  a  note  which  does  not  allege  the  place 
where  the  note  was  made,  is  fatally  defect- 
ive.    State  V.  Williams,  4  Ind.  234. 


6.  Averment  of  intent.  An  information 
for  usury  must  charge  a  corrupt  intent. 
Brock  V.  State,  14  Ind.  425. 

7.  Proof  of  time  of  agreement.  In  New 
Hampshire,  it  has  been  held  that  to  sustain 
an  indictment  for  usury,  it  need  not  be 
proved  that  the  corrupt  agreement  was  en- 
tered into  at  the  time  of  executing  the  con- 
tract.    State  V.  Tappan,  sujyra. 


ba%xanl 

1.  "Who  deemed.  A  common  prostitute 
is  not  a  vagrant  within  the  statute  of  New 
York,  merely  because  she  is  an  idle  per- 
son :  but  it  is  otherwise  if  she  have  no  law- 
ful means  of  support.  People  v.  Forbes,  4 
Parker,  611. 

2.  In  Massachusetts,  on  the  trial  of  a  com- 
plaint under  the  statute  (Gen.  Sts.  ch.  165, 
§  23),  for  being  an  idle  and  disorderly  per- 
son, it  was  held  that  it  was  correct  to  charge 
the  jury  that  if  the  defendant  was  under  a 
necessity  to  work  for  the  support  of  himself 
or  persons  dependent  upon  him,  and  though 
able,  and  having  opportunities  to  work, 
neglected  all  lawful  business,  and  habitually 
frequented  houses  of  ill-fame,  gaming 
houses,  and  tipijling  shops,  he  might  be 
convicted,  and  that  the  court  need  not  ex- 
plain to  the  jury  what  constituted  a  mis- 
spending of  his  time.  Com.  v.  Sullivan ; 
Same  v.  Daniels,  5  Allen,  511. 

3.  Indictment.  In  North  Carolina,  an 
indictment  for  vagrancy  under  the  statute, 
must  allege  that  the  defendant  was  able  to 
work,  and  neglected  to  devote  himself  to 
any  honest  pursuit;  and  where  it  is  charged 
that  he  was  trying  to  support  himself  by  un- 
lawful means,  the  unlawful  means  must  be 
specilied.     State  v.  Custer,  65  N.  C.  339. 

4.  In  Alabama,  an  indictment  for  vagrancy 
under  the  statute  (Rev.  Code,  §  3630),  which 
alleges  that  the  defendant  "  having  a  family, 
abandoned  and  left  them  in  danger  of  be- 
coming a  burden  to  the  public,"  should 
also  allege  the  ability  of  the  defendant  to 
contribute  to  the  support  of  his  family,  by 
his  means,  or  being  an  able  bodied  person 
by  his  industry.     Boulo  v.  State,  49  Ala,  22. 


634 


VAGKANT.— YENUE,   CHANGE   OF. 


Record  of  Conviction. 


Grounds  for. 


5.  A.  was  arrested  as  a  vagrant,  in  pur- 
suance of  a  city  ordinance,  and  released 
upon  his  promise  to  leave  the  city  within  a 
stipulated  time,  which  promise  he  violated, 
and  his  rearrest  was  ordered  by  the  city 
marshal.  In  attempting  to  rearrest  him 
without  warrant,  B.,  a  policeman,  was  killed, 
and  A.  was  committed  for  murder.  Held 
that  it  was  not  necessary  to  allege  in  the  in- 
dictment that  A.  was  a  vagrant,  or  that  B. 
was  a  i^olice  officer,  as  it  would  have  been  if 
the  indictment  had  been  for  resisting  an 
officer  in  the  discharge  of  his  duty.  State 
V.  Eoberts,  15  Miss.  28. 

6.  Record  of  conviction.  Where  there  is 
a  commitment  in  case  of  vagrancy,  the  rec- 
ord and  commitment  must  state  the  grounds 
on  which  the  charge  was  based.  People  v. 
Forbes,  4  Parker,  611 ;  co)it?n,  People  v. 
Gray,  lb.  616. 

7.  The  statute  of  New  York  (Laws  of 
183o,  p.  353,  §  1),  authorizing  a  general  form 
for  a  record  of  conviction  in  case  of  va- 
grancy is  constitutional.  Morris  v.  People, 
1  Parker,  441. 

8.  Inquiry  on  habeas  corpus.  Where  a 
person  committed  as  a  vagrant  is  brought  up 
on  hcibeas  corpus^  the  only  inquiry  should  be 
whether  the  justice  had  jurisdiction  of  the 
prisoner  and  committed  him  for  an  offense 
defined  in  the  statute.  People  v.  Gray, 
supra. 


llcnuc,  Cliangc  of, 

1.  Grounds  for.  That  a  fair  and  impar- 
tial trial  cannot  be  had  in  the  county,  is 
sufficient  cause  for  a  change  of  venue.  Peo- 
ple V.  Long  Island  R.  R.  Co.  4  Parker,  602. 

2.  But  the  affidavit  of  the  accused  that 
be  cannot  have  an  impartial  trial  in  the 
county  where  he  is  indicted,  is  not  alone 
sufficient  to  authorize  a  change  of  the  place 
of  trial;  nor  the  fact  that  thirty  or  forty 
persons  upon  being  solicited  have  contrib- 
uted ^mall  sums  to  defray  the  cost  of  em- 
ploying counsel  to  assist  the  prosecuting  at- 
torney. People  V.  Graham,  21  Cal.  261 ; 
People  V.  Lee,  6  lb.  353,  questioned. 

3.  It  is  the  right  of  the  prosecution  as  well 
as  the  prisoner  to  have  the  trial  take  place  in 


the  county  where  the  crime  is  alleged  to  have 
been  committed.  To  entitle  an  accused  per- 
son to  change  the  place  of  ti'ial,  he  must 
show  that  by  reason  of  popular  passion  or 
prejudice,  he  cannot  have  a  fair  trial  in  the 
county  where  the  venue  is  laid.  The  belief 
that  a  fair  trial  cannot  be  obtained,  is  not 
sufficient ;  facts  and  circumstances  must  be 
shown.  Where  the  facts  established  were 
that  gjpat  excitement  existed  in  the  county, 
and  that  the  newspapers  had  contained  arti- 
cles more  or  less  expressing  the  popular  pas- 
sion, but  it  was  not  shown  that  any  passion 
or  prejudice  existed  as  to  the  guilt  of  any  par- 
ticular person,  it  was  held  that  no  sufficient 
case  was  made  out  to  change  the  place  of  trial. 
People  V.  Sammis,  6  N.  Y.  Supm.  K  S.  328. 

4.  Prejudice  of  the  judge  is  not  a  proper 
ground  for  a  change  of  the  place  of  trial. 
People  V.  Mahoney,  18  Cal.  185;  People  v. 
Williams,  24  lb.  33;  People  v.  Shuler,  28  lb. 
490. 

5.  The  venue  cannot  be  changed  to 
another  county  against  the  defendant's  ob- 
jection, on  the  ground  that  the  presiding 
judge  has  been  of  counsel  for  the  prosecu- 
tion. But  notwithstanding  such  order  of 
transfer  is  void,  if  the  cause  is  taken  from 
the  docket  in  consequence  of  it,  and  kept  off 
for  several  years,  the  prosecution  is  thereby 
discontinued.     Ex  parte  Rivers,  40  Ala.  712. 

6.  Defendant  entitled  to.  In  Arkansas, 
when  the  prisoner's  application  for  a  change 
of  venue  is  in  conformity  with  the  statute, 
he  is  entitled  to  it  as  a  matter  of  right,  and 
it  is  the  duty  of  the  court  to  grant  it  with- 
out inquiring  as  to  tlie  truth  of  the  cause 
assigned  or  any  consideration  as  to  its  ex- 
pediency.    Edwards  v.  State,  25  Ark.  444. 

7.  In  case  of  several  defendants.  Where 
two  or  more  are  jointly  indicted,  the  trial  of 
one  may  be  removed  to  another  court  on  his 
application,  without  removing  the  trial  of 
the  others.  State  v.  Martin,  2  Ired.  101.  In 
such  case,  he  must  be  tried  on  a  copy  of  the 
indictment,  the  original  remaining  in  the 
court  below.     John  v.  State,  2  Ala,  290, 

8.  In  Illinois,  where  an  indictment  was 
found  in  one  county  against  several  jointly, 
and  the  venue  changed  to  another  county  on 
motion  of  one  of  the  defendants,   without 


VENUE,  CHANGE   OF. 


635 


In  Case  of  Several  Defendants. 


When  Change  of  Venue  will  be  Presumed. 


the  consent  of  the  others,  where  he  was 
tried,  and  afterward  the  indictment  was  sent 
back  to  the  original  county  where  the  others 
were  tried,  it  was  held  proper.  Hunter  v. 
People,  1  Scam.  453. 

9.  In  case  of  several  defendants,  the  place 
of  trial  may  be  changed  as  to  all  upon 
enough  being  shown  to  make  a  change  jDroper 
as  to  one,  notwithstanding  it  is  a  case  in 
which  each  defendant  is  entitled  to  a  sepa- 
rate trial.     People  v.  Baker,  3  Parker,  181. 

10.  And  if  in  such  case,  the  defendants 
have  a  large  number  of  witnesses  who  are 
poor,  and  the  defendants  themselves  are  des- 
titute, the  district  attorney  will  be  compelled 
to  make  an  arrangement  for  the  payment  by 
the  county  from  which  the  indictment  is  re- 
moved, of  the  necessary  expenses  of  the  de- 
fendants' indigent  witnesses  attending  at 
any  court  where  the  trial  shall  not  be  post- 
poned at  their  instance.     lb. 

11.  May  be  ordered  by  court  to  which 
indictment  is  removed.  In  New  York, 
where  an  indictment  is  removed  by  certiorari 
from  the  Oyer  and  Terminer  to  the  Supreme 
Court,  the  latter  may,  at  special  term,  order 
the  trial  to  be  had  in  some  other  county,  for 
the  reason  that  a  fair  trial  cannot  be  had  in 
the  county  in  which  the  indictment  was 
found.     People  v.  Baker,  supra. 

12.  Place  to  which  the  trial  should  be 
changed.  Ordinarily,  where  the  place  of 
trial  is  changed,  an  adjoining  county  should 
be  selected.  But  if  the  necessity  which 
may  require  any  change  should  call  for  a 
more  remote  county,  that  should  be  selected. 
Ibid. 

13.  Order  of  court.  It  is  no  objection 
that  an  order  to  transmit  a  criminal  case 
from  Baltimore  City  Court  to  Howard  dis- 
trict, says  to  Howard  District  Court,  instead 
of  the  Howard  District  of  Anne  Arundel 
County.     Rawlings  v.  State,  1  Md.  137. 

14.  It  is  not  ground  of  reversal,  that  the 
order  for  a  change  of  venue  does  not  follow 
the  statute.  If  there  be  cause  of  objection 
to  such  order,  it  must  be  stated  in  the  court 
below.     Brown  v.  State,  8  Eng.  9G. 

15.  Entry  of  record.  Wlicre  the  venue 
is  changed  upon  its  appearing  that  an  im- 
partial trial   cannot  be  had  in  the  county 


where  the  offense  is  laid,  the  court  will 
order  a  suggestion  of  this  fact  to  be  entered 
on  the  record,  and  a  venue  is  then  awarded 
to  the  sheriff  of  another  county.  Peojile  v. 
Vermilyea,  7  Cow.  108. 

16.  When  change  of  venue  will  be  pre- 
sumed. Where  an  indictment  is  tried  in  a 
different  county  from  the  one  in  which  it 
was  found,  but  the  record  does  not  show  a 
change  of  venue,  such  change  will  be  pre- 
sumed.    Doty  V.  State,  G  Blackf.  529. 

17.  Order  changing  venue  presumed 
regular.  An  order  changing  the  venue  of 
an  indictment  will  be  conclusive  of  its  own 
regularity,  unless  the  record  shows  the  con- 
trary.    McCauley  v.  U.  S.  1  Morris,  486. 

18.  Presumption  as  to  regularity  of 
proceedings  in  court  below.  The  court  into 
which  a  cause  is  removed  will  presume  that 
all  things  were  regular  before  the  change  of 
venue  was  ordered,  and  it  is  incumbent  on 
the  prisoner  to  show  the  contrary.  State  v. 
Williams,  3  Stewart,  454. 

19.  Transcript  of  record.  Where  the 
indictment  is  removed  to  an  adjoining 
county  for  trial,  a  transcript  of  the  record 
must  be  sent  to  the  court  to  which  it  is  re- 
moved.    Price  v.  State,  8  Gill,  295. 

20.  Where  the  venue  is  changed,  the 
original  indictment  should  remain  in  the 
office  of  the  clerk  in  the  county  in  which  it 
is  found.  A  copy  only  should  be  included 
in  the  transcript  of  the  record  and  proceed- 
ings.    Ruby  V.  State,  7  Mo.  206. 

21.  The  failure  of  the  clerk,  after  a 
change  of  venue  is  ordered,  to  send  a  tran- 
script to  the  clerk  of  the  court  to  which  the 
trial  is  removed,  and  the  neglect  of  the 
latter  to  have  the  cause  entered  on  the 
docket  at  the  next  term  after  the  order  of 
removal,  is  not  a  discontinuance.  Harrall 
V.  State,  2G  Ala.  52. 

22.  In  Alabama,  when  the  venue  is 
changed  on  the  defendant's  application 
(Code,  §  3615),  a  certified  copy  of  the  in- 
dictment becomes  so  far  an  original  in  the 
court  to  which  the  trial  is  removed  that 
where  a  copy  of  it  is  delivered  to  the 
prisoner  it  will  be  a  sufficient  compliance 
with  the  statute.  Brister  v.  State,  26  Ala. 
107. 


636 


YENUE,  CHANGE  OF.— YERDICT. 


Verification  of  Clerk's  Certificate, 


Right  and  Duty  of  Jury  in  Determining. 


23.  Verification    of  clerk's   certificate. 

In  Alabama,  on  a  change  of  venue  (Code, 
§  3613),  it  is  not  necessary  that  each  paper, 
order,  etc.,  found  in  the  trauscrijit  should 
be  verified  by  name  in  the  clerk's  certificate. 
If  his  certificate  states  "  that  the  foregoing 
pages  contain  a  full,  true,  and  complete 
transcript  of  the  indictment  and  all  papers 
on  file  in  his  office,  and  of  all  the  entries 
relating  to  the  case  as  found  in  his  office," 
it  is  sufficient.    Ward  v.  State,  28  Ala,  53. 

24.  Presumption  from  clerk's  certificate. 
When  papers  are  sent  from  one  county  to 
another  by  a  change  of  venue,  it  -will  be 
presumed  from  the  clerk's  certificate,  in  the 
absence  of  objection  raised  in  the  court  be- 
low, that  the  clerk  has  transmitted  the 
proper  papers.  State  v.  Greenwood,  5 
Porter,  474. 

25.  Certiorari.  Where,  in  a  case  of 
change  of  venue,  the  transcript  sent  is  im- 
perfect, the  circuit  attorney  should  suggest 
a  diminution  of  the  record,  and  move  for  a 
writ  of  certiorari  directed  to  the  court  of 
the  county  from  which  the  venue  was  taken, 
to  send  up  the  record.  Laport  v.  State,  6 
Mo.  308. 

26.  In  Alabama,  under  the  code  (§  3615), 
the  court  to  which  the  trial  is  removed  may 
issue  a  certiorari  to  the  clerk  of  the  court  in 
which  the  indictment  was  found,  requiring 
him  to  transmit  certified  copies  of  any  and 
all  papers  and  entries  in  the  cause,  and  may 
order  the  original  papers  to  be  returned  to 
him.     Harrall  v.  State,  26  Ala.  52, 

27.  Jurisdiction  of  court  how  shown. 
In  case  of  a  change  of  venue,  the  jurisdic- 
tion of  the  court  that  tries  the  case  must  be 
shown  by  a  statement  in  the  nature  of  a 
caption  to  its  proceedings,  that  the  indict- 
ment is  there  filed,  and  that  the  prisoner 
was  tried  upon  it,  and  the  indictment  must 
constitute  a  part  of  the  record  of  the  court. 
Doty  V.  State,  7  Blackf.  427. 

28.  Trial  to  be  had  on  transcript.  In 
Alabama,  under  the  code  (§  3613),  when  the 
transcript  furnished  by  the  clerk  on  change 
of  venue  has  been  duly  certified  by  him  to 
contain  a  copy  of  the  indictment,  with  all 
the  indorsements  thereon,  and  all  the  entries 
and  orders  made  in  relation  to  the  cause,  in- 


cluding the  order  for  the  removal  of  the 
trial,  the  defendants  may  be  tried  on  such 
transcript.     Brister  v.  State,  26  Ala.  107. 

29.  Prisoner  need  not  be  arraigned. 
Where  the  venue  has  been  changed  after 
arraignment  and  plea,  the  prisoner  need  not 
be  again  arraigned,  nor  required  to  plead 
anew,     Vance  v.  Com.  2  Va.  Cas.  162. 

30.  Disposal  of  indictment.  Upon  a 
change  of  venue,  the  indictment  need  not 
be  recorded  in  the  court  where  it  was  found. 
Beauchamp  v.  State,  6  Blackf  299. 

31.  Remedy  for  denial  of  motion.  In 
Indiana,  it  has  been  held  that  the  refusal  to 
change  the  venue  cannot  be  assigned  for 
error.  Findley  v.  State,  5  Blackf.  576; 
Spence  v.  State,  8  lb.  281,  Formerly  in 
Alabama,  the  granting  of  an  application  for 
a  change  of  venue  in  a  criminal  case  (Code, 
§§  3608,  3609),  is  discretionary  with  the 
court  to  which  the  application  is  made. 
Ex  parte  Banks,  28  Ala.  28.  But  now  it 
seems,  if  the  motion  is  denied  in  a  proper 
case,  it  is  error  for  which,  after  conviction, 
the  judgment  will  be  reversed,  or  before 
trial  the  defendant  may  obtain  the  benefit 
of  his  application  by  mandmnus.  Birdsong 
V.  State,  47  Ala.  68 ;  s.  c.  1  Green's  Crim. 
Reps.  728, 

See  Inbictment,  tit.  3;  Jurisdiction, 
tit.  2. 


llcvbict 


1.  Right   and  duty  of  jury  in  deter- 

mining. 

2.  Nature  and  requisites. 

{a)   General  verdict, 
{b)  Special  verdict. 

3.  How   REGARDED. 

4.  Validity. 

5.  When  evidence. 

1.  Right  and   duty  of   jury  in  deter- 
mining. 

1.  Jury  to  decide  as  to  credibility  of 
witness.  The  credit  to  be  given  to  a  wit- 
ness whose  general  reputation  for  truth  has 
been  proved  to  be  bad  is  to  be  determined 
by  the  jury.  Com.  v.  Bosworth,  22  Pick, 
397. 


VEEDICT. 


G37 


Right  and  Duty  of  Jury  in  Determining. 


2.  A  telegraphic  message  being  material 
to  the  issue,  the  operator  testified  to  receiv- 
ing the  telegram,  and  of  having  a  faint  rec- 
ollection of  delivering  it  to  the  defendant. 
Held  that  the  degree  of  credit  to  be  given  to 
the  operator's  memory  was  a  question  for 
the  jury.     State  v.  Litchfield,  58  Maine,  2C7. 

3.  Questions  of  fact  to  be  determined 
by  jury.  "Whether  two  names  are  sounded 
alike  is  a  question  of  fact  for  the  jury,  and 
leaving  it  to  them  to  suppose  that  the 
difference  between  the  names  is  to  be  en- 
tirely disregarded  by  them  is  ground  for  a 
new  trial.  Com,  v.  Mehan,  11  Gray,  321; 
Com.  V.  Gill,  14  lb.  400 ;  Com.  v.  Donovan, 
18  Allen,  571. 

4.  On  a  trial  for  murder,  it  is  competent 
for  the  jury  to  determine  whether  spots 
testified  to  by  witnesses  are  blood,  although 
there  has  been  no  chemical  test  or  micro- 
scopic examination.  Gaines  v.  Com.  50 
Penn.  St.  319. 

5.  Jury  must  decide  without  reference 
to  their  private  knowledge.  Although 
the  weight  and  credit  to  be  given  to  the 
evidence  should  be  judged  of  by  the  jury 
in  the  light  of  their  own  experience,  yet 
that  should  be  done  without  any  addition 
to  or  modification  of  it  arising  out  of  the 
peculiar  scientific  acquirements  or  knowl- 
edge of  the  facts  in  controversy  by  any  one 
or  more  of  their  number.  People  v.  Zeiger, 
G  Parker,  355. 

6.  How  far  jury  judges  of  the  law.  In 
Maine,  the  jury  are  bound  by  the  instruc- 
tions of  the  court  in  matters  of  law  to 
the  same  extent  in  crinjinal  as  in  civil  cases. 
State  V.  Wright,  53  Me.  328 ;  State  v.  Stevens, 
lb.  548;  contra,  State  v.  Snow,  18  lb.  346. 
In  Vermont,  the  jury  are  the  judges  of  the 
law  as  well  as  the  fact  in  criminal  cases. 
State  V.  Croteau,  23  Vt.  14.  The  same 
seems  to  have  been  held  in  Alabama.  State 
V.  Jones,  5  Ala.  666,  but  afterward  denied. 
Batre  v.  State,  18  lb.  119.  But  although  in 
Vermont  the  jury  in  criminal  cases  are  the 
judges  of  the  law,  yet  it  is  the  duty  of  the 
court  to  instruct  them  as  to  the  law,  and  if 
in  rendering  a  verdict  against  the  accused 
they  disregard  the  instructions  or  mistake 
the  law,  the  court  may  set  the  verdict  aside. 


State  V.  Barron,  37  Vt.  57.  In  New  Hamp- 
shire, the  jury  are  bound  to  adopt  the  in- 
structions of  the  court  as  to  the  law.  Lord 
V.  State,  16  New  Hamp.  325.  In  Massa- 
chusetts, the  jury  are  to  decide  all  points  of 
law  involved  in  the  question  of  the  guilt  or 
innocence  of  the  prisoner,  but  not  other 
questions  of  law  arising  in  the  progress  of 
the  trial.  Com.  v.  Knapp,  10  Pick.  477. 
The  Legislature  cannot  constitutionally  give 
to  juries  in  criminal  cases  authority  to  de- 
termine questions  of  law.  Com.  v.  Anthes, 
5  Gray,  185. 

7.  In  New  York,  the  jury  in  criminal 
cases  have  a  right  to  determine  both  the 
law  and  the  facts,  and  they  may  disregard 
the  instruction  of  the  court  upon  questions 
of  law,  especially  in  favor  of  life.  People 
v.  Thayer,  1  Parker,  596 ;  People  v.  Videto, 
lb.  603 ;  contra,  Carpenter  v.  People.  8  Barb. 
603.  And  see  People  v.  Pine,  2  lb.  566  ; 
Safford  v.  People,  1  Parker,  474.  But  it  is 
the  duty  of  the  jury  to  be  governed  by  the 
instructions  of  the  court  upon  questions  of 
law.     Duffy  v.  People,  26  N.  Y.  588. 

8.  In  South  Carolina,  in  the  trial  of  capi- 
tal felonies,  the  jury  are  not  the  judges  of 
the  law.  State  v.  Drawdy,  14  Rich.  87.  In 
Missouri,  the  juiy  must  take  the  law  from 
the  court.  Hardy  v.  State,  7  Mo.  607.  In 
Georgia,  the  jury  are  bound  by  the  law  as  it 
is  expounded  to  them  by  the  court.  Smith 
V.  State,  49  Ga.  482.  But  in  the  latter  State 
it  has  been  held  that  the  jury  may  acquit 
the  prisoner,  notwithstanding  the  judge 
tells  them  if  they  find  certain  facts  to  be 
proved  he  is  guilty,  and  althougli  they  find 
such  facts  to  be  proved.  McGuffie  v.  State, 
17  Ga.  497  ;  McPherson  v.  State,  22  lb.  478 ; 
McDaniel  v.  State,  30  lb.  853. 

9.  In  Indiana,  it  has  been  held  that  the 
court  instructs  juries,  in  criminal  cases,  not 
to  bind  their  consciences,  but  to  inform 
their  judgments,  and  that  while  great  defer- 
ence should  be  paid  by  the  jury  to  the 
opinion  of  the  court,  they  are  not  bound  to 
adopt  it.  Lynch  v.  State,  9  Ind.  541,  ap- 
jiroting  Stocking  v.  State,  7  lb.  326,  and 
dovUing  Carter  v.  State,  2  lb.  617.  But  see 
Townsend  v.  State,  2  Blackf.  151. 

10.  In  Illinois  the  jury  may  disregard  the 


i)3S 


YERDICT. 


Right  and  Duty  of  Jury  in  Determining.    Nature  and  Requisites.    General  Verdict. 


instructions  of  the  court ;  and  it  is  erroneous 
to  charge  them  that  if  they  do  so  it  will  be 
the  duty  of  the  court  to  set  aside  their  ver- 
dict. Falk  V.  People,  42  111.  333.  See 
Schnier  v.  People,  23  lb.  17  ;  Adams  v.  Peo- 
ple, 47  lb.  376. 

11.  In  Michigan  the  jury  are  the  judges 
of  the  law  in  a  restricted  sense.  Hamilton 
V.  People,  29  Mich.  173,  In  Louisiana  the 
jury  are  judges  of  the  law  in  criminal  cases, 
in  a  limited  sense,  but  have  the  power  to 
disregard  the  law  as  laid  down  by  the  court. 
State  V.  Ballerio,  11  La.  An.  81;  State  v. 
Scott,  lb.  429 ;  12  lb.  386.  But  see  State 
V.  Saliba,  18  lb.  35;  State  v.  Tally,  23  lb. 
677.  In  the  United  States  courts  the  jury 
are  not  the  judges  of  the  law  in  criminal 
trials.     U.  S.  v.  Morris,  1  Curtis  C.  C.  23. 

12.  "When  court  to  direct  verdict.  After 
the  trial  has  been  commenced,  the  court  can- 
not grant  a  motion  to  discharge  the  prisoner 
on  the  ground  that  the  corpus  delicti  has  not 
been  proved;  but  the  court  may  direct  as  to 
the  verdict.  Where  a  question  of  law  only 
is  presented,  the  court  may  instruct  the  jury 
to  acquit;  and  a  refusal  to  give  such  in- 
struction in  a  proper  case,  is  error.  People 
V.  Bennett,  49  K  Y.  137. 

13.  The  court  has  the  power,  and  it  is  its 
duty,  to  direct  a  verdict  of  guilty  whenever 
the  facts  constituting  guilt  are  not  disputed. 
U.  S.  v.  Anthony,  11  Blatcli,  200;  contra, 
Howell  V.  People,  13  N.  Y.  Supm.  N.  S.  620. 

14.  Determining  verdict  by  experiment- 
The  jury  cannot  lawfully  arrive  at  their  ver- 
dict by  experiments,  such  as  sending  the 
constable  out  of  the  room,  closing  the  door, 
and  then  talking,  with  a  view  to  learn 
whether  their  voices  can  be  heard  outside; 
or  running,  with  a  view  to  ascertain  whether 
their  tracks  will  be  longer  or  shorter  than 
when  walking,  and  the  like.  Jim  v.  State, 
4  Humph.  289. 

15.  Jury  entertaining  doubt.  A  doubt 
to  justify  an  acquittal,  must  be  reasonable, 
and  arise  from  a  candid  and  imijartial  in- 
vestigation of  all  the  evidence  in  the  case. 
Unless  it  is  such  that  were  the  same  kind  of 
doubt  interposed  in  the  graver  transactions 
of  life,  it  would  cause  a  reasonable  and  pru- 
dent man  to  hesitate,  it  is  insufficient  to  au- 


thorize a  verdict  of  not  guilty.  Miller  v. 
People,  39  111.  457 ;  May  v.  People,  60  lb. 
119. 

2.  Nattjre  akd  kequisites. 

(a)   General  verdict. 

16.  Must  respond  to  charge.  No  find- 
ing of  the  jury  can  enlarge  the  ofiense 
charged  in  the  indictment.  By  finding  the 
prisoner  "  guilty  as  he  stands  indicted,"  the 
jury  make  the  indictment  a  part  of  the  ver- 
dict, and  it  is  the  same  as  finding  a  special 
verdict  stating  the  facts  as  set  forth  in  the 
indictment.  State  v.  Cleveland,  58  Maine, 
564 ;  Fitzgerald  v.  People,  49  Barb.  122. 

17.  If  the  prosecution  is  able  to  prove  the 
defendant  guilty  of  a  criminal  ofi"ense  plain- 
ly charged  in  the  indictment,  he  should  be 
convicted  of  that  ofl"ense,  though  other  facts 
are  stated  which,  if  proved,  would  show  him 
guilty  of  an  ofiense  of  a  different,  or  even  of 
a  higher  grade.  White  v.  People,  32  N.  Y. 
465.     See  Henley  v.  State,  6  Ohio,  400. 

18.  On  the  trial  of  an  indictment  for  as- 
sault and  battery  with  intent  to  kill  and 
murder,  the  verdict  was  guilty  of  assault 
with  intent  to  commit  manslaughter.  Held, 
that  the  variance  was  fatal.  Mormau  v. 
State,  24  Miss.  54. 

19.  On  the  trial  of  an  indictment  for 
breaking  open  a  storehouse  and  stealing 
therefrom  goods  to  the  value  of  four  dollars, 
the  defendant  was  found  guilty  of  grand 
larceny.  Held  that  no  judgment  could  be 
entered  on  the  verdict.  Com.  v.  Smith,  2 
Va.  Cas.  327. 

20.  A  general  verdict  of  guilty  in  prose- 
cutions where  value  constitutes  an  essential 
element  in  the  definition  of  the  crime,  and 
the  mode  of  punishment,  is  a  finding  upon 
the  whole  indictment,  including  the  aver- 
ment of  value.     State  v.  White,  25  Wis.  369. 

21.  To  authorize  a  conviction  under  part 
of  an  indictment  for  felony,  the  part  of 
which  the  prisoner  is  found  guilty  must  of 
itself  constitute  a  felony.  Com.  v.  Newell, 
7  Mass.  245. 

22.  Under  indictment  charging  dis- 
tinct offenses.  A  general  verdict  of  guilty 
under  an  indictment  charging  two  offenses, 
properly  joined  in  different  counts,  will  au- 


VERDICT. 


639 


Nature  and  Requisites. 


General  Verdict. 


thorize  a  verdict  and  sentence  for  the  pun- 
ishment prescribed  for  one  of  the  offenses. 
Cawley  v.  State,  37  Ala.  153. 

23.  When  the  indictment  charges  distinct 
offenses  in  separate  counts,  the  jury  must 
pass  upon  each  count  separately,  and  apply 
to  it  the  evidence  bearing  upon  the  defend- 
ant's guilt  of  the  offense  therein  charged; 
and  if  they  fail  to  do  so,  their  verdict  can- 
not be  sustained.  Com.v.Carey,103  Mass.314. 

24.  In  Ohio,  it  has  been  held  that  when 
the  indictment  charges  distinct  offenses, 
subject  to  different  degrees  of  punishment, 
the  verdict  must  affirm  or  negative  each 
charge.     Wilson  v.  State,  30  Ohio,  36. 

25.  In  Illinois,  where  an  indictment 
charges  a  burglary  in  one  count  and  a  lar- 
ceny in  another  count,  and  the  defendant  is 
found  guilty  generally,  and  a  punishment  is 
imposed  which  is  by  law  authorized  to  be 
inflicted  for  the  offense  charged  in  either 
count,  the  verdict  will  be  sustained.  Lyons 
V.  People,  68  111.  371. 

26.  For  part  of  offense.  In  Maine,  the 
defendant  may,  by  the  statute  (ch.  166,  §  7), 
be  acquitted  of  a  part  of  the  offense  for 
which  he  is  indicted,  and  found  guilty  of 
the  residue.     State  v.  Payson,  37  Maine,  361. 

27.  For  offense  consisting  of  different 
degrees.  Where  one  and  the  same  crime  is 
•charged  in  different  counts,  alleging  the 
commission  of  different  grades  of  the  same 
offense,  a  general  verdict  of  guilty  will  be 
held  to  apply  to  the  offense  of  the  highest 
grade.  State  v.  Hood,  51  Maine,  363;  Cur- 
tis V.  State,  36  Ark.  439. 

28.  AVhere  the  offense  described  in  the 
indictment  comprehends  various  circum- 
stances, each  of  which  is  an  offense,  a  de- 
fendant charged  with  a  greater  offense  thus 
described  may  be  convicted  of  one  of  lesser 
degree  contained  in  it.  Swinney  v.  State,  8 
Smed.  &  Marsh.  576.  Under  an  indictment 
for  assaulting  and  obstructing  an  officer  in 
the  service  of  civil  process,  the  defendant 
may  be  convicted  of  assault  and  battery. 
State  V.  Webster,  39  New  Hamp.  98. 

29.  Where  the  evidence  creates  a  doubt  in 
the  minds  of  the  jury  as  to  the  degree  of 
murder  of  which  the  prisoner  is  guilty,  it  is 
their  duty  to  find  a   verdict  for  the  lesser 


degree.     People  v.  Lamb,  3  Keyes,  360,  per 
Smith,  J. ;  affi'g  54  Barb.  342. 

30.  The  defendant  was  charged  with  an 
assault  and  battery,  with  the  additional 
averment  that  "  the  said  assault  and  bat- 
tery was  not  committed  with  intent  to  com- 
mit any  other  offense,  nor  with  a  weapon 
dangerous  to  life."  It  was,  however,  proved 
that  the  assault  was  committed  with  a 
weapon  dangerous  to  life.  Held,  after  con- 
viction of  simple  assault,  that  the  defend- 
ant had  no  ground  of  exception.  Com.  v. 
Burke,  14  Gray,  100. 

31.  When  the  act  for  which  the  accused 
is  indicted  is  the  same  for  which  he  is  con- 
victed, the  conviction  of  a  lower  degree  is 
proper,  although  the  indictment  contains 
averments  constituting  the  offense  of  the 
highest  degree  of  the  species  of  crime,  and 
omits  to  state  the  particular  intent  and 
circumstances  characterizing  a  lower  degree 
of  the  same  crime.  Keefe  v.  People,  40 
N.  Y.  348;  People  v.  Thompson,  41  lb.  1. 

32.  On  the  trial  of  an  indictment  for  forg- 
ing a*  note,  the  jury  found  the  defendant 
guilty  of  attempting  to  pass  the  note,  know- 
ing that  it  was  forged.  Held  that  the  ver- 
dict was  good.     State  v.  Fuller,  1  Bay,  245. 

33.  J.  S.  was  indicted  for  maiming  J.  E., 
under  a  statute  making  it  felony,  but  pro- 
viding that  where  the  parties  fought  by 
mutual  agreement  it  should  be  a  less  offense. 
The  verdict  was:  "We,  the  jury,  do  find 
the  within  named  J.S.  not  guilty  as  charged 
in  the  within  indictment,  but  find  that  he 
and  the  within  named  J.  E.  fought  by 
mutual  agreement.  Held  that  although  the 
verdict  ought  to  have  stated  more  explicitly 
that  the  accused  was  not  guilty  as  charged, 
but  that  he  and  J.  E.  fought  by  mutual 
agreement,  whereby  the  latter  was  maimed, 
yet  that  as  it  would  bear  that  construction, 
it  was  sufficient.  Strawu  v.  State,  14  Ark. 
549. 

34.  Under  an  indictment  for  a  felony, 
the  accused  may  be  convicted  of  a  misde- 
meanor when  both  offenses  belong  to  the 
same  generic  class,  and  the  indictment  for 
the  higher  offense  contains  all  the  averments 
necessary  to  let  in  proof  of  the  luisdemeanor. 
Cameron  v.  State,  8  Eug:.  713. 


640 


VERDICT. 


Nature  and  Requisites. 


General  Verdict. 


35.  In  North  Carolina,  the  rule  of  the 
common  law  prevails,  that  under  an  indict- 
ment for  a  felony  there  cannot  be  a  convic- 
tion of  a  minor  offense  included  in  it,  if 
such  minor  offense  be  a  misdemeanor.  State 
V.  Durham,  72  N.  C.  447. 

36.  In  Iowa,  it  has  been  held  that  when 
the  accused  is  prosecuted  for  a  higher 
offense  than  he  can  be  convicted  for  under 
the  indictment,  he  cannot  be  legally  con- 
victed of  a  lower  grade  of  the  offense,  not- 
withstanding the  indictment  is  good  as  to 
the  latter.  State  v.  Boyle,  28  Iowa,  522; 
approving  State  v.  Tweedy,  11  lb.  350, 
Williams,  J.,  dissenting  ;  State  v.  Knouse,  29 
lb.  118;  State  v.  McNally,  32  lb.  580. 

37.  Under  indictment  containing  sev- 
eral counts.  There  may  be  a  general  ver- 
dict of  guilty  where  the  evidence  is  appli- 
cable to  either  count  of  the  indictment. 
Bennett  v.  State,  8  Humph.  118;  and  one 
good  count  is  sufficient.  Com.  v.  Hawkins, 
3  Gray,  463 ;  State  v.  Burke,  38  Maine,  574 : 
State  V.  Mayberj',  48  lb.  218;  Guenther  v. 
People,  24  N.  Y.  100. 

38.  Where  an  indictment  contains  good 
and  bad  counts,  a  general  verdict  will  be 
referred  to  the  former.  West  v.  State,  2 
Ala.  212;  Shaw  v.  State,  18  Ala.  547; 
Brown  v.  State,  5  Eng.  607 ;  Turk  v.  State, 
7  Ohio,  240 ;  State  v.  Jennings,  18  Mo.  435 ; 
Curtis  V.  People,  Breese,  197;  Harris  v. 
Purdy,  1  Stewart,  231 ;  State  v.  Hooker,  17 
Vt.  658;  Bently  v.  State,  13  lb.  468;  Wash 
V.  State,  14  Smed.  &  Marsh.  120;  Frazier  v. 
State,  5  Mo.  536 ;  Roberts  v.  State,  14  Ga. 
8 ;  Baron  v.  People,  1  Parker,  246 ;  People 
V.  Wiley,  3  Hill,  194;  State  v.  Anderson,  1 
Strobh.  455;  State  v.  Sutton,  3  Gill,  194; 
People  V.  Davis,  45  Barb.  494. 

39.  When  all  the  counts  of  an  indictment 
are  substantially  for  the  same  offense,  and 
differ  only  in  the  description  of  the  means 
used  to  accomplish  it,  a  general  verdict  may 
be  rendered.  State  v.  Wright,  53  Maine, 
328.  And  the  judge  is  not  bound  to  direct 
the  jury  to  bring  in  separate  findings.  State 
V.  Lang,  63  lb.  215.  But  the  defendant  is 
entitled  to  a  verdict  upon  each  and  all  the 
substantive  charges  in  the  indictment,  and 
it  is  the  duty  of  the  court  to  require  the  jury 


to  respond  distinctly  to  the  several  counts 
contained  therein.  When  the  verdict  is 
guilty  on  one  of  several  counts,  and  silent 
as  to  the  rest,  it  is  tantamount  to  an  acquit- 
tal as  to  the  latter.  State  v.  Phinney,  42 
lb.  384;  State  v.  Watson,  63  lb.  128;  Mar- 
tin V.  State,  28  Ala.  71. 

40.  On  the  trial  of  an  indictment  contain- 
ing twenty  counts,  the  verdict  was :  ' '  We, 
the  jury,  find  the  defendant  guilty  on  ten 
counts,"  on  which  the  court  rendered  judg- 
ment. Held  error.  The  verdict  should  have 
specified  the  counts  on  which  the  jury  found 
the  defendant  guilty.  Day  v.  People,  76 
111.  380. 

41.  Under  indictment  against  several. 
Where  the  indictment  charges  several  with 
a  joint  offense,  they  cannot  be  found  guilty 
separately  of  separate  parts  of  the  charge. 
Hall  V.  State,  8  Ind.  439. 

42.  Though  several  concerned  in  the  same 
offense  may  be  jointly  indicted  and  tried, 
yet  the  verdict  and  judgment  should  be 
several.     Straughan  v.  State,  16  Ark.  37. 

43.  Where  the  indictment  is  against  two 
or  more,  the  charge  is  several  as  well  as 
joint,  so  that  if  one  is  found  guilty  verdict 
and  judgment  may  be  rendered  against  him. 
The  exceptions  to  the  rule  are  where  the 
agency  of  two  or  more  is  of  the  essence  of 
the  offense,  as  in  conspiracy  and  riot,  and 
perhaps  in  some  other  cases.  Com.  v. 
Griffin,  3  Cush.  523. 

44.  Although  several  are  jointly  indicted 
for  distinct  offenses,  which  are  not  sus- 
ceptible of  being  committed  by  more  than 
one  person,  yet  if  the  defendant  on  trial  is 
charged  with  committing  an  offense,  he  may 
convicted.  Weatherford  v.  Com.  10  Bush, 
Ky.  196. 

45.  Except  in  indictments  for  offenses 
necessarily  joint,  joint  defendants  may  be 
convicted  of  different  degrees  of  criminality 
in  the  same  offense.  Where  therefore  two 
are  jointly  indicted  for  the  same  larceny,  one 
of  them  may  be  convicted  of  an  attemjit 
to  commit  it  and  the  other  of  the  full 
crime.  Klein  v.  People,  31  K  Y.  229.  Or 
some  of  the  defendants  may  be  convicted 
and  others  acquitted,  except  in  cases  where 
the  conviction  is  of  an  offense  to  constitute 


YEEDICT. 


641 


Nature  and  Requisites.     Special  Verdict.      How  Recorded. 


Validity. 


which  all  must  have  participated.  People 
v.  White,  55  Barb.  606. 

46.  Where  several  are  jointly  iuclicted  and 
tried  for  murder,  the  court,  upon  the  con- 
clusion of  the  evidence  for  the  prosecution 
may,  in  the  exercise  of  its  discretion,  submit 
to  the  jury  the  cases  of  any  of  the  prisoners, 
and  if  the  evidence  against  them  be  slight 
may  advise  the  jury  to  acquit,  and  if  the 
jury  concur  with  the  court  in  this  opinion, 
they  may  at  once  return  a  verdict  of  not 
guilty.  But  this  is  a  matter  resting  wholly 
in  the  discretion  of  the  court.  State  v. 
O'Brien,  7  R.  I.  336. 

47.  Need  not  find  malice.  Where  an 
offense  consists  in  doing  acts  prohibited  by 
a  statute,  the  jury  need  not  find  that  the 
defendant  was  actuated  by  express  malice, 
but  only  that  he  was  guilty  of  the  act. 
People  V.  Reed,  47  Barb.  235. 

48.  Must  be  oral.  A  written  verdict, 
unless  directed  by  the  court,  is  irregular  and 
may  be  rejected.  Lord  v.  State,  16  New 
Hamp.  825. 

49.  Sealed  verdict.  If  the  jury  separate 
after  being  sent  out,  the  fact  that  they 
agreed  before  they  separated  must  be  shown 
by  a  verdict  sealed  up  and  brought  into 
court,  where  it  must  be  opened  and  read, 
and  their  verdict  after  such  separation  can- 
not be  otherwise  received.  Com.  v.  Durfee, 
100  Mass.  146.  See  Com.  v.  Doru?,  108 
Mass.  488. 

50.  The  jury  on  a  trial  for  larceny  were 
told  that  if  they  agreed  tliey  might  bring  in 
a  sealed  verdict,  and  the  following  form  was 
handed  to  them :  "  In  case  of  Common- 
wealth V.  ,  the  jury  find  defendant 

guilty  or  not  guilty,  as  the  case  may  be." 
The  foreman  of  the  jury  upon  their  agreeing 
added  the  word  "  guilty  "  to  the  foregoing, 
and  signed  his  name.  Afterward  when 
their  verdict  sealed  up  was  brought  by 
them  into  court  it  was  handed  by  the  fore- 
man to  the  clerk,  and  opened  by  the  latter 
and  read  to  the  jury,  and  they  were  then 
asked  if  their  verdict  was  that  the  defend- 
ant was  guilty,  to  which  they  replied  in  the 
affirmative.  The  court  thereupon  ordered 
the  paper  to  be  filed  as  a  verdict,  and  the 

41 


clerk  to   record    a  verdict  of  guilty.     Held 
proper.     Com.  v.  Carrington,  116  Mass.  37. 

51.  Recommending  to  mercy.  A  recom- 
mendation of  the  prisoner  to  mercy  is  ad- 
dressed exclusively  to  the  court,  and  is  no 
part  of  the  verdict.  People  v.  Lee,  17  Cal. 
76. 

(5)  Special  verdict. 

52.  Must  be  definite.  Where  a  special 
verdict  does  not  state  that  the  jury  find  in 
one  way  or  another  according  to  the  law  as 
determined  by  the  court,  it  will  be  insuffi- 
cient, and  there  will  have  to  be  a  new  trial. 
State  V.  Wallace,  3  Ired.  195. 

53.  Must  ascertain  facts.  A  special  ver- 
dict must  find  facts,  and  not  merely  the  evi- 
dence from  which  they  may  be  inferred. 
State  V.  Watts,  10  Ired.  369.  And  the  facts 
found  must  be  of  an  unequivocal  character, 
otherwise  the  com't  cannot  determine  the 
guilt  or  innocence  of  the  defendant  as  a 
question  of  law.  State  v.  Curtis,  71  N.  C. 
56 ;  s.  c.  2  Green's  Crim.  Reps.  748. 

54.  Must  find  that  offense  was  com- 
mitted in  county.  A  special  verdict  which 
finds  the  defendant  guilty  of  the  acts 
charged,  but  not  finding  that  they  were 
committed  in  the  county  where  the  venue  is 
laid,  is  bad.     Com.  v.  Call,  21  Pick.  509. 

55.  Consequences  of  being  set  aside. 
Where  a  special  verdict  is  set  aside,  the 
court  cannot  enter  a  general  verdict,  but  the 
case  must  be  sent  to  a  new  jury.  State  v. 
Moore,  7  Ired.  228. 

3.    How   RECORDED. 

56.  Must  be  in  English.  In  Louisiana, 
the  verdict  must  be  recorded  in  the  English 
language,  and  where  it  is  in  French  the 
court  cannot,  after  the  jury  are  discharged, 
order  it  to  be  translated  into  English.  State 
V.  Walters,  15  La.  An.  648. 

4.  Validity. 

57.  Must  be  delivered.  A  verdict  has 
no  validity  until  delivered  by  the  jury  in 
court.     State  v.  Mills,  19  Ark.  476. 

58.  Must  have  been  arraignment  and 
plea.  A  verdict  where  there  has  been 
•neither  arraignment  or  plea  is  a  nullity,  and 


642 


VERDICT.— VESSEL.— VOTING. 


Validity.     When  Evidence.     Adding  to  Equipment.      Disfranchisement  of  Citizen. 


the  defect  is  not  cured  by  the  defendant's 
moving  for  a  separate  trial,  or  the  introduc- 
tion of  witnesses  by  him,  or  by  the  argu- 
ment on  his  behalf  to  the  jury.  People  v. 
Corbett,  28  Cal.  328. 

59.  Inaccuracies.  A  name  so  badly 
spoiled  as  to  change  the  sound,  will  not 
vitiate  a  verdict.  State  v.  Floroz,  5  La.  An. 
429. 

60.  An  indictment  for  murder  charged 
the  accused  by  the  name  of  James  B.  Boggs. 
The  verdict  was  as  follows  :  "  We  find  the 
defendant,  J.  M.  Boggs,  guilty  of  man- 
slaughter." Held  that  the  verdict  was  suffi- 
cient, the  words  "  J.  M.  Boggs,"  being  sur- 
plusage. People  V.  Boggs,  20  Gal.  432.  See 
People  V.  All  Kim,  34  Ih.   189. 

61.  Misconduct  of  jury.  In  Virginia,  it 
has  been  held  that  the  use  by  the  jury  of  ar- 
dent spirits  in  moderation  is  not  such  an  ir- 
regularity as  will  vitiate  the  verdict. 
Thompson  v.  Com.  8  Gratt.  637. 

62.  The  misconduct  of  jurors  being  estab- 
lished, it  imposes  on  the  prosecution  the 
neeessity  of  removing  suspicion  by  showing 
that  the  offending  jurors  were  not  influenced 
adversely  to  the  defendant,  or  in  any  respect 
rendered  less  capable  of  discharging  their 
duties.     Creek  v.  State,  24  Ind.  151. 

63.  Jurors  not  permitted  to  impeach 
verdict.  The  testimony  of  jurors  is  not 
admissible  to  explain  the  grounds  of  their 
decision,  or  to  impeach  the  validity  of  their 
finding.  Com.  v.  Skeggs,  3  Bush,  ]  9 ;  Peo- 
ple v.  Hartung,  4  Parker,  256 ;  Reins  v. 
People,  30  III.  256;  State  v.  McLeod,  1 
Hawks,  344;  Bishop  v.  State,  9  Ga.  121. 
Contra,  State  v.  Freeman,  5  Conn.  348. 

64.  After  a  conviction  for  murder,  a  juror 
stated  that  "  he  did  not  agree  to  the  verdict, 
but  suffered  it  to  be  brought  in,  because  he 
could  not  control  the  rest  of  the  jury." 
Held  that  he  could  not  be  allowed  in  this 
way  to  impeach  his  verdict.  Mercer  v. 
State,  17Ga.  146. 

65.  Testimony  of  jurors  to  sustain  ver- 
dict. The  affidavits  of  the  jurors  themselves 
in  answer  to  a  charge  of  irregularity  or 
abuse,  are  usually  received,  though  not  re- 
regarded  as  entitled  to  a  great  deal  of 
weight.     Eastwood  v.  Peojjle,  3  Parker,  25. 


66.  Tlie  affidavits  of  the  jurors  are  com- 
petent evidence  to  prove  that  they  did  not 
read  or  hear  read  any  papers  before  their 
verdict.     State  v.  Hascall,  6  N.  Hamp.  352. 

5.  When  evidence. 

67.  Under    plea    of   former  acquittal. 

On  a  plea  of  fonner  acquittal,  the  former 
verdict  may  be  given  in  evidence  without 
judgment  thereon.  West  v.  State,  2  Ala. 
212. 

68.  On  trial  of  principal  in  second  de- 
gree. The  indictment,  judgment,  and  ver- 
dict against  the  principal  in  the  first  degree, 
may  be  given  in  evidence  on  the  trial  of  the 
principal  in  the  second  degree.  Studstill  v. 
State,  7  Ga.  2. 

See  Judgment;  Trial.  As  to  setting 
aside  verdict,  see  New  trial.  For  verdict 
in  the  several  offenses,  see  the  titles  of  those 
offenses. 


bcsscl. 


1.  Adding  to  equipment.  Adding  to  the 
number  or  size  of  the  guns  of  a  belligerent 
vessel  which  was  armed  when  she  .arrived  at 
the  United  States,  or  adding  to  her  any  war- 
like equipment,  was  held  indictable  under 
the  fourth  section  of  the  act  of  Congress  of 
June  5th,  1794.  U.  S.  v.  Grassin,  3  Wash. 
C.  C.  65. 

2.  Destruction.  On  the  trial  of  an  indict- 
ment for  casting  away  and  destroying  a 
vessel  with  the  intention  of  injuring  the 
underwriters,  the  prosecution  must  prove  a 
valid  insurance.  U.  S.  v.  Johns,  1  Wash.  C. 
C.  363. 


botiug. 


1.  Disfranchisement  of  citizen. 

2.  Illegal  voting. 

{a)   Offense  in  general, 
(i)  Indictment. 
{(i)  Evidence. 

3.  Betting  at  election. 

1.  Disfranchisement  of  citizen. 
1.  On  account  of  desertion.    A  citizen  of 


YOTING-. 


643 


Disfranchisement  of  Citizen.       Illegal  Voting.      Offense  in  General.      Indictment. 


the  State  cannot  be  deprived  of  the  right  of 
suffrage,  or  any  right  of  citizenship  under 
the  act  of  Congress  (ch.  79,  §  21,  approved 
March  2d,  1865),  on  the  ground  of  desertion, 
until  after  trial,  conviction  and  sentence  by 
a  court  martial,  and  the  approval  of  the 
same  by  the  proper  authority.  State  v. 
Symonds,  57  Maine,  148. 

2.  By  striking  name  from  list  of  voters. 
In  New  Hampshire,  where  selectmen  in  the 
honest  and  diligent  discharge  of  their  duties, 
erased  the  name  of  a  legal  voter  from  the 
list,  and  refused  to  insert  it,  it  was  held  that 
they  were  not  liable.  State  v.  Smith,  18 
New  Hamp.  91. 

2.    Illegal   voting. 
(a)   Offense  in  general. 

3.  How  regarded.  Voting  more  than 
once  at  the  same  election  is  an  indictable 
offense  at  common  law.  Com.  v.  Silsbee,  9 
Mass.  417. 

4.  What  constitutes.  When  a  person 
votes  knowing  at  the  time  the  existence  of 
facts  which  disqualify  him  in  point  of  law, 
he  is  guilty  of  a  misdemeanor.  McGuire  v. 
State,  7  Humph.  54.  But  to  make  a  person 
voting  or  attempting  to  vote,  liable,  he  must 
know  at  the  time  that  he  is  not  a  qualified 
voter.  Com.  v.  Aglar,  Thach.  Crim.  Cas. 
412.  Such  knowledge  will  generally  be  pre- 
sumed. Com.  V.  Wallace,  lb.  592 ;  Com.  v. 
Bradford,  9  Mete.  268. 

5.  Voting  at  illegal  election.  It  is  not 
a  defense  to  an  indictment  for  illegal  voting 
that  the  election  was  conducted  illegally. 
State  V.  Cohoon,  12  Ired.  178. 

6.  If  a  supervisor  acting  as  a  member  of 
the  board,  knowingly,  corruptly,  unlawfully 
and  partially,  votes  that  an  account  present- 
ed against  the  county  as  a  county  charge  be 
allowed  and  made  a  charge  against  the 
county,  he  is  guilty  of  a  misdemeanor ;  and 
it  is  no  defense  that  the  i)oard  acted  without 
jurisdiction.  People  v.  Stocking,  6  Parker, 
263. 

7.  Aiding  and  abetting  illegal  voting. 
To  make  a  person  a  willful  aider  and  abettor 
in  illegal  voting  under  the  statute  of  Massa- 
chusetts, he  must  know  at  the  time  that  the 
person   was  disqualified  as  a  voter,  and  he 


must  have  done  or  said  something  which 
was  designed  and  calculated  to  encourage 
the  party  to  vote.  Com.  v.  Aglar,  Thach. 
Crim.  Cas.  412. 

8.  AVhere  a  son  resisted  by  threats  a 
demand  made  upon  his  father  by  the  judges 
of  an  election  to  answer  certain  questions 
which  the  judges  had  no  right  to  ask,  he 
was  held  not  liable  to  an  indictment  under 
the  election  law  of  Pennsylvania.  Com.  v. 
Gibbs,  4  Ball.  253. 

9.  Preventing  persons  from  voting.  On 
the  trial  of  an  indictment  for  preventing 
voters  from  exercising  the  right  of  suffrage 
it  was  proved  that  whilst  the  room  at  which 
the  election  was  held  was  well  filled  with 
colored  voters,  waiting  for  an  ojjportunity 
to  cast  their  ballots,  a  violent  attack  was 
made  upon  them  by  the  defendant  and 
others,  driving  them  forcibly  from  the  room 
into  the  street  and  closing  or  attempting  to 
close  the  door  against  them,  but  that  they 
subsequently  went  back  and  voted,  lleld 
sufficient  to  sustain  a  conviction  under  the 
act  of  Congress  of  May  31,  1870,  §  19  (16 
Stats,  at  Large,  144).  U.  S.  v.  Souders,  2 
Abb.  456. 

(b)  Indictment. 

10.  Must  aver  the  grounds  of  the  de- 
fendant's disability.  Where  a  person  is 
charged  with  voting  at  an  election  without 
being  qualified,  the  indictment  must  show 
the  grounds  of  his  disqualification.  People 
V.  Standish,  6  Parker,  111;  State  v.  Moore, 
3  Dutch.  105;  State  v.  Tweed,  lb.  Ill; 
Quinn  v.  State,  35  Ind.  485. 

11.  Unnecessary  averments.  An  in- 
dictment under  the  statute  of  New  York, 
for  a  misdemeanor  in  voting  at  a  general 
election  after  conviction  of  crime,  need 
not  contain  the  words  "  knovvingly,  will- 
fully and  corruptly,"  and  if  inserted  they 
will  be  regarded  as  surplusage ;  the  word 
"  unlawfully  "  being  all  that  is  necessary. 
Hamilton  v.  People,  57  Barb.  625. 

12.  An  indictment  for  illegal  voting  at  a 
town  meeting  is  sufficient,  which  states  that 
the  meeting  was  duly  holden,  without  setting 
forth  the  authority  by  which  the  meeting 


644 


VOTING. 


Illegal  Voting. 


Indictment. 


Evidence. 


was  called,    or   the   manner   of  calling  it. 
State  Y.  Marshall,  45  New  Harap.  281. 

13.  Form  of  indictment.  In  Maine,  the 
following  indictment  for  double  voting  at  a 
State  election  (R.  S.  ch.  4,  §61),  was  held 
good :  "  That  on  the  14th  day  of  September, 
18G8,  at,  &c.,  a  meeting  of  the  inhabitants 
of  &c.,  for  the  election  of  (certain  State  and 
county  officers  specified),  and  representatives 
of  the  Legislature  for  said,  &c.,  was  then 
and  there  duly  held;  and  at  said  election, 
a  list  of  the  voters  of,  &c.,  was  necessary; 
that  the  defendant  did  then  and  there  at  the 
meeting  and  election  aforesaid,  willfully, 
knowingly,  and  unlawfully  cast  and  give  in 
more  than  one  vote,  ballot  and  list  of  persons 
then  and  there  to  be  elected  and  chosen  into 
the  said  ofiices  at  one  balloting,  at  the 
choice  and  selection  aforesaid,  against  the 
peace,''  &c.  State  v.  Boyington,  56  Maine, 
513. 

(c)  Ecidence. 

14.  In  behalf  of  prosecution.  The  essence 
of  the  ofl'euse  of  illegal  voting  is,  that  the 
defendant  voted  knowing  that  he  was  dis- 
qualified. Under  the  indictment,  any  dis- 
ability may  be  shown ;  or  the  jirosecution 
may  prove  from  the  admissions  of  the  defend- 
ant or  otherwise  that  he  knew  he  was  disqual- 
ified, and  was  in  fact  disqualified,  without 
showing  in  what  the  disqualification  con- 
sisted.    State  v.  Douglass,  7  Iowa,  413. 

15.  Where  an  indictment  for  illegal  vot- 
ing at  an  election  for  State  officers,  did  not 
allege  that  the  defendant  was  a  deserter  from 
the  United  States  army,  it  was  held  that 
the  fact  of  such  desertion  could  not  be 
proved  on  the  trial,  by  the  admissions  of  the 
defendant,  nor  by  the  roll  of  the  company 
to  which  he  belonged.  State  v.  Symonds, 
57  Maine,  148. 

16.  For  defense.  "Where  on  the  trial  of 
an  indictment  for  a  misdemeanor  for  voting 
at  a  general  election,  after  conviction  of 
felony,  the  prosecution  introduces  no  proof 
beyond  the  act  itself,  to  show  that  the  con- 
duct of  the  accused  was  willful  or  corrupt, 
the  latter  need  not  prove  the  absence  of  will- 
fulness or  corruption.  Hamilton  v.  Peojjle, 
57  Barb.  625. 


17.  On  the  trial  of  an  indictment  under  a 
statute  making  it  a  felony  for  any  person 
other  than  an  inspector  of  elections  to  know- 
ingly and  willfully  jjut,  or  cause  to  be  put 
ballots  into  a  ballot  box  at  an  election,  the 
defendant  admitted  that  he  was  not  an. 
inspector,  and  that  he  did  put  ballots  into  a 
ballot  box  at  an  election ;  but  he  sought  to 
prove  that  he  was  acting  as  inspector  instead 
of  one  C,  who  had  by  power  of  attorney 
appointed  the  defendant  to  act  in  his  place. 
Held  that  the  evidence  was  properly  rejected. 
Hogau  V.  People,  2  N.  Y.  Supm.  N.  S.  535. 

18.  On  the  trial  of  an  indictment  for 
fraudulent  voting,  the  defendant's  state- 
ments under  oath  at  the  polls,  on  being 
challenged,  and  the  decision  of  the  judgesof 
election  in  favor  of  his  right  to  vote,  are  not 
competent  evidence  in  his  behalf.  Morris 
V.  State,  7  Blackf.  607. 

19.  Although  ignorance  of  the  law  will 
not  excuse,  yet  a  person  may  be  excused  for 
having  committed  an  act  by  reason  of  his 
ignorance  of  facts,  which  ignorance  of  facts 
he  may  prove  to  rebut  the  presumption  of 
knowledge,  and  to  show  an  innocent  intent. 
Hamilton  v.  People,   57  Barb.  625. 

20.  On  the  trial  of  an  indictment  for  a 
misdemeanor  for  voting  at  a  general  elec- 
tion, after  conviction  of  felony,  contrary  to 
the  statute  of  New  York,  the  following  evi- 
dence was  deemed  equivalent  to  an  offer  to 
prove  ignorance  of  the  law,  and  therefore 
inadmissible  :  That  before  the  accused  was 
discharged  from  State  prison,  he  applied  to 
the  governor  for  pardon,  and  that  the  gov- 
ernor replied  in  writing  that,  on  account  of 
the  prisoner's  being  a  minor  at  the  time  of 
his  discharge  from  prison,  a  pardon  would 
not  be  necessary  in  his  case;  that  he  then 
stated  his  case  to  two  counsel  of  the  Su- 
preme Court,  and  was  advised  by  both  of 
them  that  the  right  of  voting  was  not  taken 
away  from  him  by  the  conviction,  and  that 
on  his  coming  of  age  he  would  have  a  per- 
fect right  to  vote.     lb. 

21.  It  is  no  defense  to  an  indictment  for 
illegal  voting,  that  the  defendant  was  ad- 
vised by  a  respectable  jjerson  that  he  had  a 
right  to  vote.  State  v.  Boyett,  10  Ired.  336. 
But  otherwise,  if  he  made  a  true  statement 


YOTING.— WAREANT. 


645 


Illegal  Voting.     Betting  at  Election. 


Right  and  Duty  of  Magistrate  to  Issue. 


of  the  facts  of  his  case,  to  a  person  capable 
of  advising  him  coiTcctly.  Com.  v.  Brad- 
ford, 9  Mete.  268. 

22.  On  the  trial  of  an  indictment  for 
voting  twice  at  the  same  election,  the  de- 
fendant may  show  that  he  was  intoxicated 
at  the  time.     People  v.  Harris,   29  Cal.  678. 

3.  Betting  at  election. 

23.  What  deemed  a  bet.  A  sale  of  prop- 
erty to  be  paid  for  at  its  fair  value,  or  at 
more  than  its  fair  value,  in  a  certain  event 
of  a  pending  election,  and  not  to  be  paid 
for  at  all,  or  to  be  paid  for  at  more  or  less 
than  its  real  value,  as  understood  between 
the  parties  in  a  different  event  of  the  same 
election,  constitutes  a  bet.  Com.  v.  Shouse, 
16  B.  Mon.  325. 

24.  When  not  indicta,ble.  In  Tennessee, 
betting  on  an  election  to  be  held  in  another 
State,  is  not  indictable ;  and  the  same  is  true 
as  to  betting  on  the  result  of  an  election  in 
Tennessee,  after  the  election  is  over.  State 
V.  McLelland,  4  Sneed,  437. 

25.  Prosecution  when  barred.  When  a 
bet  is  made  upon  several  different  results  of 
the  same  election,  the  whole  to  be  taken  as 
one  l?et,  a'  conviction  for  one  will  bar  a 
prosecution  for  the  rest.  Ramsey  v.  State, 
5  Sneed,  G52. 

26.  Indictment.  An  indictment  for  bet- 
ting on  an  election  with  reference  to  the 
success  or  defeat  of  a  certain  person,  must 
allege  that  such  person  was  a  candidate,  or 
was  proposed  or  voted  for,  for  an  office. 
Com.  v.  Shouse,  16  B.  Mon.  325.  But  it  is 
otherwise  as  to  an  indictment  for  bribery  at 
an  election.  Com.  v.  Stephenson,  3  Mete. 
Ey.  226. 

27.  An  indictment  for  betting  on  an  elec- 
tion for  president  and  vice-i^resident  of  the 
United  States,  is  good,  without  referring  to 
the  electors.  Porter  v.  State,  5  Sneed,  358 ; 
Somers  v.  State,  lb.  438. 

28.  Evidence.  An  indictment  for  bet- 
ting on  the  result  of  an  election  charged  that 
the  bet  was  made  before  the  election  was 
held.  The  proof  showed  that  the  bet  was 
made  afterward,  but  before  the  result  was 
known.  Held,  that  the  variance  w»as  not 
material.    Miller  v.  State,  33  Miss.  356. 


29.  An  indictment  charged  that  the  de- 
fendant bet  money  on  the  result  of  an  elec- 
tion for  State  electors  to  vote  for  president 
and  vice-president  of  the  United  States.  It 
was  proved  that  the  defendant  bet  on  the 
result  of  the  State  election  between  the  then 
candidates  for  president  and  vice-president 
of  the  United  States.  Held  that  the  va- 
riance was  fatal.  Gamble  v.  State,  35  Miss. 
222. 

30.  Decision  of  inspectors  of  election  as 
to  bet.  Whether  or  not  a  person  offering  a 
vote  has  bet  on  the  result  of  the  election,  is 
a  mixed  question  of  law  and  fact,  in  the  de- 
termination of  which  the  inspectors  act  in  a 
quasi  judicial  capacity;  and  if,  in  deciding 
it,  they  act  honestly,  and  to  the  best  of  their 
ability,  they  are  not  liable.  Byrne  v.  State, 
12  Wis.  519. 

8ee  Bribery  ;  Gajiing. 


Id  arrant 


1.  Right  and  duty  of  magistrate  to  is- 
sue. A  magistrate  cannot  lawfully  issue  a 
warrant  of  arrest  on  a  criminal  charge,  on 
information  and  belief,  when  positive  testi- 
mony is  accessible.  Comfort  v.  Fulton,  39 
Barb.  56. 

2.  A  magistrate  may  issue  a  warrant  on 
view,  but  except  in  that  case,  it  is  his  duty 
before  issuing  it  to  require  evidence  on  oath 
amounting  to  a  direct  charge,  or  creating  a 
strong  suspicion  of  guilt.  Welch  v.  Scott, 
5  Ired.  72. 

3.  Mere  hearsay  is  not  a  ground  for  the 
issuing  of  a  warrant,  and  even  if  it  be 
alleged  that  the  prisoner  will  escape  before 
the  necessary  affidavit  showing  his  guilt 
can  be  obtained,  this  will  not  be  sufficient. 
Connor  v.  Com.  3  Binn.  38. 

4.  The  verification  of  a  positive  charge 
by  an  oath  will  justify  a  magistrate  in  issu- 
ing his  warrant  of  arrest.  State  v.  Hobbs, 
39  Me.  212.  Where  the  affidavit  for  a  war- 
rant stated  in  substance  that  the  defendant 
did  designedly  and  l)y  false  pretenses  obtain 
from  the  complainant  a  sulky  of  the  value 
of  $30  by  falsely  stating  and  representing  to 
him  that  his  sulky  was  hard  to  ride  in,  and 


646 


WAKEANT. 


Statement  of  Time  of  Issuing. 


How  to  be  Directed. 


that  he  wished  the  complainant's  sulky  to 
ride  to  Albany,  and  would  return  it  the  next 
week,  but  that  he  shipped  it  from  Albany 
to  Fort  Plain  with  intent  to  cheat  and  de- 
fraud the  complainant — Held  that  the  evi- 
dence upon  which  the  warrant  was  issued 
was  colorable,  and  sufficient  to  call  upon 
the  magistrate  to  exercise  his  judgment  in 
determining  the  propriety  of  issuing  it. 
Pratt  V.  Bogardus,  49  Barb.  89. 

5.  Statement  of  time  of  issuing.  AVhere 
a  warrant  bore  date  April  2d,  and  the  certi- 
ficate of  the  oath  was  dated  May  2d,  and 
both  were  on  the  same  piece  of  paper,  and 
the  complaint  alleged  that  the  offense  was 
committed  on  the  30th  of  April,  and  the 
warrant  referred  to  the  complaint,  it  was 
held  to  be  sufficient  to  show  that  the  com- 
plaint preceded  the  warrant.  Donahoe  v. 
Shed,  8  Mete.  326. 

6.  Need  not  contain  facts  stated  to 
magistrate.  The  complaint  or  warrant 
need  not  set  forth  the  facts  disclosed  to  the 
magistrate  on  oath,  unless  the  case  be  one 
in  which  it  is  required  by  statute.  State  v. 
Hobbs,  39  Maine,  212. 

7.  Necessary  averments.  A  warrant  of 
arrest  must  specify  the  offense,  the  authority 
under  which  it  is  issued,  the  person  who  is 
to  execute  it,  and  the  jjerson  to  be  arrested. 
Brady  v.  Davis,  9  Ga.  73. 

8.  Need  not  state  the  proof.  A  crimi- 
nal warrant  need  not  set  out  the  evidence 
by  which  the  charge  is  to  be  supported,  but 
only  "  recite  the  accusation  "  in  language 
which  indicates  with  reasonable  certainty 
the  crime  sought  to  be  charged.  Pratt  v. 
Bogardus,  49  Barb.  89;  State  v.  Everett, 
Dudley,  S.  C.  295. 

9.  Name  of  defendant.  A  warrant  must 
state  the  name  of  the  party  to  be  arrested  if 
known.  If  the  name  be  unknown,  the  war- 
rant must  indicate  clearly  on  whom  it  is  to 
be  served,  by  stating  his  occupation,  personal 
appearance  and  peculiarities,  the  place  of 
his  residence,  and  other  circumstances  by 
which  he  can  be  identified.  Com.  v.  Crotty, 
10  Allen,  403. 

10.  Where  a  warrant  described  the  person 
to  be  arrested  as  "  A.  and  his  associates,"  it 


was  held  void  as  to  the  latter.     Wells  v. 
Jackson,  3  Munf.  458. 

11.  How  to  be  directed.  The  warrant 
must  be  directed  to  the  sheriff  or  the  con- 
stables of  the  county  or  town,  or  some  indi- 
vidual officer,  or  to  some  other  person  by 
name.     Abbott  v.  Booth,  51  Barb.  546. 

12.  Directing  to  person  not  an  officer. 
At  common  law  a  warrant  may  be  directed 
to  some  iudifiierent  person  who  is  not  an 
officer,  but  a  magistrate  should  not  do  this 
when  an  officer  can  be  conveniently  found. 
Ibid. 

13.  Substitution  of  person  not  an  officer. 
Where  a  warrant  in  the  body  of  it  was 
directed  to  the  sheriff  or  any  constable  of 
the  county,  and  the  magistrate  undertook 
to  confer  an  authority  on  a  person  who  was 
not  an  officer  by  an  indorsement  in  the 
nature  of  a  permission  t®  make  the  arrest,  it 
was  held  not  to  be  a  valid  warrant.     Ibid. 

14.  Where  a  warrant  was  issued  to  bring 
a  person  before  the  court  to  give  sureties  of 
the  peace,  and  the  magistrate  had  desig- 
nated an  officer  to  execute  it,  it  was  held 
that  if  such  officer's  name  was  erased  and 
some  other  person's  name  who .  was  not  a 
swoni  officer  inserted  by  the  prosecutor,  an 
arrest  made  by  such  jjerson  was  void.  Wells 
V.  Jackson,  3  Munf.  458. 

15.  Command.  A  warrant  shouldcontaiu 
a  command  or  a  requirement  in  the  nature 
thereof  to  the  person  to  whom  the  warrant 
is  directed  to  make  the  arrest.  A  mere 
authority  in  the  nature  of  a  license,  or  per- 
mission to  make  the  arrest  is  not  sufficient. 
Abott  V.  Booth,  supra. 

16.  The  mandatory  part  of  the  warrant  is 
that  which  gives  it  efficacy  as  process,  and 
under  that  the  officer  must  justify.  There- 
fore a  warrant  which  recites  a  complaint 
against  John  R.  Miller,  and  commands  the 
officer  to  arrest  the  said  William  Miller,  will 
be  no  protection  to  the  officer  in  arresting 
John  R.,  although  he  was  the  person  in- 
tended.    Miller  v.  Foley,  28  Barb.  630. 

17.  Must  be  under  seal.  As  the  common 
law  required  a  warrant  to  be  under  seal,  the 
same  is  essential  in  all  cases  in  which  war- 
rants are  not  expressly  authorized  to  be  is- 


WAERANT.— WEIGHTS   AND   MEASURES.— WITNESS.    647 


Must  be  under  Seal.     Fraud  in  the  Use  of.     Persons  who  are  Competent  to  Testify. 


sued  without  seal.     Peoj^le  v.  Holcomb,  3 
Parker,  656. 

18.  Tn  Maine,  warrants  issued  for  the  ar- 
rest or  imprisonment  of  persons  must  be  un- 
der seal.  State  v.  Drake,  36  Maine,  366.  In 
North  Carolina,  there  must  be  a  seal  to  every 
warrant  issued  by  a  magistrate  to  arrest  any 
person  upon  a  criminal  charge,  and  if  there 
be  no  seal,  the  precept  will  afford  no  protec- 
tion to  the  officer  attempting  to  execute  it. 
State  V.  Worley,  11  Ired.  243;  Welch  v. 
State,  lb.  72. 

19.  To  be  shown  and  explained  to  party 
arrested.  Where  au  arrest  is  made  by 
virtue  of  a  warrant,  the  warrant  being  de- 
manded, should  be  produced.  But  the  ar- 
rest, the  explanation,  and  the  reading  of  the 
warrant  when  demanded,  are  obviously  suc- 
cessive steps.  In  the  case  of  a  known  offi- 
cer, the  explanation  must  follow  the  airest ; 
and  the  explanation  and  perusal  of  the  war- 
rant must  come  after  the  authority  of  the 
officer  has  been  acknowledged.  If  the  offi- 
cer is  not  known  as  such,  he  should  show 
his  warrant  before  making  the  arrest.  U. 
S.  V.  Jailer  of  Fayette  County,  2  Abb.  265. 

See  Arrest  ;  Officer  ;  Search  warrant. 


Id 


cajjons. 


See  Concealed  weapons. 


iDcigljts  aui  ittcasurcs. 

Fraud  in  the  use  of.  It  is  indictable  at 
common  law  to  deprive  another  of  his  prop- 
erty by  using  false  w^eights  or  measures; 
but  not  to  get  possession  of  another's  goods 
merely  by  falsehood  without  any  other 
fraudulent  act.  Com.  v.  Warren,  6  Mass. 
72. 


Il3ituc00, 


1.  Persons   who  are   competent   or  in- 

COMPEtENT    to   TESTIFY. 

2.  Procuring  attendance. 

3.  Introducing. 


y 


4.  Examination. 

{a)  In  general. 

(b)  Attaching  credibility  of  witness. 

{c)  Sustaining  credibility  of  icitness. 

1.  Persons  who    are   competent   or   in- 
competent TO  testify. 

1.  In  general.  All  persons  who  are  dis- 
interested and  not  infamous,  are  competent 
witnesses,  and  are  presumed  to  be  so  until 
the  contrary  is  shown.  Cornelius  v.  State, 
7  Eng.  782. 

2.  On  the  trial  of  an  indictment  for  per- 
jury, a  person  who  heard  all  but  a  small 
portion  of  the  alleged  false  testimony  was 
held  to  be  a  competent  witness.  Com.  v. 
Farley,  Thach.  Crim.  Cas.  654. 

3.  A  person  who  is  acquainted  with  the 
dividing  line  between  two  towns,  has  lived 
near  it,  and  run  it  when  measuring  his  own 
land,  is  competent  to  prove  on  which  side 
of  the  line  a  tenement  is  situated.  Com.  v. 
Heffron,  102  Mass.  148. 

4.  Young  child.  A  child  under  the  age 
of  seven  years,  if  it  has  sufficient  knowledge 
of  the  nature  and  circumstances  of  an  oath, 
may  be  a  witness.  This  is  to  be  determined 
by  the  court.  State  v.  Morea,  2  Ala.  275  ; 
and  it  is  not  in  general  the  subject  of  excep- 
tion. Com.  V.  MuUins,  2  Allen,  295.  On  a 
trial  for  murder,  a  girl  seven  or  eight  years 
of  age  being  offered  as  a  witness  and  inter- 
rogated to  test  her  capacity,  stated  that 
"  if  she  told  a  story  she  would  be  put  in  jail 
as  a  punishment."  Held  not  error  to  permit 
her  to  testify.  Peterson  v.  State,  47  Ga.  524 ; 
s.  c.  1  Green's  Crim.  Reps.  576. 

5.  A  child  of  any  age  that  is  capable  of 
distinguishing  between  right  and  wrong, 
may  be  examined  as  a  witness;  and  the 
credit  due  to  the  testimony  is  to  be  left  to 
jury.     State  v.  Whittier,  2  Mo.  341. 

6.  In  South  Carolina,  the  evidence  of  a 
child  of  seven  years  which  was  corroborated 
by  circumstances,  w'as  held  sufficient  to  sus- 
tain a  conviction.  State  v.  Le  Blanc,  3  Brev. 
339.      • 

7.  On  the  trial  of  an  indictment  for  rape, 
the  prosecuting  witness  was  a  child  six  years 
of  age,  and  the  offense  was  committed  six- 
teen months  previous.     The  court  examined 


C48 


WITNESS. 


Persons  who  are  Competent  or  Incompetent  to  Testify. 


the  Avitness  as  to  her  competency,  and 
not  being  satisfied,  appointed  two  persons 
who  retired  with  the  child  to  a  private  room, 
and  after  some  time  returned  and  reported 
to  the  court  that,  "  in  their  opinion,  her  tes- 
timony ought  to  be  heard,  but  received  with 
great  allowance."  Whereupon  she  was  al- 
lowed to  testify  against  the  defendant's  ob- 
jection. Held  that  the  court  should  have 
acted  on  its  own  judgment,  and  that  the  de- 
fendant was  entitled  to  a  new  trial.  Simp- 
son v.  State,  31  Ind.  90. 

8.  A  boy  nine  years  old  was  called  to 
testify,  who  stated  that  he  did  not  know 
the  nature  of  an  oath  or  the  obligations  of 
a  witness,  and  had  never  been  sworn.  The 
court  ruled  that  he  was  not  competent  as  a 
witness,  and  declined  to  instruct  him  as  to 
the  nature  and  obligations  of  an  oath.  Held 
correct.     Jones  v.  People,  6  Parker,  126. 

9.  Lunatic.  The  fact  that  a  witness  is  a 
lunatic  is  not  enough  jser  se  to  exclude  him. 
If  he  has  such  a  share  of  understanding  as 
enables  him  to  remember  the  events  of  which- 
he  testifies,  and  gives  him  a  knowledge  of 
right  and  wrong,  he  is  competent.  Coleman 
V.  Com.  25  Gratt.  865. 

10.  Persons  disregarding  order  of  court 
excluding  them  from  the  court  room. 
Where  the  witnesses  are  sent  out  by  order 
of  the  court,  and  one  of  them,  by  accident 
or  design,  gets  back  into  the  court  room, 
he  is  not  for  that  reason  to  be  prevented 
from  testifying;  but  it  is  a  matter  going  to 
his  credit.  Gregg  v.  State,  3  West  Va.  705 ; 
People  V.  Boscovitch,  20  Cal.  436. 

11.  Competency  not  aflfected  by  re- 
ligious belief.  A  person  who  disbelieves  ; 
in  a  future  state  of  rewards  and  punish- 
ments, but  that  they  are  dispensed  in  this 
life,  is  a  competent  witness.  U.  S.  v.  Ken- 
nedy, 3  McLean,  175;  Bennett  v.  State,  1 
Swan,  411;  Noble  v.  People,  Breese,  29. 
In  California,  the  constitutional  provision 
(Const,  art.  1,  §  4),  permitting  a  witness  to 
testify  irrespective  of  his  opinion  on  matters 
of  religious  belief,  is  applicable  to  a  person 
who  makes  a  dying  declaration.  People  v. 
Sanford,  43  Cal.  29,  Crockett,  J.,  dissenting; 
s.  c.  1  Green's  Crim.  Reps.  682. 

12.  In  Virginia,  a  person  is  not  disqualified 


from  testifying  as  a  witness  on  account  of 
religious  unbelief.  Perry's  Case,  3  Gratt. 
632. 

13.  Persons  interested.  The  officer  who 
arrested  the  prisoner  is  a  competent  wit- 
ness, although  liable  as  a  trespasser,  if  the 
arrest  should  prove  to  have  been  wrongful. 
Com.  V.  Meriill,  Thach.  Crim.  Cas.  1. 

14.  On  a  trial  for  murder,  a  person  who 
aided  in  arresting  the  prisoner,  and  received 
a  reward  therefor,  is  a  competent  witness 
for  the  prosecution.  Baxter  v.  People,  3 
Gilman,  368. 

15.  On  a  trial  for  forgery,  the  person 
whose  name  was  forged  may  testify  to  the 
forgery,  although  actions  are  pending 
against  him,  to  which  his  only  defense  is 
the  forgery.  Com.  v.  Peck,  1  Mete.  428. 
And  the  person  to  whom  the  forged  instru- 
ment was  passed  is  a  competent  witness, 
State  V.  Nettleton,  1  Root,  308.  But  the 
forged  instrument  should  be  produced. 
Com.  V.  Hutchinson,  1  Mass.  7. 

16.  A  person  from  whom  goods  have  been 
stolen  may  be  a  witness  as  to  any  facts  with- 
in his  knowledge.  Com.  v.  Moulton,  9 
Mass.  30;  State  v.  Cassados,  1  Nott  & 
McCord,  91.  But  not  when  he  is  entitled 
to  treble  the  value  of  the  property  stolen, 
upon  the  conviction  of  the  prisoner.  State 
V.  Prey,  14  New  Hamp.  464. 

17.  Prisoner's  counsel.  The  attorney  who 
acted  for  the  defendant  on  the  preliminary 
examination  before  the  magistrate,  but  who 
is  not  retained  at  the  trial,  may  be  sworn  to 
prove  what  a  witness  at  such  examination 
testified,  although  he  is  obliged  to  refresh 
his  recollection  from  his  minutes,  and  can- 
not give  the  testimony  verbatim.  Com.  v. 
Goddard,  14  Gray,  402;  s.  c.  2  Allen,  148; 
4  lb.  312. 

18.  Prosecutor.  A  prosecutor  has  been 
held  a  competent  witness  for  the  State,  not- 
withstanding his  liability  for  costs,  in  case 
the  prosecution  fail.  State  v.  Blannerhas- 
sett.  Walker,  7.  But  in  Kentucky,  it  was 
held  otherwise  as  to  one  who  had  under- 
taken to  indemnify  the  prosecutor  in  case 
he  had  the  costs  to  pay.  Com.  v.  Gore,  3 
Dana,  475 

19.  Informer.     An  informer  is  a  compe- 


WITNESS. 


649 


Persons  who  are  Competent  or  Incompetent  to  Testify. 


tent  witness,  although  he  is  to  receive  part 
of  the  j)enalty.  U.  S.  v.  Patterson,  3  Mc- 
Lean, 53,   299. 

20.  Accomplice.  An  accomplice  should 
not  be  made  a  witness  without  an  order 
from  the  court ;  and  the  application  ought 
to  show  that  there  is  no  other  witness  by 
whom  the  oflFense  can  be  proved ;  that  the 
accomplice  is  not  more  guilty  than  the  per- 
son on  trial,  and  that  the  testimony  can  be 
corroborated.  Ray  v.  State,  1  Greene,  Iowa, 
316;  People  v.  Whipple,  9  Cow.  707;  Byrd 
V.  Com.  2  Va.  Cas.  493;  U.  S.  v.  Henry,  4 
Wash.  C.  C.  428. 

21.  An  accomplice,  after  conviction,  and 
before  judgment,  or  after  plea  of  guilty, may 
be  a  witness  for  his  codefeudant  when  they 
are  tried  separately.  Garrett  v.  State,  6 
Mo.  1.  The  principal  may  be  a  witness 
against  the  accessory.  People  v.  Lohmau,  2 
Barb.  216  ;  1  N.  Y.  379. 

22.  An  accomplice  testifying  as  a  witness 
is  not  to  be  discredited  from  the  mere  fact 
of  his  being  such  accomplice.  U.  S.  v.  Kep- 
ler, 1  Baldw.  22.  The  prisoner  may  be  con- 
victed upon  the  uncorroborated  testimony 
of  an  accomplice.  People  v.  Costello,  1 
Denio,  86.  But  such  testimony  ought,  in 
general,  to  be  corroborated.  U.  S.  v.  Troax, 
3  McLean,  431.     See  ante,  Evidence,  tit.  13. 

23.  In  Alabama,  a  partner  of  one  of  the 
players  in  his  winnings  or  losses  in  the 
game  in  which  the  defendant  played  and 
advanced  money  to  the  defendant,  which 
was  used  by  him  in  betting  on  the  game,  is 
an  accomplice  within  the  statute  (Code, 
§  3600),  which  forbids  a  conviction  on  the 
uncorroborated  testimony  of  an  accomplice. 
English  v.  State,  35  Ala.  428. 

24.  The  testimony  of  one  accomplice  can- 
not be  corroborated  by  that  of  another  ac- 
complice.    Johnson  v.  State,  4  Greene,  65. 

25.  It  is  for  the  jury  to  determine  whether 
or  not  a  witness  jointly  indicted  with  the 
defendant  is  an  accomplice.  State  v.  Schla- 
gel,  19  Iowa,  169. 

26.  A  detective  is  not  an  accomplice;  and 
the  question  whether  a  person  acted  in  that 
capacity  is  to  be  determined  by  the  jury. 
State  V.  McKean,  36  Iowa,  343. 

27.  Accomplice  not  privileged  from  tes- 


tifying. When  an  accomplice  testifies  in 
behalf  of  the  prosecution,  he  cannot  sliield 
himself,  on  cross-examination,  from  making 
a  full  disclosure  of  his  connection  with  the 
offense  which  is  being  tried.  Foster  v. 
People,  18  Mich.  266.  But  he  is  not  obliged 
to  disclose  his  criminality  in  other  trans- 
actions.    Pitcher  v.  People,  16  lb.  142. 

28.  WhcTi  a  codefendant  turns  State's  evi- 
dence he  has  no  right  to  claim  any  privilege 
concerning  any  of  the  facts  bearing  upon  the 
issue ;  and  his  waiver  of  privilege  includes 
confidential  communications  to  counsel. 
Hamilton  v.  People,  29  Mich.  173,  referring 
to  Alderman  v.  People,  4  lb.  414,  and  Fos- 
ter V.  People,  18  lb.  266. 

29.  Accomplice  not  entitled  to  favor. 
An  accomplice  who  voluntarily  gives  his 
evidence,  is  not  thereby  discharged  from 
punishment,  nor  is  he  entitled  to  a  pardon. 
His  competency  as  a  witness  depends  on  the 
ancient  principles  of  the  common  law. 
Sumpter  v.  State,  11  Fla.  247. 

30.  An  accomplice,  after  testifying,  may 
be  tried  for  another  crime ;  and  the  fact  that 
he  is  charged  with  a  distinct  felony  is  good 
cause  to  reject  him  as  a  witness.  People  v. 
Whipple,  9  Cow.  707. 

31.  Codefendant.  In  general,  a  defend- 
ant cannot  be  a  witness  for  his  codefendant 
until  he  has  ceased  to  be  a  party  to  the  pro- 
ceeding, either  by  a  verdict  of  acquittal,  an 
entry  of  a  nolle  jyrosequi  as  to  him,  or  a 
judgment  against  him  upon  his  confession 
or  otherwise.  State  v.  Young,  39  New 
Hamp.  283;  People  v.  Bill,  10  Johns.  95; 
State  V,  Roberts,  15  Mo.  28;  People  v. 
Williams,  19  Wend.  377;  State  v.  Champ,  16 
Mo.  385. 

32.  Where  one  of  several  jointly  indicted 
is  found  guilty,  he  may  be  a  witness  for  the 
others  before  sentence,  or  after  sentence,  if 
not  thereby  rendered  infamous.  And  it  is 
the  same  when  he  pleads  guilty.  State  v. 
Jones,  51  Maine,  125. 

33.  A  defendant,  in  an  indictment  for  a 
felony  where  a  separate  trial  is  demanded 
and  allowed,  is  not  entitled  to  have  his  co- 
defendant,  who  is  a  party  to  the  record,  but 
who  is  not  on  trial,  sworn  as  a  witness.  Mc- 
Intyre  agst.  People,  9  N.  Y.  38.     One  jointly 


G50 


WITNESS. 


Persons  who  are  Competent  or  Incompetent  to  Testify. 


indicted  with  another  is  a  competent  witness 
against  his  codefendant.  Mackesey  v.  Peo- 
ple, 6  Parker,  114. 

34.  When  persons  indicted  are  all  jjut  on 
trial  together,  neither  can  be  a  witness  for  or 
against  the  others.  But  when  they  are  tried 
separately,  though  jointly  indicted,  the 
prosecution,  with  the  permission  of  the 
court,  may  call  those  not  on  trial,  though 
not  convicted  or  acquitted,  or  otherwise  dis- 
charged. They  cannot,  howeyer,  be  called 
as  witnesses  for  each  other,  though  separate- 
ly tried,  while  the  indictment  is  pending 
against  tliem.  If  acquitted,  they  may  be  ex- 
amined, and  even  if  convicted,  unless  for  a 
crime  which  disqualifies,  and  then  sentence 
must  have  followed  conviction.  Wixon  v. 
People,  5  Parker,  119,  disapproving  People 
V.  Donnelly,  2  Parker,  182. 

35.  Where  the  prosecution  called  one  of 
several  defendants  as  a  witness,  which  was 
objected  to,  and  the  objection  overruled,  it 
was  held  that  this  was  tantamount  to  a  for- 
mal application  for  leave  to  swear  the  wit- 
ness, and  a  determination  by  the  court  to 
accede  to  the  request.     lb. 

36.  In  Georgia,  where  one  of  several 
jointly  indicted  is  tried  separately,  a  code- 
fendant is  a  competent  witness  in  his  behalf. 
Jones  V.  State,  1  Kelly,  610.  In  Mississippi, 
where,  under  a  joint  indictment  against 
two,  one  of  them  is  found  guilty  of  an  of- 
fense not  infamous,  he  may  be  a  witness  for 
his  codefendant;  and  where  several  are 
charged  with  separate  and  distinct  offenses 
in  the  same  indictment,  they  ai'e  competent 
witnesses  for  each  other  before  conviction  or 
acquittal.  Strawhern  v.  State,  37  Miss. 
422.  When  several  jointly  indicted  for  the 
same  offense  are  tried  separately,  they  are 
competent  witnesses  against  each  other. 
George  v.  State,  39  lb.  570. 

37.  Defendant  testifying  in  his  own  be- 
half. Altliough  the  defendant,  when  he 
offers  himself  as  a  witness  in  his  own  behalf, 
may  be  cross-examined,  yet  the  prosecution 
cannot  make  him  its  own  witness  against 
his  consent.     State  v.  Cohn,  9  Nev.  179. 

38.  The  fact  that  the  defendant  offers  him- 
self as  a  witness  in  his  own  behalf,  does  not 
as  to  him,  change  or  modify  the  rule  as  to 


the  proper  limits  of  cross-examination,  so 
as  to  permit  the  prosecution  to  make  him  a 
witness  against  himself.  People  v.  McGun- 
gill,  41  Cal.  429. 

39.  In  Indiana,  it  has  been  held  that  the 
defendant  in  his  capacity  of  witness  is  en- 
titled to  the  same  rights  and  is  subject  to 
the  same  rules  as  any  other  witness.  Fletcher 
V.  State,  49  Ind.  124.  But  it  has  been  de- 
cided differently  in  New  York.  In  the 
latter  State,  on  a  trial  for  grand  larceny, 
the  prisoner  was  examined  as  a  witness  in 
his  own  behalf  vmder  the  provisions  of  the 
statute  of  May  7th,  1869  (Sess.  Laws  of  1869, 
ch.  678),  which  provides  that  a  party  ac- 
cused of  crime  shall  at  his  own  request,  and 
not  otherwise,  be  deemed  a  competent  wit- 
ness in  his  own  behalf.  On  his  cross-exam- 
ination, he  was  asked  if  he  had  been  in  the 
State  prison.  He  said  he  had,  and  served 
out  his  term.  The  district  attorney  re- 
quested the  court  to  charge  the  jury  to 
disregard  the  defendant's  testimony,  on  the 
ground  that  having  served  as  a  felon  he 
was  not  competent  to  testify  as  a  witness. 
Held  that  such  instruction  was  improper,  the 
law  intending  to  allow  the  prisoner  the 
benefit  of  testifying,  irresiDCctive  of  any 
matter  which  could  disqualify  a  witness 
under  ordinary  circumstances,  and  the  de- 
gree of  credit  to  which  he  was  entitled  being 
for  the  jury  and  not  the  court.  Newman  v. 
People,  63  Barb.  630. 

40.  In  the  United  States  courts  the  pris- 
oner cannot  testify  in  his  own  behalf,  al- 
though by  the  statute  of  the  State  in  which 
the  offense  is  committed  he  may  be  per- 
mitted to  do  so.  U.  S.  V.  Hawthorne,  1 
Dillon  C.  C.  422. 

41.  Husband.  Where  the  wife  is  a  party 
to  the  record,  her  husband  is  not  a  com- 
petent witness  against  her  particeps  cHminis, 
on  his  separate  trial,  although  a  7ioUe  pirese- 
qui  has  been  entered  as  to  the  wife,  but  if 
she  has  been  tried  and  acquitted  it  is  other- 
wise. People  V.  Colbern,  1  Wheeler's  Crim. 
Gas.  479. 

42.  Where  two  are  jointly  indicted,  the 
husband  of  one  is  not  a  competent  witness 
for  the  other  before  con^'iction  or  acquittal. 
Puller  V.  People,  1  Doug.  48;  Shoeffler  v. 


WITNESS. 


C51 


Persons  who  are  Competent  or  Incompetent  to  Testify. 


State,  3  Wis.  823.     But  see  Moffett  v.  State, 
3  Humph.  99. 

43.  In  Maine,  under  the  statute  (Laws  of 
1873,  ch.  137,  §  5)  in  criminal  cases,  a  hus- 
band or  wife  may  be  compelled  to  testify 
either  for  or  against  the  other.  State  v. 
Black,  63  Maine,  210. 

44.  The  rite^j  of  matrimony  had  never 
been  performed  between  an  Indian  man  and 
woman,  but  they  had  cohabited  together  as 
man  and  wife  iu  accordance  with  an  ancient 
custom  of  their  tribe,  according  to  which 
couples  were  recognized  as  husband  and 
wife,  but  could  dissolve  such  relation  at 
pleasure.  Held  not  to  be  marriage,  and 
that  they  could  be  compelled  to  testify 
against  each  other.  State  v.  Ta-cha-na-tah, 
64  N.  C.  614. 

45.  "Wife  testifying  in  behalf  of  hus- 
band. The  act  of  New  York  of  1869  (ch. 
678_),  allowing  persons  charged  with  crime 
to  be  witnesses  in  their  own  behalf,  relates 
only  to  the  accused,  and  does  not  render  his 
wife  competent  to  testify  in  his  behalf. 
People  V.  Reagle,  60  Barb.  527. 

46.  Under  a  statute  permitting  the  wife 
to  testify  for  her  husband,  it  is  error  to 
charge  the  jury  that  "  her  testimony  at  all 
events  should  be  received  with  great  cau- 
tion," she  being  entitled  to  have  her  credi- 
bility tested  by  the  same  rules  that  apply  to 
other  witnesses.  State  v.  Guyer,  6  Iowa, 
263 ;  State  v.  Rankin,  8  lb.  355,  Wright, 
Ch.  J.,  dissoiting.  And  see  State  v.  Nash, 
10  lb.  81. 

47.  A  woman  who  has  cohabited  with  the 
prisoner  as  his  wife,  but  was  never  married 
to  him,  is  a  competent  witness  in  his  behalf. 
State  V.  Johnson,  9  La.  An.  308. 

48.  Wife  testifying  against  husband. 
The  wife  of  the  prisoner  is  not  a  competent 
witness  against  him.  Wilke  v.  People,  53 
N.  Y.  525.  But  where  the  husband  testified 
in  behalf  of  the  prosecution,  it  was  held  that 
his  wife  was  a  competent  witness  for  the  de- 
fense to  show  that -he  was  prejudiced  against 
the  defendant.  Cornelius  v.  State,  7  Eng. 
782. 

49.  In  a  proceeding  by  a  wife  against  her 
husband  for  abandonment  without  provid- 
ing her  with  the  means  of  support,  she  is  a 


competent  witness.     State  v.  Newberry,  43 
Mo.  429. 

50.  In  North  Carolina,  the  wife  cannot  be 
a  witness  against  her  husband  to  prove  a 
battery  on  her  person  by  him,  unless  a  last- 
ing injury  is  inflicted  or  threatened  to  be 
inflicted  upon  her.  State  v.  Hussey,  Busbee, 
123. 

51.  Wife  of  accomplice.  Where  it  is 
proper  to  allow  an  accomplice  to  be  sworn, 
his  wife  is  also  a  competent  witness.  Wix- 
son  V.  People,  5  Parker,  119 ;  State  v.  Moore, 
25  Iowa,  128. 

52.  Although  the  wife  of  an  accomplice 
cannot  corroborate  his  particular  statements, 
yet  she  is  a  competent  witness  to  prove  any 
independent  facts  not  sworn  to  by  her  hus- 
band and  not  fonning  any  part  of  his  acts, 
although  such  facts  fasten  a  guilty  knowl- 
edge on  the  defendant.  U.  S.  v.  Horn,  5 
Blatchf.  102. 

53.  Wife  of  codefendant.  On  the  trial 
of  several  defendants  jointly  indicted,  the 
wife  of  one  of  them  is  not  a  competent  wit- 
ness for  the  others,  and  in  such  case  it  is 
not  material  that  the  defendants  asked  for 
and  were  denied  separate  trials.  Com.  v. 
Robinson,  1  Gray,  555. 

54.  The  fact  that  the  husband  is  a  party 
to  the  record,  does  not  of  itself  exclude  the 
wife  as  a  witness  on  behalf  of  other  parties ; 
but  the  rule  of  exclusion  is  only  to  be  ap- 
plied to  cases  in  which  the  interest  of  the 
husband  is  to  be  affected  by  the  testimony  of 
the  wife.  Thompson  v.  Com.  1  Mete.  Ky.  13. 
The  wife  cannot  testify  if  the  effect  of  her 
testimony  is  to  injure  or  benefit  her  husband ; 
but  it  is  otherwise  when  her  husband  can 
derive  no  benefit,  or  receive  any  detriment 
therefrom.     State  v;  Waterman,  1  Nev.  543. 

55.  On  the  trial  of  an  indictment  for  a 
conspiracy  to  charge  the  wife  of  one  of  the 
defendants  with  adultery,  such  wife  is  not  a 
competent  witness.  State  v.  Burlingham,  15 
Maine,  104. 

56.  When  several  are  jointly  indicted  for 
an  offense  which  may  be  committed  by  one 
or  more,  and  they  are  tried  separately,  the 
wife  of  one  defendant  is  a  competent  witness 
for  the  others;  and  on  separate  trials,  they 
are  entitled  to  the  benefit  of  her  testimony 


652 


WITNESS. 


Persons  who  are  Competent  or  Incompetent  to  Testify. 


in  all  cases  except  in  conspiracy,  or  other 
joint  offenses.  State  v.  Burnside,  37  Mo. 
343;  State  v.  McCarron,  51  lb.  27. 

57.  But  where  under  a  joint  indictment 
against  two,  one  is  tried  separately,  the  wife 
of  the  other  is  not  a  competent  witness  as  to 
matters  tending  to  criminate  her  husband. 
State  V.  Bradley,  9  Rich.  168. 

58.  "Where  on  the  trial  of  a  joint  indict- 
ment against  two  for  an  assault,  a  default  is 
entered  against  one,  on  his  recognizance,  his 
wife  is  a  competent  witness  for  the  others. 
State  V.  Worthing,  31  Maine,  63. 

59.  Convicted  criminal.  A  person  con- 
A'icted  of  an  infamous  crime  is  a  competent 
witness  before  sentence.  U.  S,  v.  Dickinson, 
2  McLean,  325.  To  render  him  incompetent 
there  must  have  been  a  judgment.  State  v. 
Valentine,  7  Ired.  225. 

60.  In  Alabama,  a  person  convicted  of 
libel  in  another  State  is  not  an  incompetent 
witness.     Campbell  v.  State,  23  Ala.  44. 

61.  A  person  convicted  of  forgery  in  an- 
other State  is  not  a  competent  witness  in 
North  Carolina.  State  v.  Candler  3  Hawks, 
393. 

62.  In  New  York,  a  person  convicted  of 
perjury  is  not  competent  to  be  a  witness,  un- 
til the  judgment  is  reversed,  although  par- 
doned. Houghtaling  v.  Kelderhouse,  1  Par- 
ker, 241. 

63.  In  New  York,  under  the  statute  (Laws 
of  1869,  ch.  678),  a  person  convicted  of  a 
felony  who  has  not  been  jjardoned,  is  a  com- 
petent witness  in  his  own  behalf  upon  a  trial 
on'au  indictment  subsequently  found  against 
him  for  a  criminal  offense.  Delamater  v.  Peo- 
ple, 5  Lans.  332 ;  Newman  v.  People,  6  rb.460. 

64.  The  statute  of  New  York  (Laws  of 
1847,  ch.  460),  providing  that  a  convict  shall 
be  a  competent  witness  against  a  fellow 
prisoner  for  any  offense  actually  committed 
whilst  in  prison,  permits  convicts  to  testify 
to  facts  material  to  the  issue  upon  the  trial 
of  any  such  offense,  and  is  not  restricted  to 
the  particular  acts  constituting  the  crime. 
Donohue  v.  People,  56  N.  Y.  208. 

65.  In  New  York,  a  person  convicted  of 
petit  larceny  as  a  first  offense,  is  not  incom- 
petent to  testify.  Shay  v.  People,  22  N.  Y. 
317;  4  Parker,  353. 


66.  In  Virginia,  a  person  may  be  a  witness 
although  he  has  been  convicted  of  petit  lar- 
ceny in  another  State.  TJhlv.  Cora.  6  Graft. 
706.  In  Massachusetts,  the  conviction  of  a 
person  before  a  justice  of  the  peace  of  lar- 
ceny, renders  him  incompetent  to  testify, 
notwithstanding  the  complaint  in  the  pro- 
ceedings before  the  justice  was  defective. 
Com.  V,  Keith,  8  Mete.  531. 

67.  Member  of  court.  A  court  retains  its 
jurisdiction,  notwithstanding  one  of  its 
members  leaves  the  bench  and  is  sworn  and 
testiiies  as  a  witness.  People  v.  Dohring,  59 
N.  Y.  374;  overruling  s.c.  2  N.  Y.  Supm.  N. 
S.  458.  But  his  becoming  a  witness  is 
error  which  if  objected  to,  will  be  ground 
for  I'eversing  the  judgment.     lb, 

68.  Juror.  ^Vheu  facts  are  in  the  iDersonal 
knowledge  of  a  juror,  they  may  be  proved 
by  him.     State  v.  Powell,  2  Halst.  244. 

69.  Grand  jurors.  The  testimony  of  grand 
jurors  is  admissible  to  prove  that  a  witness 
for  the  prosecution  swore  differently  on  his 
examination  before  them.  Com.  v.  Mead,  12 
Gray,  167. 

70.  A  grand  juror  is  competent  to  testify 
on  the  trial  that  a  person  w-as  not  a  witness 
before  the  grand  jury.  Com.  v.  Hill,  11 
Cush.  137,  And  when  necessary  to  promote 
justice,  a  grand  juror  may  be  compelled  to 
testify  what  the  witnesses  before  the  grand 
jury  testiiied.  State  v.  Wood,  53  New 
Hamp.  484. 

71.  Where  a  person  is  charged  with  per- 
jury before  a  grand  jury,  members  of  such 
jury  are  competent  to  testify  as  to  the  facts 
sworn  to  by  the  defendant  before  them. 
Crocker  v.  State,  1  Meigs,  127. 

72.  Persons  incompetent  by  statute. 
The  statute  of  California,  which  provides 
that  "  no  Indian,  or  person  having  one-half 
or  more  Indian  blood,  or  Mongolian,  or 
Chinese,  shall  be  permitted  to  give  evidence 
in  favor  of  or  against  any  white  man,"  is 
not  in  conflict  with  the  14th  Amendment  of 
the  Constitution  of  the  United  States.  Peo- 
ple V.  Brady,  40  Cal.  198. 

73.  Under  a  statute  precluding  negroes 
and  Indians  from  testifying  either  for  or 
against  a  white  person,  the  indicium  of  color 
cannot  be  relied  on  as  an  infallible  test  of 


WITNESS. 


055 


Persons  Competent  to  Testify. 


Procuring  Attendance. 


Introducing. 


competency,  but  only  wben  it  is  so  decided 
as  to  leave  no  doubt  of  the  particular  race  to 
whicli  the  witness  belongs.  People  v.  Elyea, 
14  Cal.  144. 

74.  Expert.  There  is  no  rule  of  law  fixing 
the  precise  amount  of  experience  or  degree 
of  skill  necessary  to  constitute  an  expert. 
The  judge  must  in  the  first  instance  pass 
upon  the  admissibility  of  the  witness;  and 
if  admitted,  the  juiy  determine  the  credit 
to  be  given  to  his  testimony.  Com.  v. 
Williams,  105  Mass.  62. 

75.  Where  a  physician  called  as  a  witness 
on  a  trial  for  murder,  to  which  the  defense 
of  insanity  was  interposed,  testified  that  he 
had  made  the  subject  of  mental  disease  a 
study,  but  not  a  special  study;  that  he  had 
considered  the  matter  only  so  far  in  his 
general  practice  as  to  determine  whether  a 
patient  was  in  such  a  condition  as  to  require 
treatment  for  insanity,  it  was  held  that  he 
was  not  competent  to  testify  as  an  expert 
uj)on  a  hypothetical  case  put  to  him.  Com. 
v.  Rich,  14  Gray,  335. 

76.  There  is  no  precise  standard  fixing  the 
degree  of  knowledge  which  a  person  must 
possess  of  another's  handwriting  in  order  to 
testify  as  to  the  authenticity  of  a  particular 
paper.  The  witness  must  have  seen  the 
party  write  and  acquired  a  knowledge  more 
or  less  perfect  of  the  character  of  the  hand. 
Hartung  v.  People,  4  Parker,  319. 

77.  When  a  witness  examined  as  an  expert 
has  expressed  an  opinion  based  on  facts  as- 
sumed by  the  party  introducing  him  to  have 
been  proved,  or  upon  a  hypothetical  case  put 
by  such  party,  the  other  party  may  cross- 
examine  him  by  taking  his  opinion  based  on 
any  other  set  of  facts  assumed  by  him  to  have 
been  proved,  or  upon  a  hypothetical  case. 
Davis  V.  State,  35  Ind.  496.  For  other  de- 
cisions relating  to  the  testimony  of  experts, 
see  ante,  Evidence,  tit.  14. 

78-  Interpreter.  Where  a  witness  in  con- 
sequence of  debility  is  not  able  to  speak 
loud  enough  to  be  heard  by  tlie  court  and 
jury,  the  court  may  appoint  a  person  to  in- 
terpret what  tlie  witness  communicates  to 
him  in  wdiispers.  Conner  v.  State,  25  Ga. 
515. 


2.    PROCrRING    ATTENDANCE. 

79.  Defendant's  witnesses  when  to  be 
procured  by  prosecution.  It  is  the  duty  of 
the  United  States  court,  on  the  application 
of  the  prisoner,  to  send  for  witnesses  within 
the  jurisdiction  of  the  court,  at  the  expense 
of  the  government,  upon  his  showing  that 
he  is  poor,  and  unable  to  defray  the  expense. 
U.  S.  V.  Kenneally,  5  Bis.  122. 

80.  In  Maine,  the  prosecution  is  not  re- 
quired to  pay  the  expenses  incurred  by  per- 
sons accused  of  crime  in  procuring  the 
attendance  of  witnesses,  but  only  to  furnish 
the  process  for  summoning  the  witnesses. 
State  V.  Waters,  39  Maine,  54. 

81.  Attachment.  The  issuing  of  an  at- 
tachment against  a  witness  in  behalf  of  the 
prisoner,  after  his  counsel  has  announced 
that  they  have  no  other  witnesses,  and  after 
arrangements  have  been  made  for  sum- 
ming up  the  cause  on  both  sides,  is  in  the  dis- 
cretion of  the  court.  Stephens  v.  People, 
4  Parker,  396:   afti'd  19  N.  Y.  549. 

82.  Keeping  witness  away.  It  is  a  crime 
at  common  law  to  induce  a  witness  to  absent 
himself  from  a  court  where  he  is  legally 
bound  to  appear  to  give  testimony  upon  a 
criminal  process  there  pending,  and  an  at- 
tempt to  do  so,  though  not  accomplished, 
will  subject  the  offender  to  an  indictment. 
State  V.  Ames,  64  Maine,  386. 

83.  On  the  trial  of  an  indictment  for  get- 
ting a  witness  out  of  the  way,  it  need  not 
be  proved  that  the  testimony  of  the  witness 
was  material.  State  v.  Early,  3  Harring.562, 

3.  Introducing. 

84.  Calling  witness  in  discretion  of 
court.  Where  a  witness  disobeys  the  order 
of  the  court  to  withdraw,  and  remains  and 
hears  the  testimony  of  the  other  witnesses, 
it  is  in  the  discretion  of  the  court  whether 
he  shall  afterward  be  permitted  to  testify  in 
the  case.  Laughlin  v.  State,  18  Ohio,  99 ; 
Sartorius  v.  State,  24  Miss.  602. 

85.  The  court  has  discretion  to  allow 
witnesses  to  be  examined  at  any  time  before 
the  verdict,  notwithstanding  they  were  re- 
moved before  their  first  examination,  and 
have  since  been  together.  State  v.  Silver,  3 
Dev.  332. 


654 


WITNESS. 


Introducing 


Examination. 


In  General. 


86.  When,  on  the  trial  of  several  jointly 
indicted,  there  is  evidence  against  one,  the 
court  may  deny  the  motion  of  his  codefend- 
ants  to  introduce  liim  as  a  witness,  on  the 
ground  that  there  was  no  evidence  against 
him  to  authorize  him  to  be  put  on  his  de- 
fense, and  "to  direct  and  allow  the  jury 
to  return  a  verdict  of  acquittal  as  to  him,  on 
the  ground  that  there  was  not  suflacient  evi- 
dence of  his  guilt  to  require  him  further  to 
defend."     Brister  v.  State,  26  Ala.  107. 

87.  The  calling  of  a  witness  by  the  pros- 
ecution, in  corroboration  of  previous  testi- 
mony, is  in  the  discretion  of  the  court. 
Stephens  V.  People,  4  Parker,  396;  19  N.  Y. 
549. 

88.  The  prosecution,  after  resting,  cannot 
be  compelled  to  call  and  examine  other  wit- 
nesses. Peoi^le  V.  Cunningham,  6  Parker, 
398. 

89.  Administering  oath.  In  Illinois,  an 
oath  administered  with  the  uplifted  hand, 
no  objection  being  made,  was  held  valid, 
although  the  witness  did  not  state  that  he 
had  conscientious  scruples  against  being 
sworn  on  the  Gospels.  McKinney  v.  People, 
3  Oilman,  540. 

90.  The  provision  of  the  statute  of  Mas- 
sachusetts as  to  the  form  of  administering 
an  oath  is  directory  only,  and,  therefore, 
when  a  commission  issued  in  another  State 
to  take  a  deposition  in  Massachusetts  directs 
the  oath  to  be  administered  in  a  different 
form,  such  oath  will  be  valid.  Com.  v. 
Smith,  11  Allen,  3i3  (Genl.  Stats,  ch.  131, 
§8). 

4.   Examination, 

(a)  In  general. 

91.  Right  of  court  to  control  examina- 
tion of  witness.  On  the  trial  of  an  indict- 
ment for  assault  with  intent  to  murder,  dur- 
ing the  cross-examination  of  one  of  the 
State's  witnesses,  H.,  one  of  the  defendant's 
attorneys,  asked  the  witness  a  question 
which  the  court  deemed  improper,  and  so 
told  the  attorney,  to  which  he  replied: 
"This  is  a  cross-examination,  and  if  we 
cannot  examine  our  witness,  he  can  stand 
aside."  The  court  directed  D.,  another  of 
the  defendant's  attorneys,  to  cross-examine 
the  next  witness,  which  he  declined  to  do, 


and  it  was  thereupon  demanded  that  H.  be 
permitted  to  cross-examine  the  witness,  but 
the  court  would  not  allow  it.  The  judge 
then  proposed  to  ask  the  witness  the  proper 
questions,  to  which  the  defendant  objected, 
and  refused  to  have  the  witness  cross-ex- 
amined unless  it  was  done  by  H.,  which  the 
judge  would  not  permit.  Held  that  the  action 
of  the  court  was  proper.  Redman  v.  State, 
38  Ind.  305. 

92.  The  extent  of  the  cross-examination 
of  a  witness  upon  matters  immaterial  to  the 
issue,  is  in  the  discretion  of  the  judge 
before  whom  the  trial  is  conducted.  La 
Beau  V.  People,  34  N.  Y.  333. 

93.  The  court  may,  in  its  discretion,  per- 
mit the  re-examination  of  the  witnesses  as  to 
facts  not  in  reply  or  rebuttal,  Sartorius  v. 
State,  34  Miss.  603. 

94.  The  court  has  the  discretionary  power, 
on  the  application  of  either  party,  to  require 
the  witnesses  to  be  examined  out  of  the 
hearing  of  each  other,  McLean  v.  State,  16 
Ala,  673;  West  v.  State,  3  Zabr,  313. 

95.  Objecting  to  witness.  A  party  who 
objects  to  the  competency  of  a  witness  may 
examine  him  on  his  voir  dire^  or  prove  the 
alleged  incompetency  by  evidence  aliunde. 
If  he  adopts  the  former  mode,  he  makes  the 
witness  his,  so  far  as  the  question  of  com- 
petency is  concerned,  and  is  concluded  by 
his  testimony,  unless  it  leaves  the  question 
in  doubt,  in  which  case  he  may  resort  to 
other  evidence.  If  he  adopt  the  latter  mode, 
and  fails  because  his  evidence  is  rejected  as 
inadmissible,  he  may  still  resort  to  the 
former  mode,  and  if  he  has  two  distinct 
grounds  of  objection,  he  may  adopt  one 
mode  of  proof  as  to  one  ground,  and  the 
other  mode  as  to  the  other  ground.  People 
V.  Anderson,  36  Cal.  139. 

96.  Leading  questions.  When  a  witness 
appears  adverse  in  interest  to  the  party  call- 
ing him,  the  court  usually  permits  such 
l^arty  to  put  to  him  leading  questions,  their 
admission  being  in  the  discretion  of  the 
court.  State  v.  Lull,  37  Maine,  346 ;  State 
V.  Benner,  64  lb,  367.  An  interrogatory 
put  to  a  witness  by  the  judge  cannot  be 
objected  to  as  leading.  Com.  v.  Galavan,  9 
Allen,  371. 


WITNESS. 


655 


Examination. 


In  General. 


S7.  On  a  trial  for  murder,  S.,  the  mother 
of  the  prisoner,  upon  her  cross-examination 
by  the  prosecution,  was  asked  whether  she 
knew  M.,  and  whether  she  did  not  meet  her 
the  next  morning  after  the  homicide  and 
make  certain  statements  to  her,  to  which  S. 
replied  that  she  did  not.  M.  was  afterward 
called  to  contradict  her,  and  she  was  asked 
whether  she  saw  S.  on  the  morning  in  ques- 
tion. Held  that  the  question  was  proper, 
and  not  objectionable  on  the  ground  that  it 
was  leading.  Shufflin  v.  People,  6  N.  Y. 
Supm.  N.  S.  215. 

98.  The  following  questions  were  held 
leading  and  improper  :  "  State  whether  or 
not  you  examined  the  horse  tracks  toward 
Crogin's ;"  and  "  State  whether  or  not  you 
had  any  difficulty  in  following  the  tracks." 
Hojiper  V.  Com.  6  Gratt.  684. 

99.  On  the  trial  of  an  indictment  for 
rape,  the  following  questions  were  held  lead- 
ing and  improper:  "  Did  the  prisoner  then, 
or  at  any  subsequent  time,  say  anything  to 
you  in  relation  to  this  matter  to  dissuade 
you  from  disclosing  it  ?  State  when,  where 
and  what  he  said.  Did  the  prisoner,  at 
any  time  subsequent  to  the  transaction,  say 
anything  to  you  about  what  judgment  the 
law  would  inflict  on  you,  or  him,  or  both  ? 
If  the  prisoner  in  any  of  his  antecedent 
conversations  oflFered  property,  or  any  other 
advancement  to  you,  in  order  to  attach  you 
to  him,  say  so."  Turney  v.  State,  8  Smed.  & 
Marsh.  104,  Clayton,  J.,  disse7iting. 

100.  Witness  refreshing  his  memory. 
A  witness  may  refre&h  his  recollection  from 
a  memorandum  made  by  another  person, 
but  which  the  witness  dictated.  Hill  v. 
State,  17  Wis.  675. 

101.  Where  a  witness  refreshes  his  memory 
from  a  memorandum,  the  opposite  party  has 
a  right  to  inspect  the  memorandum,  unless 
it  appears  to  the  court  that  the  party  fur- 
nishing the  memorandum  has  a  reasonable 
ground  of  belief  that  he  will  suV)ject  him- 
self to  personal  injury  by  allowing  it  to  be 
examined.     State  v.  Bacon,  41  Vt.  536. 

102.  A  written  memorandum  signed  with 
the  mark  of  a  witness  who  can  neither  read 
or  write,  which  is  used  to  refresh  his  rec- 
ollection, sliould  not  be  read   in  court,  but 


the  witness  should  retire  with  one  of  the 
counsel  on  each  side,  and  the  paper  be  read 
to  him  without  comment.  Com.  v.  Fox,  7 
Gray,  585. 

103.  Where  the  written  deposition  of  a 
witness  had  been  previously  taken,  and  she 
was  asked  on  cross-examination,  whether 
she  at  that  time  mentioned  the  name  of  one 
M. — Held  proper  for  the  court  to  direct  that 
the  witness  be  allowed  to  examine  the  de- 
position before  answering,  although  it  ap- 
peared that  the  name  of  M.  was  not  in  it. 
State  V.  Taylor,  3  Oregon,  10. 

104.  Where  a  witness  after  examining  a 
memorandum  made  by  him,  as  to  a  material 
fact,  stated  that  his  memory  was  not  so  re- 
freshed that  he  could  then  swear,  from  rec- 
ollection, but  that  when  the  memorandum 
was  made,  it  was  true,  it  was  held  that  his 
testimony  was  admissible.  State  v.  Colwell, 
3  R.  I.  133. 

105.  Privileged  communications.  On  a 
trial  for  larceny,  a  witness  from  whom  the 
property  is  alleged  to  have  been  stolen  need 
not  disclose  the  names  of  persons  in  his 
employment  who  gave  the  information 
which  led  him  to  take  measures  for  the 
detection  of  the  thief.  State  v.  Soper,  16 
Maine,  293. 

106.  Where  a  witness  privileged  to  answer, 
testifies  to  part  of  a  transaction,  he  is  obliged 
to  testify  as  to  the  whole.  State  v.  Foster, 
3  Fost.  348;  People  v.  Lohman,  3  Barb.  216. 

107.  Answer  tending  to  criminate. 
Where  the  answer  to  a  question  may  furnish 
evidence  to  convict  the  witness  of  a  crime, 
he  is  not  bound  to  answer,  unless  exempt 
from  liability  by  statute.  Floyd  v.  State,  7 
Texas,  315  ;  Wood  v.  State,  3  Mo.  98 ; 
Murphy  v.  Com.  23  Gratt.  960;  s.  c.  3 
Green's  Crim.  Reps.  662. 

108.  If  a  witness  object  to  a  question  on 
the  ground  that  an  answer  would  criminate 
him,  he  must  allege  in  substance,  that  his 
answer  would  tend  to  prove  him  guilty  of  a 
criminal  offense.  If  it  could  not  be  used 
against  him,  because  forbidden  by  statute, 
the  witness  is  not  privileged.  People  v. 
Hackley,  24  N.  Y.  74. 

109.  On  a  trial  for  seduction,  the  defendant 
put  a  witness  upon  the  stand  and  asked  him 


65G 


WITNESS. 


Examination. 


In  General. 


if  he  had  ever  had  sexual  intercourse  with 
the  prosecutrix.  The  witness  declined  to 
answer  for  the  reason  that  it  might  tend  to 
criminate  him.  Held  that  the  court  did  not 
err  in  refusing  to  compel  him  to  testify,  al- 
though a  prosecution  for  seduction  was 
baiTed  bj'  the  statute  of  limitations;  it  not 
appearing  that  he  had  not  already  been 
complained  of,  and  a  prosecution  for  rape 
being  not  yet  barred.  People  v.  Brewer,  27 
Mich.  134;  s.  c.  2  Green's  Crim.  Reps.  562. 

110.  A  party  cannot  object  that  an  answer 
to  the  question  asked  may  involve  the 
witness  in  a  criminal  prosecution.  The 
objection  must  come  from  the  witness.  It  is 
not  the  duty  of  the  court,  independently  of 
any  objection  on  the  part  of  the  witness  to 
inform  him  that  he  is  not  obliged  to  crimi- 
nate himself.  Com.  v.  Shaw,  4  Cush.  594. 
And  the  witness  cannot  claim  such  privilege, 
when  the  question  is  necessary  to  understand 
the  facts  already  voluntarily  stated.  People 
V.  Carroll,  3  Parker,  73. 

111.  If  a  witness  has  stated  part  of  a 
transaction,  or  of  a  series  of  transactions, 
which  implicate  the  defendant,  the  latter 
may  show  by  a  cross-examination  of  the 
same  witness,  that  the  fault,  and  even  the 
criminality,  were  on  the  part  of  the  witness, 
and  not  of  the  accused.     lb. 

112.  If  a  witness  consents  to  testify  so  as 
to  criminate  himself  as  well  as  the  defendant, 

'  he  must  answer  all  questions  legally  put  to 
him  concerning  that  matter.  Com.  v.  Price, 
10  Gray,  472.  And  where  the  defendant 
offers  himself  as  a  witness,  he  cannot  object 
to  any  question  pertinent  to  the  issue  on  the 
ground  that  the  answer  may  tend  to  crimi- 
nate him.  Com.  v.  Lannan,  13  Allen,  563; 
Com.  V.  Mullen,  97  Mass.  545 ;  Com.  v.  Bon- 
ner, lb.  587. 

113.  The  testimony  of  a  husband  wliicli 
may  tend  to  criminate  his  wife,  or  the  testi- 
mony of  a  wife  which  may  tend  to  criminate 
her  husband,  is  admissible  in  a  collateral 
proceeding  when  it  cannot  afterward  be 
used  against  either.  State  v,  Briggs,  9  R.  I. 
361. 

114.  Whether  the  answer  may  tend  to 
criminate  the  witness,  is  a  point  which  the 
court  will  determine  under  all  the  circum- 


stances of  the  case,  and  without  requiring 
the  witness  to  explain  how  he  may  be  crimi- 
nated by  the  answer.  State  v.  Staples,  47 
New  Hamp.  113;  Com.  v.  Brainard,  Thach. 
Crim.  Case,  146;  Ward  v.  State,  2  Mo.  98; 
People  V.  Mather,  4  Wend.  231 ;  Richmond 
V.  State,  2  Greene,  532. 

115.  An  accomplice  testifying  in  behalf 
of  the  prosecution,  is  privileged  equally 
with  other  witnesses  from  answering  ques- 
tions tending  to  impute  crime  to  him  or  to 
disgrace  him.  State  v.  Staples,  47  New 
Hamp.  113. 

116.  Although  a  witness  in  the  United 
States  courts  prior  to  the  act  of  Congress  of 
Feb.  25th,  1868,  (15  St.  37),  could  decline 
to  answer  a  question  when  the  answer  would 
tend  to  criminate  him,  yet  now  he  may  be 
compelled  to  answer  when  the  inquiry  is' 
pertinent  to  any  judicial  proceeding;  but  the 
testimony  cannot  be  used  against  the  wit- 
ness.    U.  S.  V.  Brown,  1  Sawyer,  531. 

117.  Where  a  witness  objects  to  testify  on 
the  ground  that  it  will  criminate  him,  but 
is  erroneously  compelled  to  testify,  the  de- 
fendant may  object  that  the  conviction  was 
founded  upon  incompetent  evidence.  Com. 
V.  Kiml)all,  23  Pick.  366. 

118.  Answer  tending  to  disgrace  wit- 
ness. The  court  may  in  its  discretion  allow 
or  disallow  a  question  which  tends  not  to 
criminate  but  only  to  degrade  or  disgrace 
the  witness.     State  v.  Blansky,  3  Minn.  24fi. 

119.  A  witness  is  privileged  to  decline 
to  answer  a  question  which  tends  to  dis- 
grace him  unless  the  answer  would  bear 
directly  upon  the  issue.  Lohman  v.  People, 
1  Comst.  379 ;  Howel  v.  Com.  5  Gratt.  604. 
See  People  V.  Rector,  19  Wend.  569;  Clemen- 
tine V.  State,  14  Mo.  112;  Barnes  v.  State, 
19  Conn.  398. 

120.  To  excuse  the  witness  from  answer- 
ing, it  is  not  sufficient  that  his  answer  will 
have  a  tendency  to  expose  him  to  infamy  or 
disgrace ;  the  question  must  be  such  that 
the  answer  to  it  which  he  may  be  required 
by  the  obligation  of  his  oath  to  give  will 
directly  show  his  infamy.  People  v.  Mather, 
4  Wend.  229. 

121.  A  witness  may  be  asked  upon  cross- 
examination  whether  he  has  been  in  jail  or 


WITNESS. 


657 


Examination. 


In  General. 


Attacking  Credibility  of  Witness. 


State  prison,  or  any  other  place  tbat  would 
tend  to  impair  his  credibility,  and  how 
much  of  his  life  he  has  passed  in  such 
places.     Real  v.  People,  43  N.  Y.  270. 

122.  It  is  competent  to  ask  a  witness  on 
cross-examination,  with  a  view  to  impeach 
his  general  character  and  thereby  aftect  his 
credibility,  whether  he  has  not  been  guilty 
of  adultery,  and  whether  he  has  not  had  the 
venereal  disease  since  his  marriage.  If, 
however,  the  question  calls  for  facts  wholly 
collateral  to  the  issue,  the  witness  may  re- 
fuse to  answer  it,  and  no  inference  unfavor- 
able to  his  character  will  be  drawn  from 
such  refusal.  People  v.  Blakeley,  4  Parker, 
176;  La  Beau  v.  People,  6  lb.  371,  contra. 

(Jb)  Attaching  credilnlity  of  witness.- 

123.  Value  of  affirmative  testimony- 
An  affirmative  witness  of  equal  knowledge 
and  credibility  is  to  be  believed  in  prefer- 
ence to  many  negative  witnesses.  Johnson 
V.  State,  14  Ga.  55. 

124.  Where  witnesses  testified  to  what 
they  saw  on  a  certain  starlight  night,  aided 
by  the  light  from  neighboring  houses,  it 
was  held  not  competent  to  show  by  other 
witnesses  that  on  a  similar  starlight  night 
they  made  experiments  between  the  same 
hours  and  with  the  same  degree  of  light, 
and  were  unable  to  see  objects  distinctly  at 
the  distance  sworn  to  by  the  first  witnesses. 
Sealy  v.  State,  1  Kelly,  213, 

125.  Contradictory  statements  of  wit- 
ness. Wlien  a  witness  upon  being  asked 
whether  he  did  not  make  certain  statements, 
replies  that  he  has  no  recollection  of  having 
made  them,  it  may  be  proved  that  he  did  in 
fact  make  them.  Garret  v.  State,  6  Mo.  1 ; 
Shriedley  v.  State,  23  Ohio,  N.  S.  130 ;  s. 
c.  2  Green's  Crim.  Reps.  530. 

126.  Before  a  witness  can  be  impeached  by 
proof  of  previous  contradictory  statements, 
he  must  first  be  given  an  opportunity  to  ex- 
plain such  statements,  Powell  v.  State,  19 
Ala.  577;  Clementine  v.  State,  14  Mo.  112; 
State  V.  Cazeau,  8  La.  An.  109 ;  People  v.  De- 
vine,  44  Cal.  452  ;  s.  c.  2  Green's  Crim.  Reps. 
405;  Jackson  v.  Com.  23  Gratt.  919;  s.  c.  2 
Green's  Crim.  Reps.  650. 

42 


127.  A  witness  may  be  contradicted  by  a 
person  who  heard  him  testify  on  a  former 
hearing,  whether  such  person  took  minutes 
of  the  testimony  of  the  witness  or  not. 
State  V.  Archer,  54  New  Hamp.  465. 

128.  When  a  witness  for  the  prisoner  testi- 
fies diflFerently  from  what  he  did  before  the 
grand  jury,  a  member  of  the  grand  jury 
may  be  called  to  contradict  him.  State  v. 
Benner,  64  Maine,  267. 

129.  It  is  not  competent  for  the  purpose 
of  impeaching  a  witness  to  ask  him  as  to 
his  testimony  at  a  former  time  if  that  testi- 
mony was  inadmissible.  Mitchum  v.  State, 
11  Ga.  615.  And  a  witness  cannot  be  im- 
peached by  asking  him  questions  irrelevant 
to  the  issue  in  order  to  contradict  his 
answers.  U.  S.  v.  Dickinson,  2  McLean, 
335. 

130.  When  a  witness  after  he  has  testified 
declares  that  what  be  swore  to  was  false, 
such  declaration  may  be  given  in  evidence 
to  impeach  him.  People  v.  Moore,  15  Wend. 
419. 

131.  When  contradictory  statements  of 
witness  cannot  be  shown.  Upon  cross-ex- 
amination, the  prosecution  may,  for  the 
purpose  of  impairing  the  credit  of  a  wit- 
ness, interrogate  him  as  to  collateral  matters, 
but  after  asking  and  obtaining  answers, 
other  witnesses  cannot  be  called  to  prove 
such  answers  false.  Stokes  v.  People,  53 
N.  Y.  164 ;  State  v.  Benner,  64  Maine,  267  ; 
People  V.  Devine,  supra. 

132.  Where  a  witness  for  the  prosecution 
was  asked  whether  the  public  prosecutor 
htd  not  paid  him  for  coming  from  another 
State  to  be  a  witness,  and  answered  that  he 
had  not,  it  was  held  that  the  defense  could 
not  introduce  witnesses  to  prove  that  he 
had  said  that  he  had  been  so  paid.  State 
v.  Patterson,  3  Ired.  346. 

133.  When  contradictory  statements  in 
respect  to  collateral  matters  may  be 
shown.  An  exception  to  the  rule  that  con- 
tradictory statements  of  a  witness  in  respect 
to  collateral  matters  testified  to  by  him  on 
cross-examination  cannoc  be  shown  to  im- 
peach his  credit,  arises  when  the  cross-exam- 
ination is  as  to  mutters  which  altliough 
collateral  tend  to  show  the  temper,  disposi- 


G58 


WITNESS. 


Examination. 


Attacking  Credibility  of  Witness. 


tion  or  conduct  of  the  witness  toward  the 
subject  of  inquiry  or  the  parties.  State  v. 
Patterson,  supra. 

134.  A  party  may  not  contradict  his 
own  witness.  A  party  cannot  discredit  his 
own  witness  by  asking  him  whether  he  had 
not  sworn  differently  on  a  former  occasion. 
People  V.  Safford,  5  Denio,  112;  Sanchez  v. 
People,  4  Parker,  535 ;  22  N.  Y.  147. 

135.  When,  however,  the  witness  is  hos- 
tile to  the  party  calling  him,  it  is  proper  to 
allow  the  direct  examination  to  take  the 
character  of  a  cross-examination.  People  v. 
Mather,  4  "Wend.  231.  Where  a  witness 
testifies  contrary  to  what  the  party  intro- 
ducing him  had  a  right  to  expect,  he  may 
be  cross-examined  by  such  party  as  to  what 
he  had  stated  in  regard  to  the  matter  on  for- 
mer occasions,  and  thus  refresh  the  memory 
of  the  witness  and  give  him  an  opportunity 
to  set  the  party  introducing  him  right  before 
tbe  jury,  but  not  for  the  purpose  of  dis- 
crediting the  witness.  And  the  party  is  not 
allowed  to  prove  such  contradictory  state- 
ments if  denied  by  the  witness.  Howard  v. 
State,  32  Ind.  478. 

136.  Where  the  prosecution  has  called  and 
examined  a  witness,  it  cannot,  upon  the 
witness  being  recalled  by  the  defendant, 
seek  to  impeach  him  on  cross-examination. 
Com.  V.  Hudson,  11  Gray,  64. 

137.  Testimony  of  defendant  may  be  im- 
peached. Where  the  prisoner  takes  the 
stand  as  a  witness  in  his  own  behalf,  he  is 
subject  to  the  same  rules  of  examination  as 
any  other  witness,  and  may  be  contradicted. 
It  is  therefore  competent  to  show  that  his 
testimony  as  to  being  unconscious  of  what 
he  did  while  committing  the  crime,  and  for 
some  time  afterward,  was  not  true.  Fralich 
V.  People,  65  Barb.  48. 

138.  Where  the  prisoner  testifies  in  his 
own  behalf,  the  court  may  interrogate  him 
as  fully  as  may  be  needful,  to  test  the  truth 
of  his  direct  testimony.  Gill  v.  People,  5 
X.  Y.  Supm.  N.  S.  308. 

139.  Showing  that  witness  is  interested. 

The  defense  may  ask  a  witness  whether  any 
person,  on  behalf  of  the  prosecution,  has 
made  the  witness  any  offer  of  reward  in  re- 


lation to  the  testimony  which  he  might  give 
in  a  certain  class  of  cases,  including  the  case 
on  trial.     Com.  v.  Sackett,  22  Pick.  394. 

140.  The  fact  that  a  witness  for  the  prose- 
cution has  contributed  funds  to  carry  it  on, 
goes  only  to  his  credibility.  People  v. 
Cunningham,  1  Denio,  524. 

141.  Showing  hostility  of  witness.  A 
witness  may  be  interrogated  as  to  the  state 
of  his  feelings  toward  the  prisoner  in  order 
to  show  bias;  but  he  cannot  be  asked  the 
cause  of  his  hostility.  Bishop  v.  State,  9 
Ga.  121. 

142.  It  is  always  proper  to  show  the  rela- 
tions existing  between  a  witness  and  the 
party  against,  as  well  as  the  person  for 
whom  he  is  called ;  and  the  party  against 
whom  a  witness  is  called  may  show  the  hos- 
tility of  the  witness  by  proving  his  declara- 
tions ;  as  that  the  witness  threatened  to  kill 
the  defendant  before  the  commission  of  the 
alleged  offense,  although  the  witness,  on 
cross-examination,  denied  having  made  such 
threats.     Starks  v.  People,  5  Denio,  106. 

143.  Showing  defect  of  religious  belief. 
The  want  of  religious  belief,  as  affecting  the 
competency  of  a  witness,  must  be  established 
by  other  means  than  an  examination  of  the 
witness  on  the  stand.  Com.  v.  Smith,  2 
Gray,  516;  Com.  v.  Burke,  16  lb.  33.  Dis- 
ability from  such  a  cause  is  not  to  be  pre- 
sumed, but  must  1)0  proved.  The  question 
is  to  be  decided  by  the  court,  and  is  not 
subject  to  exception.  Com.  v.  Hills,  10 
Cush.  530. 

144.  Showing  intoxication  of  witness. 
It  may  be  shown  that  the  witness  was 
drunk  at  the  time  of  the  transaction  relative 
to  which  he  testifies.  Fleming  v.  State,  5 
Humph.  564. 

145.  Attacking  character  of  witness. 
A  witness  may  be  discredited  by  showing 
his  bad  moral  character.  State  v.  Shields, 
13  Mo.  236;  Deer  v.  State,  14  lb.  348. 

146.  When  a  person  on  trial  puts  his  gen- 
eral character  in  issue  by  his  own  act,  he 
takes  the  risk  of  its  being  proved  bad,  and 
of  every  presumption  which  such  proof  le- 
gitimately raises  against  him.  And  so, 
where  a  prisoner  testifies  as  a  witness  in  bis 
own  behalf,  he  puts  his  general  character 


WITNESS. 


050 


Examination. 


Attacking  Credibility  of  Witness.     Sustaining  Credibility. 


and  credibility  in  issue,  and  may  be  im- 
peached the  same  as  any  other  witness. 
Burdick  v.  People,  58  Barb.  51. 

147.  Where  the  prisoner  is  a  witness  in 
his  own  behalf,  a  record  of  his  conviction  of 
petit  larceny  is  admissible  to  impeach  him. 
People  V.  Satterlee,  12  N.  Y.  Supm.  N.  S. 
167. 

148.  A  witness  cannot  be  impeached  by 
proving  that  he  has  been  guilty  of  stealing. 
Free  v.  State,  1  McMuUun,  494 ;  Howel  v. 
Com.  5  Graft.  664 ;  nor  by  proving  that  sev- 
eral indictments  for  libel  are  pending  against 
him.     Campbell  v.  State,  33  Ala.  44. 

149.  Method  of  impeaching  character  of 
witness.  The  party  impeaching  a  witness 
should  ask  the  attacking  witnes^s  whether 
he  has  the  means  of  knowing  the  general 
character  of  the  witness  sought  to  be  im- 
peached.    State  V.  O'Neal,  4  Ired.  88. 

150.  A  witness  examined  as  to  the  general 
character  of  a  person,  in  respect  to  his 
habits,  should  first  state  that  he  is  acquaint- 
ed with  that  person's  general  character  in 
the  particular  to  which  he  deposes ;  but  if 
his  testimony  shows  that  fact,  it  will  be 
sufBcient.     Elam  v.  State,  25  Ala.  53. 

151.  In  order  to  impeach  a  witness,  it  is 
not  competent  to  prove  his  general  bad 
character  disconnected  from  veracity.  The 
proper  inquiry  is  what  is  his  general  charac- 
ter for  truth  in  the  place  where  he  resides, 
and  whether,  from  the  witness'  knowledge  of 
his  general  character,  he  would  believe  him 
imder  oath.  U.  S.  v.  Vansickle,  2  McLean, 
219  ;  State  v.  Bruce,  30  Maine,  71  ;  Bucklin 
V.  State,  20  Ohio,  18;  Uhl  v.  Com.  6  Graft. 
706. 

152.  The  proper  question  to  be  put  to  a 
w'itness  called  to  impeach  another,  is  whether 
he  would  believe  him  on  oath;  and  the  op- 
posite party  may  then  cross-examine  as  to 
the  grounds  of  the  unfavorable  opinion. 
People  V.  Mather,  4  Wend.  231 ;  Hamilton 
v.  People,  29  Mich.  173;  Keator  v.  People, 
32  lb  484.  In  New  Hampshire  the  inquiry 
is,  what  is  the  general  reputation  of  the 
witness  as  to  truth,  and  whether,  from  such 
general  reputation,  the  person  would  believe 
sucli  witness  un:ler  oath,  as  soon  as  men  in 


general.     State  v.  Howard,  9  New  Hamp. 
485. 

153.  In  Ohio,  in  impeaching  the  credit  of 
a  witness,  the  inquiry  into  the  general  repu- 
tation, or  character  of  the  witness,  is  re- 
stricted to  his  reputation  for  truth  and 
veracity,  and  does  not  extend  to  his  entire 
moral  character.  Craig  v.  State,  5  Ohio, 
N.  S.  605.  In  Tennessee,  in  impeaching  a 
witness,  the  inquiry  is  not  restricted  to  gen- 
eral reputation  for  veracity,  but  involves 
the  whole  moral  character  of  the  witness. 
Gilliam  v.  State,  1  Head,  38. 

154.  Where  a  person  testifies  that  public 
rumor  gave  a  witness  sought  to  be  im- 
peached, a  bad  moral  character  as  to  drink- 
ing, fighting,  murder,  shooting  at  men,  and 
as  to  certain  publications  reputed  false  in 
his  newspaper,  he  cannot  be  asked,  on  re- 
examination, "  What  other  moral  delin- 
quencies public  rumor  attributed  to  him ; 
nor  what  rumor  said  in  regard  to  those  pub- 
lications ;  nor  whether  he  did  not  know,  of 
his  own  knowledge,  that  they  were  false." 
Campbell  v.  State,  23  Ala.  44. 

155.  An  unmarried  woman  may  be  asked„ 
on  cross-examination,  subject  to  her  privi- 
lege to  refuse  to  answer,  whether  she  has  any 
children.     Ibid. 

156.  For  the  purpose  of  impeaching  the 
credibility  of  the  prosecuting  witness,  he 
may  be  asked  whether  he  did  not  ofler  to 
compound  the  felony.  Pleasant  v.  State,  8 
Eng.  360. 

157.  The  prisoner  is  entitled  to  the  same 
right  of  cross-examination  as  if  no  ruling 
had  been  made  in  regard  to  the  number  of 
witnesses  on  the  subject  of  impeachment; 
otherwise  the  limit  would  be  itself  imisroptsr. 
People  V.  Haynes,  55  Barb.  450. 

(c)   Sustaining  credibility  of  witness. 

158.  Character  of  witness  must  have 
been  first  assailed.  A  party  cannot  prove 
the  general  good  character  of  his  own  wit- 
ness, until  the  character  of  the  witness  has 
been  attacked  by  the  other  side.  Starks  v. 
People,  5  Denio,  106. 

159.  But  where  a  witness  is  impeached, 


ceo 


WITNESS. 


Examination. 


Sustaining  Credibility  of  Witness. 


either  by  witnesses  called  for  that  purpose 
or  CD  his  own  cross-examination,  the  part}' 
calling  him  may  introduce  testimony  in  sup- 
port of  his  character  for  truth  aud  veracity. 
People  v.  Rector,  19  Wend.  569. 

160.  After  a  witness  has  been  impeached 
by  proof  of  statements  made  by  him  contra- 
dictory to  what  he  swore  to,  evidence  is  ad- 
missible of  his  general  good  character.  Clem 
v.  State,  33  lud.  418. 

161.  Who  competent  to  testify  as  to 
character  of  witness.  When  a  witness  has 
been  impeached,  a  person  who  is  well  ac- 
quainted with  him,  and  has  never  heard  his 
-character  for  truth  and  veracity  called  in 
question,  or  spoken  of,  is  competent  to  sus- 
tain him.  Lemons  v.  State,  4  West  Va. 
755. 

1S2.  Negativing  imputed  hostility  of 
witness.  When  a  witness  has  been  ex- 
amined as  to  the  part  he  has  taken  in  the 
prosecution,  he  may  be  asked,  on  re-exami- 
nation, whether  he  feels  so  unfnendly  to- 
wards the  prisoner  as  to  wish  to  see  an 
innocent  man  convicted.  Campbell  v.  State, 
23  Ala.  44. 

163.  Where  it  is  sought  to  be  shown  on 
the  cross-examination  of  the  principal  wit- 
ness that  the  prosecution  was  the  result  of  a 
conspiracy,  in  which  the  witness  was  con- 
cerned, it  is  competent  to  sustain  the  wit- 
ness by  proving  that  another  person  wrote 
to  the  public  authorities,  and  was  the  cause 
of  the  prosecution  being  instituted.  Loh- 
man  v.  People,  1  Comst.  379. 

164.  Corroborating  testimony  of  wit- 
ness. Wliere  a  witness  is  impeached  by 
proof  of  previous  statements  contradicting 
his  evidence,  he  may  be  supported  by  show- 
ing other  statements  corresponding  with  it. 
Beauchamp  v.  State,  6  Blackf.  299. 

165.  Where  a  witness  is  asked  on  cross- 
examination  when  he  was  first  questioned 
concerning  what  he  has  sworn  to  on  his 
direct  examination,  he  may  be  asked  on  re- 
examination if  he  did  not  previously  relate 
the  same  thing  to  others.  Com.  v.  Wilson, 
1  Gray,  337. 


166.  When  the  testimony  of  a  witness  is 
impeached,  his  confession  taken  by  the 
magistrate  on  a  complaint  against  another 
person  is  admissible  in  evidence  to  sustain 
his  testimony  and  to  impair  the  testimony 
of  the  magistrate  in  the  account  given  by 
him  of  the  facts  testified  to  by  the  witness 
on  such  complamt.  People  v.  Moore,  15 
Wend.  419. 

167.  Where  an  accomplice,  on  his  cross- 
examination,  testified  that  the  examining 
magistrate  told  him  that  he  should  not  be 
prosecuted  if  he  would  disclose  all  he  knew 
of  the  transaction,  it  was  held  that  the 
testimony  of  the  magistrate  corroborating 
this  statement  was  admissible  in  evidence  to 
support  the  general  credit  of  the  accomplice. 
Com.  V.  Bosworth,  22  Pick.  397. 

168.  Where  it  is  proved  that  a  witness 
has  made  statements  in  conflict  with  his 
testimony,  he  may,  upon  re- examination, 
explain  the  circumstances  under  which  such 
statements  were  made.  State  v.  Reed,  63 
Maine,  129;  s.  c.  2  Green's  Crim.  Reps. 
468. 

169.  When  a  witness  has  been  cross- 
examined  as  to  his  former  statements,  in 
order  to  impeach  him,  he  may  be  asked, 
on  re-examination  in  chief,  his  motive  in 
making  those  statements.  Campbell  v.  State, 
23  Ala.  44. 

170.  Credibility  of  witness  to  be  de- 
termined by  jury.  It  is  erroneous  to  in- 
struct the  jury  that  although  a  witness  is 
impeached,  yet  if  his  testimony  is  corrob- 
orated by  the  testimony  of  witnesses  unim- 
peached,  they  are  bound  to  believe  his 
testimony,  the  credibility  of  witnesses  being 
wholly  a  matter  for  the  jury.  People  v. 
Eckert,  16  Cal.  110. 

171.  In  im'pe:iching  the  general  character 
of  an  accomplice,  the  jury  are  to  determine 
his  credibility  at  the  time  he  testifies,  and 
not  whether  he  was  truthful  at  the  time  of 
the  commission  of  the  ofl'ense.  People  v. 
Haynes,  55  Barb.  450. 

See  Evidence;  Trial. 


WEIT   OF  ERROK. 


OGl 


When  it  will  Lie. 


llUit  of  ^iTor. 

1.  When  it  will  lie. 

2.  When  it  will  not  lie. 

3.  Proceedings  in  obtaining. 

4.  What  to  contain. 

5.  Return. 

6.  Hearing. 

1.  When  it  will  lie. 

1.  Must  be  judgment.  A  writ  of  error 
can  only  be  brought  by  a  defendant  to  re- 
yiew  a  final  judgment  rendered  upon  the 
whole  indictment.  People  agst.  Merrill,  14 
N.  Y.  74. 

2.  The  prisoner  cannot  review  the  pro- 
ceedings upon  his  trial  by  a  writ  of  error 
until  a  record  of  judgment  has  been  made 
up  and  filed,  unless  the  giving  of  judgment 
has  been  stayed.  Hill  agst.  People,  10  N.  Y. 
463.  In  New  York,  where  there  was  nothing 
brought  before  the  Supreme  Court  but  the 
rough  minutes  of  the  arraignment  and  trial 
of  the  plaintifl"  in  error  in  the  Court  of 
Sessions,  together  with  a  copy  of  a  memo- 
randum, which  was  not  a  part  of  the 
minutes,  and  a  certificate  that  the  indictment 
could  not  be  found,  and  the  return  did  not 
disclose  the  fact  of  any  judgment  or  sen- 
tence, the  writ  of  error  was  quashed.  Daw- 
son V.  People,  5  Parker,  118. 

3.  Where,  after  conviction  for  grand  lar- 
ceny in  the  New  York  General  Sessions, 
judgment  was  stayed,  and  the  Supreme 
Court  ordered  a  new  trial,  but  no  judgment 
on  the  indictment  w^as  given  for  the  defend- 
ant in  either  court,  it  was  held  that  the 
prosecution  was  not  entitled  to  a  writ  of 
error  to  review  the  order  of  the  Supreme 
Court  granting  a  new  trial.  It  is  only  judg- 
ments for  the  defendant  upon  an  indictment 
to  which  the  terms  of  the  statute  (N.  Y. 
Laws  of  1852,  ch.  82)  extend.  People  v. 
Nestle,  19  N.  Y.  583. 

4.  What  deemed  a  judgment.  The  re- 
versal by  the  Supreme  Court  of  a  conviction 
in  the  Oyer  and  Terminer,  and  granting  a 
new  trial,  is  a  judgment  within  the  meaning 
of  the  statute  of  New  York  (Laws  of  1852, 
p.  7G;,  and  a  writ  of  error  lies  to  review  it. 
People  V.  Bennett,  49  N.  Y.  137. 


5.  To  constitute  a  judgment  record,  it 
must  be  signed  by  a  judge  of  the  court.  The 
statute  of  New  York  which  authorizes  a  de- 
fendant, who  shall  have  been  convicted  or 
acquitted,  to  require  the  district  attorney  to 
make  up  a  record  of  judgment,  and  provides 
that  on  his  neglect  to  do  so,  it  may  be  done 
by  the  defendant,  does  not  dispense  with 
such  necessity.  Weed  v.  People,  31  N.  Y. 
465. 

6.  In  case  of  decision  on  demurrer. 
Exceptions  cannot  be  taken  to  the  judgment 
or  order  of  the  court  upon  a  demurrer,  the 
remedy  for  erroneous  decisions  upon  demur- 
■rer  in  criminal  cases  being  by  a  writ  of 
error.  People  v.  Reagle,  60  Barb.  537.  But 
see  Paige  v.  People,  6  Parker,  683. 

7.  Must  have  been  exception.  It  is  only 
in  a  capital  case,  and  where  the  minimum 
punishment  is  imprisonment  in  the  State 
prison  for  life,  that  the  accused  is  relieved 
under  the  statute  of  New  York  (Laws  of 
1855,  ch.  339,  §  3),  from  the  necessity  of 
taking  an  exception  in  the  court  in  which 
he  is  tried,  in  order  that  he  may  have  the 
right  of  review  in  an  appellate  court. 
Wilke  V.  People,  53  N.  Y.  525. 

8.  Objection  once  raised  need  not  be 
renewed.  If  a  court,  before  the  impanel- 
ing of  the  juryj  entertains  and  decides 
material  legal  questions  which  belong  to, 
and  are  properly  a  part  of  the  trial,  and  the 
parties  act  upon  them,  such  decisions  are 
to  be  deemed  incoqjorated  into  the  proceed- 
ings on  the  trial,  and  it  is  unnecessary  to 
renew  the  objection  afterward.  Starin  v. 
People,  45  N.  Y.  333. 

9.  Not  taken  away  by  appeal.  The 
remedy  by  appeal  does  not  take  away  the 
remedy  by  writ  of  error.  Barnett  v.  State, 
36  Maine,  198. 

10.  In  behalf  of  prosecution.  In  In- 
diana, wdiere  the  defendant  pleaded  guilty 
to  the  first  count  of  the  indictment,  and  the 
second  count  was  quashed,  it  was  held, after 
judgment  for  the  defendant,  that  a  writ  of 
error  in  behalf  of  the  prosecution  might  be 
brought  on  the  judgment  quashing  the 
second  count.  State  v.  Dark,  8  Blackf. 
526. 


GC2 


WKIT   OF   ERROR. 


When  it  will  not  Lie. 


Proceedings  in  Obtaining. 


2.  When  it  will  not  lie. 

11.  In  case  of  acquittal.  A  writ  of  error 
cannot  be  maintained  by  the  prosecution 
after  judgment  for  the  pri-soner.  People  v. 
Corning,  3  Comst.  1 ;  Com.  v.  Cummings, 
3  Cush.  212;  Com.  v.  Harrison,  2  Va.  Cas. 
202;  State  v.  Royal,  1  Scam.  557;  State  v. 
Dill,  lb.  257;  contra,  State  v.  Graham,  1 
Ark.  428. 

12.  Where  decision  is  on  question  of 
practice.  In  Wisconsin,  a  writ  of  error  will 
not  lie  in  behalf  of  the  prosecution  to  re- 
verse a  judgment  in  favor  of  the  defendant 
upon  a  question  of  practice.  State  v.  Kemp, 
17  Wis.  669. 

13.  In  case  of  objection  to  evidence. 
Where  an  objection  to  evidence  is  sustained, 
error  will  not  lie  if  the  objection  is  good 
on  any  ground.  And  if  the  objection  is  one 
that  might  have  been  removed  if  pointed 
out,  which  is  not  done,  but  purposely 
avoided,  and  other  groundless  objections 
are  raised,  the  farmer  will  be  deemed  to 
have  been  waived,  and  cannot  be  insisted  on 
to  sustain  the  ruling  upon  appeal.  Haight 
v.  People,  50  N.  Y.  391.  A  writ  of  error 
will  not  lie  for  the  improper  admission  of 
evidence  unless  the  evidence  be  objected  to 
©n  the  trial.     Clark  v.  State,  12  Ohio,  488. 

14.  Decision  in  relation  to  certiorari, 
contempt,  or  continuance.  A  writ  of  error 
cannot  be  obtained  for  the  refusal  of  an  in- 
ferior court  to  grant  a  certiorari.  State  v. 
Wood, 3  Zabr.560.  Nor  to  an  order  punishing 
for  contempt.  Johnston  v.  Com. 4  Bibb,  598. 
Nor  for  the  refusal  of  the  court  to  grant  a  con- 
tinuance.   Holmes  v.  People,  5  Gilman,  478. 

15.  In  New  York,  when  an  indictment  is 
brought  into  the  Supreme  Court  by  certiorari, 
to  take  the  advice  of  the  court,  and  the  pro- 
ceedings are  sent  back  to  the  court  below, 
with  directions  to  proceed  to  judgment,  a 
writ  of  error  will  not  lie  to  the  Supreme 
Court.     People  v.  Stearns,  23  Wend.  634. 

16.  Misconduct  of  jury.  Irregiilarities  of 
the  jury  in  relation  to  their  verdict  cannot  be 
examined  by  writ  of  error.  U.  S.  v.  Gillies, 
3  Wheeler's  Crim.  Cas.  308. 

17.  In  case  of  discharge  of  jury.  In  New 
York,  it  has  been  held  that  the  discharge  of 


the  jury  upon  their  failure  to  agree,  is  not 
subject  to  review  upon  writ  of  error.  Peo- 
ple V.  Green,  13  Wend.  55. 

3.  Proceedings  in  obtaining. 

18.  In    case    of    several    defendants. 

Prisoners  jointly  indicted,  may  uuite  in  a 
writ  of  error.     Sumner  v.  Com.  3  Cush.  521. 

19.  How  objections  which  are  the  sub- 
jects of,  may  be  presented.  The  New  York 
Revised  Statutes  have  in  effect  abolished 
all  assignments  of  error  and  allegations  of 
diminution  on  writs  of  error  and  certiorari  in 
criminal  cases.  When  objections  relate  to 
matters  extrinsic  of  the  judgment  record, 
tlie  remedy  is  by  motion.  In  most  cases  be- 
fore con\dction,  they  can  be  presented  either 
by  plea  in  abatement  or  bill  of  exceptions, 
either  of  which  would  introduce  them  upon 
the  record  and  thus  subject  them  to  review 
upon  writ  of  error  after  judgment.  Hayen 
V.  People,  3  Parker,  175 ;  People  v.  McCann, 
lb.  272. 

20.  By  whom  allowed.  In  New  York, 
by  the  Revised  Statutes,  a  writ  of  error  in  a 
capital  case  is  allowed  by  a  judge  of  the  Su- 
preme or  Circuit  Court,  upon  notice  to  the 
prosecuting  attornej\  But  it  is  the  duty 
of  the  judge  to  disallow  the  writ  when  he 
has  no  reason  to  doubt  the  legality  of  the 
conviction.  Colt  v.  People,  1  Parker,  617; 
Carnal  v.  People,  lb.  262.  Under  the  judi- 
ciary act  of  1847,  the  power  to  allow  the 
writ  and  direct  a  stay  of  proceedings  is  ex- 
tended to  a  judge  of  the  Court  of  Appeais 
and  to  a  county  judge.  Where  it  is  prob- 
able that  an  error  has  been  committed,  or  a 
doubt  is  entertained  as  to  the  correctness  of 
the  decision  which  is  sought  to  be  reviewed, 
the  writ  is  to  be  allowed  and  the  order 
granted ;  but  in  no  other  case.  Stout  v. 
People,  4  Parker,  132. 

21.  Stay  of  proceedings.  A  stay  of  pro- 
ceedings after  conviction,  until  a  decision  on 
writ  of  error,  is  in  the  discretion  of  the 
court.     People  v.  Holmes,  3  Parker,  567. 

22.  In  New  York,  a  writ  of  error  when 
allowed,  does  not  stay  or  delay  the  execu- 
tion of  the  judgment  or  of  the  sentence 
thereon,  unless  it  is  expressly  directed  in  the 


WRIT  OF   ERROR. 


663 


What  to  Contain. 


Return. 


Hearing. 


allowance  that  the  writ  shall  operate  as  a 
stay  of  proceedings.  Stout  v.  People,  4 
Parker,  133. 

23.  Considerations  for  the  allowance  of  a 
writ  of  error  and  stay  of  jDroceedings  in  a 
<^apital  case.  Sullivan  v.  People,  1  Parker, 
347 ;  People  v.  Hendrickson,  lb.  396. 

4.  What  to  contain. 

24.  Command.  It  is  suiBcient  if  a  writ  of 
error  to  remove  a  case  from  the  New  York 
Court  of  Sessions  to  the  Supreme  Court 
commands  that  the  record  and  proceedings 
{which  include  the  judgment,  if  any  be 
given),  be  certified  to  the  Supreme  Court. 
Phillips  V.  People,  57  Barb.  353 ;  43  N.  Y. 
200. 

25.  The  objections  to  a  writ  of  error  that 
it  does  not  require  the  return  of  the  judg- 
ment below,  or  a  return  of  the  proceedings 
on  the  indictment  ''if  judgment  be  there- 
upon given,"  and  that  there  is  no  return  of 
any  record  or  judgment  in  the  case,  are 
technical  and  without  force.     Ibid. 

5.  Return. 

26.  What  brought  up  by.  The  return  to 
a  writ  of  error  brings  up  the  indictment,  the 
pleas  interposed  by  the  defendant,  and  the 
trial  and  judgment  upon  those  pleas, 
together  with  the  bill  of  exceptions.  Grant 
V.  People,  4  Parker,  537 ;  Phillips  v.  People, 
supra  ;  Gaflfney  v.  People,  50  N.  Y.  416. 

27.  In  New  York,  where  the  Court  of 
Oyer  and  Terminer,  by  its  return  to  a  writ  of 
certiorari,  abided  by  the  return  made  to  a 
writ  of  error  as  containing  the  only  authentic 
record  of  its  judgment  in  the  premises,  and 
declined  in  any  way  to  alter  and  amend  its 
minutes,  without  the  direction,  order  or  per- 
mission of  the  Supreme  Court,  because  the 
record  of  judgment  was  before  the  latter 
court  by  the  return  to  the  writ  of  error,  it 
was  held  that  the  court  of  Oyer  and  Termi- 
ner had  mistaken  the  law  and  practice,  the 
record  not  being  sent  up  on  a  writ  of  error, 
but  only  a  transcript,  and  for  the  purposes 
of  amendment,  the  record  remaining  in  the 
court  below.  Graham  v.  People,  03  Barb. 
468. 


28.  Presumption  from,  that  prisoner 
was  present  during  trial.  Where  the  re- 
turn to  a  writ  of  error  ater  conviction  for 
grand  larceny,  stated  that  the  prisoner  ap- 
peared in  his  own  proper  person,  and  was,  in 
due  form  of  law  tried  and  convicted,  it  was 
held  that  it  would  be  presumed  that  he  was 
present  during  the  whole  of  the  trial.  Hil- 
debrand  v.  People,  3  N.  Y.  Supm.  N.  S.  83 ; 
8  lb.  19. 

29.  Must  state  that  the  prisoner  was 
asked  why  judgment  should  not  be  pro- 
nounced against  him.  Upon  a  writ  of 
error  to  the  Court  of  Oyer  and  Terminer  aft- 
er conviction  for  murder,  it  must  be  dis- 
tinctly stated  in  the  record  sent  up  as  a  part 
of  the  return,  that  the  accused  was  interro- 
gated after  he  was  found  guilty  why  judg- 
ment should  not  be  pronounced  against  him. 
Graham  v.  People,  63  Barb.  468. 

30.  Where  the  return  made  to  WTitsof  error 
and  certiorari  differed  in  regard  to  the  essen- 
tial matter  whether  the  prisoner  was  asked  if 
he  had  anything  to  say  why  sentence  should 
not  be  pronounced,  it  was  held  that  as  the 
return  to  the  writ  of  error  was  signed  by  the 
judge  of  the  Oyer  and  Terminer  and  the 
district  attorney,  and  showed  that  it  had 
been  inspected  by  the  court,  while  this  was 
not  the  case  with  respect  to  the  return  to  the 
certiorari,  the  return  to  the  writ  of  error  was 
to  be  deemed  to  contain  the  authentic  judg- 
ment of  the  court  below.     lb. 

31.  Expunging  interpolated  matter. 
Where  the  return  of  the  court  below  shows 
that  a  part  of  it  is  not  the  record,  but  is  in 
legal  effect  a  forgery,  the  court  of  review 
will  regard  the  interpolated  matter  as  having 
been  expunged.     Graham  v.  People,  supra. 

32.  A  motion  to  amend  the  record  of  a 
Court  of  Oyer  and  Terminer  after  a  return 
to  a  writ  of  error  should  not  be  made  in  the 
Supreme  Court.  It  is  the  duty  of  the  former 
court  to  expunge  from  its  minutes  matter 
which  has  been  interpolated  without  its  au- 
thority, and  thus  prevent  the  return  of  the 
interpolated  matter   as   part   of  its  record. 

lb. 

0.  Hearing. 

33.  Accused  need  not  be  present.  Upon 
a  writ  of  error  sued  out  by  a  person  con- 


CG4 


WRIT   OF   EREOR. 


Hearing. 


victed  of  a  felony,  his  personal  presence  in 
the  appellate  court  is  not  necessary  to  give 
jurisdiction.     Donnelly  v.  State,  2  Dutch. 601. 

34.  Not  to  be  had  on  reporter's  minutes. 
Where  there  is  no  bill  of  exceptions,  the 
Supreme  Court  upon  the  return  of  a  writ  of 
error,  cannot  lawfully  order  the  cause  to  be 
heard  on  the  reporter's  minutes  taken  on  the 
trial,  the  prisoner  objecting  thereto.  Messner 
V.  People,  45  N.Y.  1,  Peck  ham,  J.,  dissenting. 

35.  Confined  to  questions  of  law.  In 
New  York,  a  review  upon  writ  of  error  (1 
R.  S.  p.  736,  §  23),  is  confined  to  questions 
of  law  arising  upon  exceptions  taken  upon 
the  trial,  and  errors  that  appear  in  the  rec- 
ord. The  testimony  constitutes  no  part  of 
the  record,  and  must  be  disregarded  by  the 
court,  except  for  the  purpose  of  determining 
the  materiality  of  exceptions.  People  v. 
Thompson,  41  N.  Y.  1 ;  Donohue  v.  People, 
56  lb.  208 ;  Eggler  v.  People,  3  N.  Y.  Supm. 
N.  S.  796. 

36.  Confined  to  causes  of  error  assigned. 
Where  there  is  a  general  assignment  of  error, 
and  also  an  assignment  of  special  causes  of 
error,  the  defendant  cannot  insist  upon 
other  special  causes  under  the  general  as- 
signment. Crandall  v.  State,  10  Conn. 
339. 

37.  Burden  of  proof.  The  burden  of 
showing  error  lies  upon  the  plaintiff  in  error ; 
and  when  the  bill  of  exceptions  does  not 
purport  to  contain  all  the  evidence,  it  will 
ordinarily  be  presumed,  that  if  set  forth  it 
would  sustain  the  ruling  and  charge  of  the 
court.     Dillion  v.  People,  8  Mich.  357. 

38.  Proceedings  in  court  below  pre- 
sumed regular.  Where  upon  the  return  to 
a  writ  of  error,  there  was  nothing  before  the 
court  excepting  the  indictment  and  the 
clerk's  minutes  of  the  trial,  which  showed 
the  impaneling  of  the  jury,  the  verdict 
and  sentence,  it  was  held  that  the  court 
would  not  entertain  the  question  of  reversal 
on  the  ground  that  it  did  not  appear  that 
the  defendant  was  present  at  the  trial,  or 
when  sentence  was  pronounced,  or  was  asked 
what  he  had  to  say  why  sentence  should 
not  be  pronounced  against  him.  Thompson 
V.  People,  3  Parker,  208. 

39.  A  return  to  a  writ  of  error  after  con- 


viction of  burglary,  contained  the  indict- 
ment, the  testimony,  the  charge  of  the  court, 
the  verdict,  and  the  sentence;  but  no  record 
was  made  up.  It  was  urged  that  the  judg- 
ment should  be  reversed  because  it  did  not 
appear  that  the  prisoner  was  present  on  the 
trial  or  that  before  sentence  he  was  asked 
what  he  had  to  say  why  judgment  should 
not  be  pronounced  against  him.  Held  that 
as  the  case  did  not  present  the  necessary 
facts  on  which  the  prisoner's  objections  were 
based,  he  could  not  avail  himself  of  them. 
Dent  V.  People,  1  N.  Y.  Supm.  N.  S.  655. 

40.  Where  no  record  of  the  proceedings 
was  contained  in  the  case,  showing  what 
transpired  between  the  conviction  and  sen- 
tence, it  was  held  that  the  objection,  that 
the  prisoner  was  not  asked  if  he  had  any- 
thing to  say  why  sentence  should  not  be 
pronounced  against  him,  could  not  be  enter- 
tained. Hildebrand  v.  People,  3  N.  Y. 
Supm.  N.  S.  82;  8  lb.  19. 

41.  Where  no  objection  was  raised  at  the 
trial  in  the  New  York  Court  of  Sessions, 
that  the  trial  was  had  after  the  close  of  the 
third  week  of  the  term,  and  it  was  raised 
in  the  Supreme  Court  on  writ  of  error,  solely 
on  the  ground  that  no  order  for  the  con- 
tinuance of  the  term  appeared  on  the  record 
of  judgment,  it  was  held  that  as  every 
intendment  was  in  favor  of  the  regularity  of 
the  proceedings  and  the  omission  to  in- 
corporate the  order  in  the  proceedings  did 
not  show  that  it  was  not  duly  entered  on  the 
minutes  of  the  court,  there  was  nothing  to  call 
for  a  new  trial.  Ferris  v.  People,  48  Barb. 
17. 

42.  Evidence  in  court  below  presumed 
sufficient.  In  the  absence  of  all  the  evidence 
given  upon  the  trial,  the  appellate  court 
will  assume  that  the  evidence  not  returned 
justified  the  verdict.  Where  therefore  a 
witness  on  the  trial  exhibited  to  the  jury  by 
physical  action,  the  mode  and  manner  of  a 
robbery,  it  was  held  that  the  court  on  writ 
of  error  would  presume  that  the  representa- 
tion sufficiently  proved  the  violence  to  bring 
the  prisoner  within  the  statute.  Mahoney 
V.  People,  5  N.  Y.  Supm.  N.  S.  329. 

43.  Error  relieved  against  notwith- 
standing no  exception  was  taken.     Where 


WRIT  OF  EREOR. 


665 


Hearing. 


thereis  a  review  of  a  judgment  of  the  General 
Sessions  by  tiie  New  York  Supreme  Court 
upon  writ  of  error,  even  if  there  were  no 
request  or  no  exception,  the  court  ought, 
under  the  statute  (Laws  of  1855,  ch.  337, 
§  3),  if  they  discover  any  error  which  might 
have  prejudiced  the  prisoner,  to  give  him  the 
benefit  of  it.  McNevins  v.  People,  61  Barb. 
307. 
44.  Error  which  miglit  possibly  have 


injured,  ground  of  relief.  The  rule  that 
when  although  it  appears  to  the  appellate 
court,  that  error  has  been  committed,  yet 
that  when  the  error  could  not  have  prej- 
udiced the  party  complaining,  it  will  not 
be  made  a  ground  of  reversal,  is  only  ap- 
plicable where  the  error  could  not  by  any 
possibility  have  produced  injury.  Stokes. 
V.  People,  53  N.  Y.  164. 

See  Appeal  ;  Bill  op  exceptions. 


ADDENDA. 


(In  arranging  the  work  the  Jollowing  cases  were  accidentally  omitted.) 


When  demandable  as  a  right.  In  New 
York,  the  right  to  be  relieved  from  impris- 
onment by  means  of  the  writ  of  habeas  cor- 
pus, is  not  a  statutory  right,  but  is  a  part  of 
the  common  law  of  the  State.  The  writ,  in 
cases  within  the  relief  afforded  by  it  as 
known  and  used  at  common  law.  is  placed 
beyond  the  pale  of  legislative  discretion,  ex- 
cept that  it  may  be  suspended  when  public 
safety  requires,  as  provided  by  the  Constitu- 
tion. The  design  of  the  various  statutes  of 
the  State  has  been  to  increase,  rather  than 
to  impair,  the  efficiency  of  the  writ.  People 
ex  rel.  Tweed  v.  Liscomb,  60  N.  Y.  559. 

To  bar  the  applicant  from  a  discharge 
from  arrest  by  virtue  of  a  judgment  or  de- 
cree, or  an  execution  thereon,  under  the 
statute  (3  R.  S.  56B,  §  22),  the  court  in  which 
the  judgment  or  decree  is  given,  must  have 
had  jurisdiction  to  render  such  judgment 
under  some  circumstances.     Ibid. 

Nature  and  extent  of  injury.  The  pro- 
hibition of  the  42d  section  of  the  habeas  cor- 
2ms  act  (2  R.  S.  568)  forbidding  an  inquiry 
by  the  court  or  officer  into  the  legality  or 
justice  of  any  previous  judgment,  decree  or 
execution  specified  in  the  22d  section,  does 
not  deprive  the  court  or  officer  of  the  power, 
or  relieve  him  from  the  duty,  of  determining 
whether  the  judgment,  decree  or  execution 
emanated  from  a  court  of  competent  juris- 
diction, and  whether  the  court  had  the 
power  to  render  such  judgment.  The  terms 
''  legality  and  justice,"  as  used  in  the  statute, 
were  not  intended  to  include  questions  of 
jurisdiction  or  power.     If  the  record  shows 


that  the  judgment  is  not  merely  erroneous, 
but  such  as  could  not  under  any  circum- 
stances have  been  given,  the  case  is  not 
within  the  exception  of  the  statute,  and  the 
prisoner  must  be  discharged.     Ibid. 

Although  errors  of  a  court  having  power 
to  render  judgment,  committed  prior  to  the 
judgment,  can  only  be  reviewed  by  writ  of 
error,  yet  the  fact  that  the  court  had  juris- 
diction of  the  person  of  the  prisoner  and  of 
the  offense,  is  not  alone  conclusive.  The 
jurisdiction  of  the  court  to  give  the  judg- 
ment by  virtue  of  which  the  prisoner  is  held, 
is  a  proper  subject  of  inquiry  upon  the  return 
of  the  writ  of  habeas  corpus ;  and  the  court 
will  determine  upon  the  whole  record, 
whether  the  judgment  was  warranted  by 
law,  and  was  within  the  jurisdiction  of  the 
court.     Ibid. 

The  presumption  in  favor  of  the  jurisdic- 
tion of  a  court  of  general  jurisdiction,  is  one 
of  fact,  and  may  be  rebutted.  Where,  how- 
ever, the  jurisdiction  depends  upon  the  ex- 
istence of  certain  facts,  and  the  court  has 
passed  upon  those  facts,  the  determination 
is  conclusive  until  the  judgment  has  been 
reversed.     Ibid. 

Duty  of  court  when  part  of  judgment  is 
void.  Where  the  judgment  exceeds  the 
jurisdiction  of  the  com-t,  it  is  void  for  the 
excess ;  and  if  the  valid  part  of  the  judgment 
has  been  executed,  the  court,  upon  writ  of 
habeas  corpus,  has  power,  and  it  is  its  duty 
to  discharge  the  prisoner.     Ibid. 

The  relator  was  tried  at  a  Court  of  Oyer 
and  Terminer  upon  an  indictment  contain- 
ing 220  counts,  each  charging  separate  and 
distinct  misdemeanors  of  the  same  grade, 


ADDENDA. 


and  was  found  guilty  upon  204  of  the 
counts.  He  was  sentenced  upon  twelve  of 
the  counts  to  as  many  successive  terms  of 
imprisonment  of  one  year  each,  and  to  fines 
of  $250  each ;  and  upon  other  counts,  to  fines 
amounting  in  the  aggregate  to  $12,500.  The 
extreme  limit  of  punishment  prescribed  by 
the  statute  under  which  he  was  indicted 
for  a  single  misdemeanor  of  the  character 
charged,  was  imprisonment  for  one  year, 
and  a  tine  of  |350.  The  relator  having 
served  out  one  year's  imprisonment,  and  paid 
one  fine  of  $250,  made  application  upon 
writ  of  habeas  ccrrpus  to  be  discharged.  Held 
that  he  was  entitled  to  the  relief  asked. 
Ibid. 

8e.e  post.  Sentence. 

When  not  proper  remedy.  Whether  it 
is  error  to  join  in  the  same  indictment 
counts  for  several  distinct  offenses,  or 
whether  the  court  should  have  compelled 
the  prosecutor  to  elect  between  the  several 
counts,  are  questions  which,  as  they  do  not 
go  to  the  jurisdiction  of  the  court,  cannot 
be  deteiTuined  upon  a  writ  of  habeas  corpus 
to  inquire  into  the  legality  of  imprisonment 
under  the  judgment  rendered  upon  the  trial 
of  the  indictment.     Ibid. 

Effect  of  decision.  A  previous  decision 
iu  a  proceeding  on  habeas  corpus  will  not 
prevent  the  issuance  of  a  new  writ  on  the 
application  of  a  relator  who  is  restrained  of 
his  liberty ;  and  the  refusal  to  discharge  him 
under  one  writ  will  not  be  an  answer  to  a 
second  writ  issued  by  another  court  or  offi- 
cer. People  ex  rel.  Lawrence  v.  Brad^,  56 
N.  y.  182 ;  citing  ex  parte  Kaine,  3  Blatchf. 
1 ;  and  distinguishing  Mercein  v.  The  Peo- 
ple, 25  Wend.  64. 


Sentence. 


Under  indictment  containing  several 
counts.  Where  several  separate  and  dis- 
tinct offenses,  each  amounting  to  a  misde- 
meanor, are  charged  in  one  indictment,  in 
separate  counts,  and  the  prisoner  put  upon 


his  trial  for  all  the  alleged  offenses  at  the 
same  time  before  the  same  jury,  and  a  gen- 
eral verdict  of  guilty  rendered  on  all  the 
counts,  or  a  verdict  of  guilty  rendered  on 
various  specified  counts,  the  court  has  no 
power  to  pronounce  a  sej)arate  sentence  on 
each  count  upon  which  the  prisoner  is  found 
guilty,  and  thus  aggregate  sentences  on  a 
single  indictment  and  trial,  in  excess  of  the 
maximum  punishment  prescribed  by  statute 
for  the  grade  of  offense  for  which  the  prison- 
er was  indicted  and  tried.  People  ex  rel. 
Tweed  v.  Liscomb,  60  N.  Y.  559. 

The  statute  of  New  York  (2  R.  S.  700, 
§11),  directing  that  upon  the  conviction  of 
a  person  for  two  or  more  offenses,  before 
sentence  shall  have  been  pronounced  upon 
him  for  either,  the  imprisonment  to  which 
he  shall  be  sentenced  upon  the  second  or 
subsequent  conviction,  shall  commence  at 
the  termination  of  the  first  or  second  term 
of  imprisonment,  as  the  case  may  be,  has 
reference  to  separate  convictions  upon  in- 
dependent trials  on  distinct  indictments. 
Ibid. 


iDitness. 


Defendant  testifying  in  his  own  behalf. 

Where  the  intent  constitutes  the  vital  ele- 
ment of  the  offense  for  which  the  prisoner  is 
on  trial,  it  is  competent  for  him,  when  ex- 
amined as  a  witness  in  his  own  behalf,  to 
testify  as  to  his  intention  in  doing  an  act, 
which  act  is  claimed  by  the  prosecution  to 
be  a  material  circumstance  bearing  upon  the 
question  of  criminal  intent.  Where,  there- 
fore, on  the  trial  of  an  indictment  for  an 
assault  with  a  deadly  weapon  (an  axe),  with 
intent  to  kill,  the  prisoner,  while  testifying, 
was  asked  by  his  counsel,  "  What  was  your 
intention  in  taking  the  axe  from  the  shed  to 
the  house  ?  "  and  the  question  being  object- 
ed to,  was  ruled  out  on  the  ground  that  the 
prisoner  could  only  speak  to  his  intent  at  the 
time  of  striking  the  blow,  it  was  held  error. 
Kerrains  v.  People,  60  N.  Y.  221. 


TABLE   OF   CASES. 


A 


TABLE  OF  THE  CASES  DIGESTED, 

WITH  REFERENCES  TO  THE  PAGES  OF  THE  REPORTS,  AND  TO  THE 
SUBJECTS  OF  THE  WORK. 


Title  of  Case  and  Report. 

Aaron  v.  State,  37  Ala.  106 

"  "       31  Ga.  167     . 

"  "       39  Ala.  684 

"  "       39  Ala.  75      . 

"  "       39  Ala.  684 ;  40  lb.  307 

Abbott  V.  Booth,  51  Barb.  546 
Able  V.  Com.  5  Bush,  Ky.  698       . 
Abrahams  v.  State,  4  Clarke,  Iowa,  541 ;  6  lb.  117 
Abram  v.  People,  13  K  Y.  Supm.  N.  S.  493 
Abram  v.  State,  25  Miss.  589 
Ackley  v.  People,  9  Barb.  609      . 
Adair  v.  State,  1  Blackf.  203 
Adams  v.  People,  1  Comst.  173    . 

"  "         47  111.  376 

Adams  v.  State,  43  Ind.  373 ;  2  Green's  Crim.  Rep; 

"  "      6  Eng.  466     . 

Agitone  v.  State,  41  Texas,  501    . 
Aiken  v.  State,  35  Ala.  399     . 
Ailstuk's  Case,  3  Gratt.  650 
Albricht  v.  State,  6  Wis.  74   . 
Alcott  V.  State,  8  Blackf,  6 
Alderman  v.  People,  4  Mich.  414 
Alexander  v.  State,  3  Heisk.  475  . 
Alford  V.  State,  33  Ga.  303     . 
Algheri  v.  State,  25  Miss.  584 
Alkenbrack  v.  People,  1  Denio,  80 
Allen  V.  Com.  2  Bibb,  210 
Allen  V.  People,  57  Barb.  338 
Allen  V.  State,  40  Ala.  334 
"     10  Ga.  85. 

"  "     10  Ohio,  N.  S.  287 

"  "     5Yerg.  453       . 

"  "     5  Wis.  329 


Subject  and  Page. 

Evidence,  128,  144. 

Homicide,  278. 

Lai'ceny,  386. 

Nolle  prosequi,  466. 

Sentence,  555,  556;  Statutes,  581. 

Warrant,  646. 

Receiving  stolen  property,  533. 

Lasciviousness,  419. 

Larceny,  382. 

Grand  jury,  247. 

Forgery  and  counterfeiting,  220. 

Bail  and  recognizance,  70. 

False  jjretenses,  185. 
.      Homicide,  308,  319;  Verdict,  638. 
686.    Evidence,  165. 
.       Trial,  604. 

Assault  and  battery,  33. 
.       Jury,  371. 

Homicide,  265. 

Homicide,  313. 

Peddlers,  496. 
.       Con?p'y,102,105;  Ev.l50;  Wit.649. 

Homicide,  267. 
,       Homicide,  303. 

Evidence,  129. 

Larceny,  400. 

Indictment,  328. 

Grand  jury,  247. 

Burghiry,  86. 

Continuance,  112,  113,  114. 

Evidence,  159. 
.      Homicide,  308. 

Indictment,  330. 


670 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Allison  V.  People,  45  111.  37    . 

Allison  V.  State,  42  Ind.  354;  3  Green's  Cr.  Reps.  683. 

Ambrose  v.  State,  6  Ind.  351  .... 

Ames,  Case  of,  2  Maine,  365 

Anable  v.  Com.  24  Gratt.  563  ... 

Anderson  v.  Com.  5  Rand.  627     . 

Anderson  v.  State,  3  Head,  455 

"  "     48  Ala.  665 ;  2  Green's  Cr.  Reps.  620. 

"  "     26  Ind.  89  .  .  . 

"  "     7  Ohio,  250     . 

"  "     5  Ark.  444  ..  . 

"  "     14  Ga.  709      . 

Andre  v.  State,  5  Iowa,  889 
Andrews  V.  State,  3  Heisk.  165 ;  1  Green's  Cr.  Reps.  466. 

"      2  Sneed,  550  .  .  . 

Angel  V,  Com.  2  Va.  Cas.  231      . 
Angell  V.  State,  36  Texas,  542 ;  1  Green's  Cr.  Reps.  653. 
Ann  V.  State,  11  Humph.  150 
Anon.  31  Maine,  592  .... 

"       2  Hayw.  140     . 
"       1  Va.  Cas.  139         . 
"       1  Wash.  C.  C.  84 
Anthony  v.  State,  13  Smeed.  &  Marsh.  263 

"       4  Humph.  83  .  .  . 

"  "       Meigs,  265 ;  13  Sm.  &  Marsh.  263 

"       29  Ala.  27 
Archer's  Case,  6  Gratt.  705 
Arden  v.  State,  11  Conn.  408 
Arlen  v.  State,  18  New  Hamp.  563 
Armistead  v.  State,  18  Ga.  704     . 
Armitage  v.  State,  13  Ind.  441 
Armour  v.  State,  3  Humph.  379    . 
Armsby  v.  People  2  N.  Y.  Supm.  N.  S.  157 
Arnold  v.  State,  46  Ga.  455 

"      29  Ala.  46     . 
Arnold  v.  Steeves,  10  Wend.  514  . 
Ashlock  V.  Com.  7  B.  Mon.  44 
Atkins  V.  State,  16  Ark.  568 
Atzroth  V.  State,  10  Fla.  207 
Austin  V.  Pickett,  9  Ala.  102 
Austin  V.  State,  12  Mo.  893     . 

"  "     14  Ark.  555 

"     10  Mo.  591      . 
Austine  v.  People,  51  ill.  236 


Bastardy,  75. 

Malici.  misc.  432 ;  Nuisance,  472. 

Former  acquittal  and  convic.  224. 

Forgery  and  counterfeiting,  196. 

Larcenj',  377. 

Adultery,   12;  Conspiracy,  102. 

Assault  and  battery,  36. 

Burglary,  90. 

Evidence,  149, 

Forgery  and  counterfeiting,  208. 

Homicide,  266, 268 ;  New  trial,442. 

New  trial,  444,  447,  456. 

Seduction,  553. 

Concealed  weapons,  101. 

Escape,  125. 

Mayhem,  486. 

Homicide,  259. 

Homicide,  262,  268,  277,  285,  311. 

Burglary,  95. 

Homicide,  267. 

Nolle  prosequi,  466. 

Perjury,  500. 

Assault  and  battery,  50. 

Gaming,  242,  243. 

Homicide,  256,  257,  268. 

Homicide,  266;  Indictment,  343. 

Bail  and  recognizance,  61. 

Perjury,  499. 

Sentence,  557. 

Assault  and  battery,  39. 

Forgery  and  counterfeiting,  217. 

Burglary,  88. 

Larceny,  387,  411;  Trial,  596. 

Assault  and  battery,  89. 

Gaming,  24;  Trial,  621. 

Arrest,  21. 

Gaming,  245. 

Homicide,  269,  284,  307 ;  Trial,598. 

Larceny,  406. 

Bastardy,  76. 

Abatement,  1. 

Evidence,  143. 

Spirituous  liquors,  sale  of,  565. 

Evidence,  150. 


Baalam  v.  State,  17  Ala.  451 
Baccio  V.  People,  41  N.  Y.  265 
Badger  v.  State,  5  Ala.  21 


B 


Evidence,  155. 

Rape,  523. 

Bail  and  recognizance,  06. 


TABLE   OF   CASES. 


671 


Title  of  Case  and  Report. 


Badgley, 
Bagley  v, 
Bailey  v. 
Bailey  v. 
Baker  v. 
Baker  v. 
Baker  v. 

Baker  v. 


Subject  and  Page. 


Ex  parte,  7  Cow.  472 
State,  1  Humph.  486     . 

Bailey,  61  Maine,  361 

State,  26  Ind.  422 

Com.  10  Bush,  592    . 

Cooper,  57  Maine,  388    . 

People,  49  111.  308    . 
2  Hill,  325 

State,  23  Miss.  243    . 
"       12  Ohio,  N.  S.  214 
"       34  Ind.  104     . 
"       4  Ark.  56 


.     "  "       30  Ala.  521     . 

Baldwin  v.  People,  1  Scam.  304 
Baldwin  v.  State,  6  Ohio,  15 
"  "     12  Mo.  223 

Bales  V.  State,  3  West  Va.  685 
Balkum  v.  State,  40  Ala.  671 
Ball,  Ex  parte,  2  Gratt.  588     . 
Ball  V.  State,  26  Ind.  155 

"  "     7Blackf.  242     . 

Ball's  Case,  5  City  Hall  Kec.  851 

"  "     8  Leigh,  726 

Bamber  v.  Com.  10  Barr,  339 
Banks,  Ex  parte,  28  Ala.  28,  89 


Bankus  v.  State,  4  Ind.  114 

Barber  V.  State,  13  Fla.  675;  s.  c.  1  Green's  Crim. 
Reps.  723 
"  "     34  Ala.  213 

Barcus  v.  State,  49  Miss,  17  . 

Barefield  v.  State,  14  Ala.  603      . 

Barker  v.  Com.  2  Va.  Cas.  122 

Barker  v.  People,  3  Cow.  686 

Barker  v.  State,  48  Ind.  163  . 

Barkman  v.  State,  8  Eng.  703 

Barlow  v.  State,  2  Blackf.  114 

Barnes  v.  Com.  2  Dana,  388 

Barnes  v.  State,  36  Texas,  356 ;  1  Green's  Crim.  Reps. 
648 ;  41  Texas,  342 
"  "      20  Conn.  232;  19  lb.  398 

"  "      19  Conn.  398  ..  . 

Bamett  v.  People,  54  III.  325       . 

Barnett  v.  State,  16  Ark.  530  ..  . 

"  "       36  Maine,  198    . 

Barney  v.  People,  22  111.  160 

Barney  v.  State,  12  Sm.  &  Marsh.  68 

Baron  v.  People,  1  Parker,  246     . 


Habeas  corpus,  253. 

Gaming,  235. 

Forcible  e»itry  and  detainer,  192, 

Larceny,  381. 

Attorney,  58. 

Forcible  entry  and  detainer,  192. 

Assault  and  battery,  50. 

Bigamy,  78. 

Abatement,  1 ;  Jury,  370. 

Assault  and  battery,  35,  47. 

Assault  and  battery,  42. 

Evidence,    158;  Indictment,    340;. 

Mayhem,  436. 
Incest,  324. 
Larceny,  398,  399. 
Nuisance,   482. 
Trial,  602. 
Larceny,  384. 
Assault  and  battery,  33. 
Habeas  corpus,  252. 
Forcible  entry  and  detainer,  194.. 
Gaming,  241. 
Arson,  24. 
New  trial,  462. 
Bail  and  recognizance,  60. 
Bail     and    recognizance,    60,    65 ; 

Venue,  change  of,  636. 
Homicide,  261. 

False  imprisonment,  173. 
Receiving  stolen  property,  535, 
Assault  and  battery,  52. 
Bribery,  85. 
Larceny,  398. 
Dueling,  116. 
Trial,  616. 
Gaming,  234,  245. 
Jury,  369;  Trial,  612. 
Spirituous  liquors,  sale  of,  576. 

Evidence,  129,  143. 

Spirituous  liquors,  sale  of,  575,576, 

Witness,  656. 

Ev.  135  ;  Former  acq.  or  conv.  229. 

Bastardy,  74. 

Writ  of  error,  661. 

Trial,   604. 

Grand  jury,  247. 

Accessory,  10;  Verdict,  640. 


672 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Barring  v.  Com.  2  Duvall,  Ky.  95 
Barringer  agst.  People,  14  N.  Y.  593 
Barron  v.  People,  1  Bart).  136 
Barter  v.  Com.  3  Penn.  253 
Barton  v.  Keith,  2  Hill,  S.  C.  537 
Barton  v.  State,  23  Wis.  587 

"  "      18  Ohio,  221 

Bass  V.  State,  37  Ala.  469       . 
Bassett  v.  State,  41  Ind.  303 
Bates  V.  State,  31  Ind..  72 
Batre  v.  State,  18  Ala.  119 
Baxter  v.  Columbia  Township,  16  Ohio,  56 
Baxter  v.  People,  2  Gilman,  578;  3  lb.  368 

"        3  Gilman,  368 
Seal  V.  State,  15  Ind.  378 
Beasley  v.   State,  18  Ala.  535 
Beauchamp  v.  State,  6  Blackf.  299 


Bebee  v.  People,  5  Hill,  32     . 
Bedford  v.  State,  5  Humph.  552  . 
Beeman  v.  State,  5  Blackf,  165 
Beets  V.  State,  Meigs,  106  .  . 

Behan  v.  People,  17  N.  Y.  516 
Belcher  v.  State,  8  Humph.  63      . 
Bell  V.  Clapp,  10  Johns.  263  . 
Bell  V.  Com.  8  Gratt.   600  ..  . 

Bell  V.  State,  48  Ala.  684 ;  2  Green's  Crim.  Reps.  62 
"  "       5  Eng.  536        . 

"  "       5  Sneed,  507  ..  . 

"  "      41  Ga.  589-,  42  Ind.  335 

Bellair  v.  State,  6  Blackf.  104      . 
Belote  V.  State,  36  Miss.  96     . 
Ben  V.  State,  37  Ala.  103  . 

"        22  Ala.  9  .  .  . 

Benedict  v.  State,  14  Wis.  423     . 
Benham  v.  State,  1  Clarke,  Iowa,  542 
Benjamin  v.  Garee,  Wright,  450  . 
Bennac  v.  People,  4  Barb.  164 

"       4  Barb.  31         .  .  . 

Bennett  v.  State,  8  Eng.  694  . 
•"  "       8  Humph.  118  . 

1  Swan,  411 
Bentley  v.  State,  33  Ala.  596       . 

13  Vt.  468 
Berrian  v.  State,  2  Zabr.  9  .  .  . 

Berry  v.  Com.  10  Bush,  15      . 
Berry  V.  State,  10  Ga.  511 


Nuisance,  470. 

Certiorari,  97. 

Judgment,   363,  591. 

Summary  conviction,  583. 

Bail  and  recognizance,  59. 

Forgery  and  counterfeiting,  198. 

Larceny,  397,  406,  415. 

Grand  jury,  247. 

Abortion,  4. 

Indictment,  343. 

Verdict,  637. 

Bastardy,  74. 

Accessory,  9. 

New  trial,  444 ;  Trial,  615 ;  Wit.  648. 

Larceny,  385. 

Assault  &  batt.  49 ;  Indict.  337, 346. 

Homicide,  255,  277,  283,  299,  309; 

Indictment,  329 ;  Venue,  change 

of,  636 ;  Witness,  660. 
Evidence,  132. 
New  trial,  463,  463. 
Bastardy,  72. 
Homicide,  263,  297,  305. 
Spirit,  liq.  sale  of,  569 ;  Stats.  583. 
Adultery,  15. 
Arrest,  21. 
Indictment,  351,  352. 
Burglary,  91,  95 ;  Larceny,  387. 
Forgery  and  counterfeiting,   206 ; 

Indictment,  343;  Trial,  604. 
Gaming,  236. 
Larceny,  391,  397. 
Gaming,  243;  Grand  jury,  247. 
Evidence,  148;  Larceny,  409. 
Homicide,  293,  298. 
Indictment,  338. 
Trial,  620. 

Assault  and  battery,  41. 
Bail  and  recognizance,  60. 
Certiorari,  97;  Evidence,  149. 
Habeas  corpus,  253. 
New  trial,  463. 
Verdict,  640. 
Witness,  648. 
Gaming,  339. 
Verdict,  640. 

Indictment,  334;  Trial,  606. 
Homicide,  317;  Trial,  633. 
Evidence,  147;  Larceny,  399,  400; 

New  trial,  458. 


TABLE   OF   CASES. 


673 


Title  of  Case  and  Report. 


Subject  and  Page. 


Bersch  v.  State,  13  Ind.  434   . 

Bickley  v.  Norris,  3  Brev.  253 

Bielschofsky  v.  People,  5  K  Y.  Supra.  N.  S.  277     . 

Bigby  V.  State,  44  Ga.  344  ..  . 

Biggs  V.  State,  29  Qa.  723      . 

Bilbro  V.  State,  7  Humph.  534     . 

Biles  V.  Com.  32  Penn.  St.  539 

Bill  V.  People,  14  111.  433  ... 

Bions  V.  State,  46  lud.  311     .... 

Birch,  Ex  parte,  3  Gilman,  134 

Bird  V.  State,  14  Ga.  43  . 

Birdg  V.  State,  31  Ind.  88  .  .  . 

Birdsong  v.  State, 47  Ala. 68 ;  I  Green's  Crim.Pteps.729. 

Birge  v.  People,  5  Parker,  9   . 
Bishop  V.  State,  30  Ala.  34  .  .  . 

"       9  Ga.  121       . 

Bittick  V.  State,  40  Texas,  117 
Bivens  v.  State,  6  Eng.  455 
Black  V.  State,  36  Ga.  447       . 
Blackburn  v.  State,  39  Texas,  153 

"23  Ohio,  N.  S.  146  ;  2  Green's  Crim, 
Reps.  534 

"  "      32  Ohio,  N.  S.  102;  1  Green's  Crim, 

Reps.  660 
Bland  v.  People,  3  Scam.  364 
Bland  v.  State,  2  Carter,  608. 
Blanton  v.  State,  5  Blackf.  560 
Bledsoe  v.  Com.  6  Rand.  673 
Blemer  v.  People,  76  Ala.  265 
Blend  v.  People,  41  N.  Y.  604      . 
Blimm  v.  Com,  7  Bush,  Ky.  320 
Blodget  V.  State,  3  Ind.  403 
Blood  V.  Merrill,  17  Vt.  598    . 
Bloomer  v.  People,  1  N.  Y.  Ct.  of  App.  Decis.  146 

3  Keyes,  9  .  .  . 

Bloomer  v.  State,  3  Sneed.  66 
BloomhufE  v.  State,  8  Blackf.  205      . 
Bloss  V.  Tobey,  2  Pick.  320 
Blount  V.  State,  49  Ala.  381    . 
Bluff  V.  State,  10  Oliio,  N.  S.  547 
Blunt's  Case,  4  Leigh,  689      . 
Boak  V.  State,  5  Iowa,  430 
Bob  V.  State,  2  Yerg.  173 
"  "       33  Ala.  500 

Bock  V.  State,  50  Ind.  381      . 
Bodine  v.  People,  1  Denio,  381     . 
Bodkin  v.  State,  20  Ind.  281  . 
Boggs  V.  State,  45  Ala.  30 
43 


Forgery  and  counterfeiting,  233 -, 

New  trial,  460. 
Forcible  entry  and  detainer,  193. 
False  pretenses,  186. 
Adultery,  13. 
Assault  and  battery,  55. 
Misdemeanor,  438. 
Forgery  and  counterfeiting,  196. 
Trial,  610. 

Evidence,  165 ;  Homicide,  293. 
Pardon,  494. 

Homicide,  274  ;  Jury,  370. 
Malicious  mischief,  431. 
Ev.    137;   Trial,  594,  600;  Venue, 

change  of,  636. 
Bill  of  exceptions,  83. 
Forgery  &  counterfeiting,  198,  217. 
Ev.  168;  New  trial,  442,  445,448; 

Verdict,  642 ;  Witness,  658. 
Assault  and  .battery,  50. 
Homicide, 264, 277;  New  trial,  463. 
Former  acquittal  and  convic.  235. 
Assault  and  battery,  40. 

Homicide,  364. 

Rape,  520. 

Forgery  and  counterfeiting,  320. 

Homicide,  305  ;  New  trial,  459. 

Gaming,  244. 

Continuance,  114. 

Continuance,  113;  Indict.  339. 

Jurisdiction,  364. 

Intox.  as  an  excuse  for  crime,  361. 

Indictment,  333. 

Bastardy,  73. 

Robbery,  548,  549. 

Assault  &  bat.  41 ;  False  imp.  172. 

Nuisance,  475,  470,  486. 

Arson,  24. 

Evidence,  155. 

Forgery  and  counterfeiting,  230. 

Larceny,  380. 

Seduction,  553. 

Certiorari,  96. 

Evidence,  139,  143,  148 ;  Trial,  619. 

Malicious  trespass,  434. 

Homicide,  299,  303. 

Trial,  631. 

Trial,  010. 


674 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Bohannon    v.    Com,    8   Bush,    481 ;  1    Green's   Crim 

Eeps.  613       . 
Boles  V.  State,  9  Smed.  &  Marsh.  284 

"  "     24  Miss.  445 

"  "      13  Smed.  &  Marsh.  398 

Boling  V.  Luther,  2  Taylor,  202  . 
Bellman  Ex  farte^  4  Cranch,  75 
Bond  V.  People,  39  111.  26 
Bond  V.  State,  23  Ohio,  N.  S.  349      . 
Bonds  V.  State,  1  Mart.  &  Yerg.  143 
Bonfanti  v.  State,  2  Minn.  123 
Bonsall  v.  State,  35  Ind.  460 
Bonsell  v.  U.  S.  1  Iowa,  111    . 
Bonser  v.  State,  Smith,  Ind.  408 
Booby  V.  State,  4  Yerg.  Ill     , 
Boon  V.  State,  1  Kelly,  631 
Bostick  V.  State,  24  Ala.  266 
Boston,  &c.  R.  R.  v.  State,  32  New  Hamp.  215 
Boswell  V.  Com.  20  Gratt.  860 
• 

Boswell  V.  State,  8  Ind.  499    . 
Boulo  V.  State,  49  Ala.  22 
Bovard  v.  State,  30  Miss.  600 
Bower  v.  State,  5  Mo.  364 
Bowers  v.  People,  17  HI.  373 
Bowler  v.  vState,  41  Miss.  570 
Bowles  V.  State,  7  Ohio,  243    . 
Boyce  v.  People,  55  N.  Y.  644 

Boyington  v.  State,  2  Porter,  100 
Boyle  V.  State,  37  Texas,  359 
Boyles  v.  Com.  2  Serg.  &  Rawle,  40    . 
Brabham  v.  State,  18  Ohio,  N.  S.  485      . 
Bradford  v.  Paul,  18  Maine,  30 
Bradley  v.  People,  56  Barb.  72      . 
Bradley  v.  State,  31  Ind.  492 

Bradshaw  v.  Com.  16  Gratt.  507 
Brady  v.  Davis,  9  Ga.  73 
Bramlett  v.  State,  31  Ala.  376 
Brantly  v.  State,  13  Smed.  &  Marsh.  468 
Braswell  v.  State,  42  Ga.  609 
Bratton  v.  State,  10  Humph.  103 
Brauer  v.  State,  25  Wis.  413  . 
Breen  v.  People,  4  Parker,  380    . 
Breese  v.  State,  12  Ohio,  N.  S.  146    . 
Brennan  v.  People,  14  N.  Y.  Supm.  K  S.  171. 
Brennon  v.  State,  25  Ind.  403 
Brice  v.  State,  19  Ohio,  423 

Briceland  v.  Com.  74  Penn.   St.  463;  2  Green's  Cr. 
Reps.  523  ...... 


Homicide,  315,  317,  321. 

Homicide,  302. 

Jury,  370. 

New  trial,  449,  451. 

Perjury,  500. 

Treason,  587. 

Trial,  621. 

Insanity,  359. 

Indictment,  329. 

Assault  &  bat.  53 ;  Insanity,  359. 

Evidence,  157  ;  Larceny,  376. 

Accessoiy,  9. 

Spirituous  liquors,  sale  of,  570. 

New  trial,  444,  461. 

Trial,  601. 

Forgery  and  counterfeiting,  205. 

Corporation,  114. 

Insanity,  357;  Intoxication   as   an 

excuse  for  crime,  362. 
Malicious  trespass,  435. 
Vagrant,  633. 
Insanity,  355. 
Homicide,  300. 
Officer,  490. 
False  pretenses,  185. 
Rape,  621. 
New  trial,    450:    Seduction,  550^ 

552,  553. 
Grand  jury,  247. 
Larceny,  392. 
Bastardy,  77. 

Threatening  to  accuse,  585. 
Bastardy,  74, 
Nuisance,  482. 
Evidence,    129;    Homicide,    277; 

Insanity,  359 ;  Trial,  624. 
Indictment.  328. 
Commitment,  93;  Warrant,  646. 
Homicide,  304. 
Indictment,  349. 
Assault  and  battery,  39. 
Homicide,  257. 
Rape,  522. 

Evidence,  155 ;  Trial,  620. 
Burglary,  87,  91. 
Rape,  527. 
Larceny,  376, 
Indictment,  331. 

Evidence,  165;  Jurisdiction,  365. 


TABLE  OF  CASES. 


675 


Title  of  Case  and  Report. 


Subject  and  Page. 


Brinkerhoff  V.  Nelson,  13  Johns.  340 
Briuton's  Case,  3  Wallace,  Jr.  149 
Brister  v.  State,  26  Ala.  107 


Bristow  V.  Com.  15  Gratt.  634 
Britain  v.  State,  7  Humph.  159 

"  "11   Humph.  203 

Britt  V.  State,  9  Humph.  31   . 
Brittin  v.  State,  5  Eng.  299 
Brock  V.  State,  26  Ala.  104     . 

"  "      14  Ind.  425 

Brockway  v.  People,  2  Hill,  558 
Brooks  V.  People,  49  N.  Y.  436 
Brooks  V.  State,  3  Humph.  25 
Browder  v.  State,  9  Ala.  58 
Brown  v.  Com.  8  Mass.  59 

"      73  Penu.  St.  321;   3  Greens  C 

Reps.  511 
"       76  Penn.  St.  319 
"       78  Penn.  St.  122 
3  Va.  Cas.  516 
••  "      4Rawle,'259 

Brown  v.  People,  66  111.  344   . 
"        39  111.  407 
29  Mich.  233 
Brown  v.  State,  32  Miss.  433 
"      46  Ala.  175  . 


"  "      24  Ark.  620 

"      5  Eng.  607    . 

"  ;'  27  Ala.  47      . 

"  "  5  Yerg.  367  . 

"  28  Ga.  199    . 

"  9  Yerg.  198 

"  7  Eng.  623    . 

"  33  Texas,  134       . 

"  35  Texas,  691  ..  . 

"  8  Blackf.  561       . 

"  47  Ala.  47;  1  Greens  Cr.  Reps.  531 

"  "  8  Eng.  96  .  .  . 

"      31  Ala.  353    . 

"      16  Ind.  496  . 

Brown  v.  Union  Ins.  Co.  5  Day,  1       . 
Brown  agst.  U.  S.  McCahon's  Kansas,  239 
Brown's  Case,  9  Leigh,  633     . 

"  "3  Leigh,  769  ..  . 

Bryan  v.  State,  45  Ala.  86       . 


Forcible  entry  and  detainer,  193. 

Trial,  600. 

Evi.  149 ;   Judg.  363 ;    Trial,  594, 

639 ;  Venue,  change  of,  635,  636 ; 

Witness,' 654. 
Homicide,  359. 
Assault    and    battery,   47 ;     Nolle 

prosequi,  466. 
Lasciviousness,  416. 
False  pretenses,  179,  186. 
Indictment,  844  ;  Sunday,  584. 
Arson,  31 ;  Evidence,  167. 
Usury,  633. 
Nuisance,  475. 
Robbery,  546. 
Homicide,  304. 
Bail  and  recognizance,  65. 
Forgery  and  counterfeiting,  204. 

Evi.  135;   Homi.   396;   Jury,  371. 

Evidence,  141 ;  Homicide,  276, 396. 

Insanity,  356. 

Dueling,  117;  New  trial,  446. 

Sentence,  560. 

Forgery  and  counterfeiting,  317. 

Homicide.  333. 

Larceny,  389. 

Evidence,  149;  Homicide,  393. 

Evidence,  151 ;  Religious  meeting^ 

disturbance  of,  540. 
Evidence,  168;  Trial,  605. 
Former  acquittal  or  convic.  234  » 

Grand  jury,  248 ;  Verdict,  640. 
Gaming,  339;  Trial,  618. 
Gaming,  245. 
Homicide,  306. 
Indictment,  327. 
Jury,  370. 
Larceny,  392. 
Larceny,  403. 
New  trial,  444. 
Perjury,  510. 
Sentence,  559;   Venue,  change  of„ 

035. 
Spirituous  liquors,  sale  of,  567,574. 
Trial,  603. 
Barratry,  71. 
Pardon,  494. 
Evidence,  148. 
Trial,  602. 
Indictment,  341. 


G76 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Bryans  v.  State,  34  Ga.  323 
Buck  V.  State,  McCook,  61     . 
Buckland's  Case,  8  Leigh,  733 
Buckley  v.  State,  2  Greene,  Iowa,  183 
Bucklin  v.  State,  20  Ohio,  18      . 
Buford  V.  Com.  14  B.  Mon.  24 
Bugg  V.  State,  47  Ala.  51  . 
Bullock  V.  State,  10  Ga.  46      . 

Burdick  v.  People,  58  Barb.  51  . 

Burdine  v.  State,  25  Ala.  60  . 

Burgen  v.  Straughan,  7  J.  J.  Marsh.  583 

Burgess  v.  Bosworth,  23  Maine,  735 

Burgess  v.  Com.  2  Va.  Cas.  483  . 

Burgess  v.  State,  44  Ala.  190 

Burk  V.  State,  2  Har.  &  Johns.  426 

Burke  v.  People,  11  N.  Y.  Supm.  N.  S.  481 

Burke's  Case,  6  Leigh,  634 

Burnett  v.  Com.  4  Monr.  106  . 

Burnett  v.  State,  30  Ala.  19 

Burns  v.  Erben,  40  N.  Y.  463 

Burns  v.  People,  1  Parker,  182     . 

"59  Barb.  531;  5  Lans.  180 
Burns  v.  State,  49  Ala.  379 

"       35  Texas,  724 
"       48  Ala.  195. 
Burr  V.  Com.  4  Gratt.  534      . 
Burrill  v.  State,  18  Texas,  713      . 
Burrows  v.  State,  7  Eng.  65   . 
Burt  V.  State,  2  Const.  R.  489;  3  Brev.  413 

"  "      23  Ohio,  N.  S.  394 ;  2  Green's  Cr.  R 

Bush  V.  Republic,  1  Texas,  455    . 
Busick  V.  State,  19  Ohio,  19S 
Butler  V.  Com,  2  Duvall,  435 
Butler  V.  Foster,  14  Ala.  323  .  . 

Butler  V.  People,  4  Denio,  68 
Butler  V.  State,  12  Smed.  &  Marsh.  470 

"  "       22  Ala.  43 

"  "       5  Blackf.  280 

"  "       3  McCord,  383     . 

"  "17  Ind.  450     . 

Butman's  Case,  8  Maine,  113 
Buttram  v.  State,  4  Cold.  Tenn.  171  . 
Bynam  v.  State,  17  Ohio,  N.  S.  142 
Byrd  v.  Com.  2  Va.  Cas.  490 
Byrd  v.  State,  1  How.  Miss.  163 
Byrne  v.  State,  13  Wis.  519    . 
Bythwood  v.  State,  20  Ala.  N.  S.  47 


543 


Former  acquittal  and  convic.  224. 

Gaming,  236  ;  Indictment,  330. 

Forgery  and  counterfeiting,  204. 

Forgery  and  counterfeiting,  207. 

Witness,  659. 

Gaming,  243. 

Trial,  604. 

Homicide,  303;  Indictment,  336, 
339  ;    Larceny,  389,  404. 

Trial,  622  ;  Witness,  659. 

Gaming,  239. 

Bastardy,  72. 

Bastardy,  74. 

Indictment,  350. 

Malicious  mischief,  432. 

Indictment,  340 ;  Trial,  604, 

Mayhem,  436. 

Spirituous  liquors,  sale  of,  573. 

Bastardy,  73. 

Gaming,  239. 

Arrest,  20. 

Former  acquit,  or  convic  223,  230. 

Perjury,  502,  504,  506. 

Homicide,  290. 

Larceny,  387. 

Statutes,  579. 

Larceny,  405. 

Evidence,  170. 

False  pretenses,  181. 

Forcible  entry  and  detainer,  191. 

Rape,  524. 

Sjiirituous  liquors,  sale  of,  569. 

New  trial,  445. 

Trial,  622. 

Bail  and  recognizance,  60. 

Burglary,  90. 

Bail  and  recognizance,  65. 

Forg'y  &  counterf  g,  213,  222;  In- 
dictment, 346. 

Gaming,  241. 

Indictment,  341. 

Nuisance,  480. 

Indictment,  347. 

Laciviousness,  419. 

Forgeiy  and  counterfeiting,  211. 

Pardon,  494  ;  Witness,  649. 

Indictment,  329. 

Indict.  339;  Trial,  593;  Vot'g,645. 

Gaminjy.  241. 


TABLE   OF  CASES. 


677 


Title  of  Case  and  Report. 


Subject  and  Page. 


c 


Cabbell  v.  State,  4G  Ala.  195  . 

Cable  V.  State,  8  Blackf.  531 

Cadwell  v.  State,  17  Conn.  467 

Cady  V.  State,  44  Miss.  332 

Caesar  Williams  v.  State,  44  Ala.  398 

Cahoon  v.  Com.  31  Gratt.  823 

Cain  V.  State,  30  Ala.  534       . 

"  "      13  Smed.  &  Marsh.  43G 

"  "18  Texas,  391    . 

Caldwell  v,  Brindell,  1  Jones,  293 

Caldwell  v.  State,  49  Ala.  34  . 

Calkins  v.  State,  14  Ohio,  N.  S.  222 

Callahan  v.  State,  21  Ohio,  N.  S.  306 
"  "       41  Texas,  43    . 

Cameo  v.  State,  11  Mo.  579    . 

Cameron  v.  State,  8  Eng.  712 
"       14  Ala.  546 
"       15  Ala.  383       . 

Campbell  v.  Com.  59  Penn.  St.  266  . 

Campbell,  Ex  parte,  20  Ala.  89     . 

Campbell  v.  People,  16  111.  17 
"  "         8  Wend.  636 

Campbell  v.  State,  23  Ala.  44 


"  "        9  Yerg.  333  . 

"  "         17  Ala.  369 

"  "         11  Ga.  353     . 

"  "         16  Ala.  144 

"  "         3  Kelly,  417 

3  Kansas,  484      . 
Canada  v.  Com.  9  Dana,  304 

"  "       22  Gratt.  899 

Canby  v.  Griffin,  3  Harring.  333  .  ; 

Cancemi  v.  People,  16  N.  Y.  501 ;  18  lb.  128 

Cannon  v.  State,  3  Texas,  31         , 

Canter  v.  People,  1  N.  Y.  Ct.  of  App.  Decis.  305 

Cantor  v.  People,  5  Parker,  217    . 

Cantrill  v.  People,  3  Gilman,  35G 

Carberry  v.  State,  11  Ohio,  N.  S.  410 

Cardell  v.  State,  22  lud.  1       . 

Carico  v.  Com.  7  Bush,  Ky.  124  . 

Carlisle's  Case,  1  Dall.  35        . 

Carlton  v.  Com.  5  Mete.  532         . 

Carlton,  Matter  of,  7  Cow.  471 

Carmichael  v.  State,  12  Ohio,  N.  S.  553    . 


Assault  and  battery,  54. 

Nuisance,  475. 

Nuisance,  482. 

Evidence,  147. 

Larceny,  395. 

Evidence,  150. 

Gaming,  241. 

Gaming,  241. 

Larceny,  386. 

Bail  and  recognizance,  64. 

Malicious  mischief,  431. 

Evidence,  133. 

Evidence,  155. 

Larceny,  401. 

Assault  and  battery,  48. 

As't  &  bat. 57 ;  Indict. 332 ;  Ver.639. 

Evidence,  163. 

Gaming,  236,  244. 

Relig.  meet'g,  disturbance  of,  540. 

Bail  and  recognizance,  59. 

Homicide,  290,  319. 

Perjury,  500,  505,  508. 

Evi.  138, 141, 163;  Homicide,  275, 

279,  281,  282,  309,  314 ;    Wit. 

652,  659,  660  ;  Trial,  625. 
Former  acquittal  or  couvic'n,  225 ; 

New  trial,  442. 
Gaming,  239. 
Homicide,  292. 
Nuisance,  486. 
Rape,  526. 
Trial,  615. 
Misdemeanor,  439. 
Robbery,  549. 
Bail  and  recognizance,  68. 
Certiorari,  97,  98;  Trial,  594,  599, 

603,  018. 
New  Trial,  442,  453. 
Former  acquittal  or  con,  224,  225. 
Evidence,  127. 
Indictment,  337. 
Forgery  and  counterfeiting,  211. 
Homicide,  267. 
Homicide,  317. 
Treason,  587. 

Indictment,  310;  sentence,  557. 
Habeas  corpus,  251. 
Bigamy,  79. 


C78 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Carnal  v.  Peojile,  1  Parker,  272 

Carrotti  v.  State,  42  Miss.  334      . 
Carpenter  v.  People,  8  Barb.  603 
"4  Scam.  197 
Carpenter  v.  State,  4  How.  Miss.  183 
Carr  v.  State,  14  Ga.  358 
Carrington  v.  People,  6  Parker,  336  . 
Carroll  v.  State,  23  Ala.  28 

"3  Humph.  315 
Carter  v.  People,  2  Hill,  317 
Carter  v.  State,  2  Carter,  617 

"  "      20  Wis.  647 

"37  Texas,  362 

"  "46  Ga.  637 

Carwile  v.  State,  35  Ala.  392 
Casey  v.  State,  6  Mo.  646 
Cash  V.  State,  2  Overt.  198      . 

"  "       10  Humph.  Ill      . 

easily  v.  State,  32  IncL  62       . 
Caskells  v.  State,  4  Yerg.  149 
Cathcart  v.  Com.  37  Penn.  St.  103     . 
Cato  V.  State,  9  Fla.  163    . 
Cawley  v.  State,  37  Ala.  152    . 
Chahoon  v.  Com.  20  Gratt.  733     . 
Chamberlain  v.  People,  23  N.  Y.  85  . 
Chambers  v.  People,  4  Scam.  351 
Champ  V.  Com.  2  Mete.  Ky.  17 
Champer  v.  State,  14  Ohio,  N.  S.  437 
Champlain  v.  People,  2  Comst.  82 
Chancellor  v.  State,  47  Miss.  278 
Chaney,  Ex  parte,  8  Ala.  424 
Chaney  v.  State,  31  Ala.  342 
Chapman  v.  Com.  5  Whart.  427 
Chappel  V.  State,  7  Cold.  Tenn.  92 

"  "       8  Yerg.  166 

Charles  y.  People,  1  Comst.  180  . 
Charles  v.  State,  6  Eng.  389    . 
Chavaunah  v.  State,  49  Ala.  396  . 
Cheek  v.  State,  35  Ind.  492    ,. 
Cherry  v.  State,  7  Ohio,  222 
Chess  V.  State,  1  Blatchf.  198 
Chick  V.  State,  7  Humph.  161      . 
Childs  V.  State,  15  Ark.  20  i 
Chisholm  v.  State,  45  Ala.  66- 
Choice  V.  State,  31  Ga.  424     . 

Christian  v.  Cora.  23  Gratt.  954;  2  Green' 
Christian  \.  State,  40  Ala.  376 
Christian's  Case,  7  Gratt.  681       . 


Bill  of  exceptions,  82;  Trial,  595; 

Writ  of  error,  662. 
Adultery,  13. 

Abduction,  3 ;  Verdict,  637. 
Assault  and  battery,  57. 
Perjury,  499  ;  Trial,  631. 
New  trial,  459. 
Conspiracy,  104. 
Evidence,  142;  Homicide,  321. 
Homicide,  289,  299  ;  Trial,  603. 
Evidence,  170. 
Abort.  7  ;  Homi.  266 ;  Indict.  847  ; 

Trial,  619  ;  Verdict,  637. 
Arson,  29. 
Evidence,  126. 
Evidence,  129. 
Affray,  17. 
Evidence,  155. 
Affray,  17,  18. 
Indictment,  340. 
False  pretenses,  185. 
Receiving  stolen  property,  533. 
Homicide,  300. 
Rape,  518;  Trial,  614. 
Sentence,  560;  Verdict,  639. 
Forgeiy  and  counterfeiting,  197. 
Perjury,  498,  513. 
Indictment,  334. 
Evidence,  167. 
Assault  and  battery,  43. 
Bail  and  recognizance,  67,  68. 
Incest,  324. 
Habeas  corpus,  251. 
Evidence,  137. 
Arson,  26,  27,  28,  29. 
Evidence,  165. 
Indictment,  327. 
Libel,  423. 

Rape,  518,  525,  528,  532. 
Lottery,  426. 

Homicide,  290;  New  trial,  453. 
Larceny,  406. 

Forgery  and  counterfeiting,  211. 
Mayhem,  436. 
Affray,  IS. 
Evidence,  129. 

Evidence,  164;  Insanity,  355;   In- 
tox'n  as  an  excuse  for  crime,  360. 
Cr.  R.  659.     Rape,  529,  530. 

Spirituous  liquors,  sale  of,  574. 
Presentment,  516. 


TABLE   OF   CASES. 


G79 


Title  of  Case  and  Report. 


Subject  and  Page. 


Chute  V.  State.  19  Minn.  271 ;  1  Green's  Cr.  Reps.  571. 

City  Council  v.  Alirens,  4  Strobh.  241 

Clackner  v.  State,  33  Ind.  412     . 

Clark  V.  Cleveland,  6  Hill,  344  .  .  . 

Clark  V.  Cora.  16  B.  Mon.  206      . 

Clark,  Matter  of,  9  Wend.  312 

Clark  V.  People,  2  Lans.  329  . 

5  N.  Y.  Supm.  N.  S.  33         . 
Clark  V.  State,  34  Ind.  436  ..  . 

'^      13  Ga.  350      .... 
"  "      8  Humph.  671       . 

"  '•      23  Maine,  261 

"  "      12  Ohio,  483 

"  "      Smith,  Ind.  161 ;  1  Carter,  253 

Clarke  v.  Com.  25  Gratt.  908 
Clarke  v.  State,  8  Ohio,  N.  S.  630     . 
"  "      12  Ala.  492 

"  "      52  Ind.  67      . 

Clayton  v.  State,  2  Humph.  181   . 
Cleaveland  v.  State,  34  Ala.  254 
Clem  V.  State,  42  Ind.  420 ;  2  Green's  Cr.  Eeps.  687. 

"  "      33  Ind.  418 

"  "      31  lad.  480      . 

Clementine  v.  State,  14  Mo.  112  . 
Click  V.  State,  3  Texas,  282    . 
Cliflford  V.  State,  29  Wis.  327       . 
Clifton  V.  State,  5  Blackf.  224  ... 

Cluck  V.  State,  40  Ind.  263;  1  Green's  Cr.  Reps.  734. 
Coats  V.  People,  22  N.  Y.  245 

"  "        4  Parker,  662       . 

Cobel  V.  People,  5  Parker,  348  ..  . 

Cobletz  V.  State,  36  Texas,  353 ;  1  Green's  Cr.  R.  646 
Cochran  v.  State,  30  Ala.  542 

"  "7  Humph.  544 

Cockburu  v.  State,  32  Texas,  359 
Cocke  Y.  Com.  13  Gratt.  750  .  . 

Cody  V.  State,  3  How.  Miss.  27 
Coenhoven  v.  State,  Coxe,  258 
Coffman  v.  Com.  10  Bush,  495 
Cohen  v.  People,  5  Parker,  330     . 
Coker  v.  State,  20  Ark.  53       . 
Cole  V.  People,  43  N.  Y.  508 ;  affi'g  2  Lans.  370 
Cole  V.  State,  5  Eng.  318  . 

Coleman  v.  Com.  25  Gratt.  865      . 
Coleman  v.  Frum,  3  Scam.  378 
Coleman  v.  People,  58  N.  Y.  555 


Nuisance,  480,  481,  483,  485,  486; 
Trial,  608. 

Spirituous  liquors,  sale  of,  565. 

Larceny,  409. 

Arrest,  22;  Bail  and  recogniz.  59. 

Forgery  and  counterfeiting,  215. 

Fugitives  from  justice,  235 ;  Ha- 
beas corpus,  252. 

False  pretenses,  180,  185. 

Burglary,  94. 

Assault  and  battery,  42. 

Assault  and  battery,  57. 

Homicide,  257,  274,  275,  305. 

Indictment,  351. 

Insanity,  358 ;  Writ  of  error,  662. 

Trial,  631. 

Burglary,  87,  95. 

Forgery  and  counterfeiting,  208. 

Gaming,  240. 

Trial,  624. 

Trial,  620. 

Extortion,  171. 

Former  acquittal  or  convic.  229, 
231;  Homicide,  304;  Trial,  618. 

Homicide,  262 ;  Witness,  660. 

Homicide,  277;  Trial,  619. 

Nuisance,  484;  Witness,  656,  657. 

Indictment,  351;  Kidnapp'g,  371. 

Indictment,  339. 

Larceny,  395. 

Homicide,  255,291 ;  New  trial,  453. 

Embezzlement,  120. 

Embezzlement,  121, 122, 123;  Evi. 
159;    Indict.  353;  Trial,  610. 

Abortion,  4. 

Larceny,  375. 

Gaming,  239,  242. 

New  trial,  462. 

Continuance,  113. 

Forgery  and  counterf'g,  208,  223. 

New  trial,  445. 

Forcible  entry  and  detainer,  194. 

Homicide,  264,  308,  317. 

Receiving  stolen  pro2)erty,  535. 

Homicide,  284,  285. 

Trial,  609. 

Assault  and  battery,  51,  52,  53; 
New  tri.  461 ;  Sentence,  555,  559. 

Witness,  648. 

Bastardy,  76. 

New  trial,  447. 


080 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Coleman  v.  People,  55  N.  Y.  81 ;  58  lb.  555 ;  affi'g  4 

N.  Y.  Supm.  N.  S.  61       . 
Coleman  v.  State,  33  Ala.  581       . 

"  "       13  Ala.  603  ... 

"  "       8  Eng.  105         . 

Collier  V.  State,  39  Ga.  31         . 
"      8  Eng.  670 
"  "      30  Ark.  36       . 

Collins  V.  Com.  3  Serg.  &  Rawle,  330 
Collins  V.  People,  4  N.  Y.  Supm.  N.  S.  77;  8  lb.  610. 

39  111.  333  . 
Collins  V.  State,  14  Ala.  608  . 

"  "       3  Heisk.  14  ... 

"  "       33  Ala.  434  . 

Colt  V.  People,  1  Parker,  611 ;  3  Hill,  433 


Colvi 
Com 
Com 


Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Cora. 

Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 

Com. 


"         1  Parker,  617 
u  T.  State,  11  Ired.  361 
V.  Abbott,  13  Mete.  130 
v.  Adams,  7  Mete.  50 

"        7  Gray,  43      . 
1  Gray,  481 
4  Gray,  37      . 
V.  Adcock,  8  Gratt.  661 
V.  Aglar,  Thach.  Crim.  Cas, 
V.  Abl,  43  Penn.  St.  53 
V.  Alden,  14  Mass.  388 
V.  Alderman,  4  Mass.  477 
V.  Alfred,  4  Dana,  495 
V.  Andrews,  97  Mass.  543 

"  3  Mass.  136 

V.  Annis,  15  Gray,  197 
V.  Anthes,  5  Graj^,  185 
V.  Arlin,  Thach.  Crim.  Cas. 
V.  Arrance,  5  Allen,  517 
V.  Ashley,  3  Gray,  356 
V.  Atee,  8  Dana,  38 
V.  Austin,  7  Gray,  51 
V.  Ayer,  3  Cush.  150       . 
V.  Bagley,  7  Pick.  340,  379 
V.  Bailey,  13  Allen,  541 

"        1  Mass.  63 
V.  Bakeman,  105  Mass.  53 


41'; 


389 


Com.  V.  Baker,  10  Cush.  405 
Com.  V.  Baldwin,  11  Gray,  197 
Com.  V.  Bangs,  9  Mass.  387 
Com.  V.  Barbarick,  15  Mass.  103 
Com.  V.  Barhight,  9  Gray,  113 
Com.  V.  Barlow,  4  Mass.  439  . 


Receiving  stolen  property,  538. 

Concealed  weapons,  101. 

Gaming,  340. 

New  trial,  443. 

Assault  and  battery,  49. 

Homicide,  390. 

Homicide,  397 ;  New  trial,  444. 

Conspiracy,  106,  108. 

Bigamy,  79. 

Larceny,  414. 

Adultery,  13. 

Homicide,  373. 

Receiving    stolen   property,   539;^ 

Trial,  637. 
Homicide,  377;   Jury,   370;  Sen- 
tence, 554. 
Writ  of  error,  663. 
Forgery  and  counterfeiting,  313. 
Jury.  370. 

Forgery  and  counterfeiting,  313. 
Larceny,  387,  398. 
Spirituous  liquors,  sale  of,  568. 
"  ••       569. 

Indictment,  350. 
Voting,  643. 
Pardon,  495. 
Perjury,  504. 

Former  acquit,  or  conviction,  337. 
Indictment,  348. 
Escape,  135. 

Receiving  stolen  property,  534. 
Larcenj',  400,  406,  410. 
Verdict,  637. 

Forgery  and  counterfeiting,  309. 
Larceny,  403 ;  Trial,  609. 
Nuisance,  480,  481. 
Misdemeanor,  438. 
Evidence,  131 ;  Trial,  598. 
Forgery  and  counterfeiting,  301. 
Extortion,  171;  Imlictment,  333. 
Fishery,  190. 

Forgery  and  counter'g,  303,  305. 
Former   acquittal    or  conviction,. 

331;  Nuisance,  480,483,484. 
Spirituous  liquors,  sale  of,  569. 
Forgery  and  counterfeiting,  198^ 
Indictment,  337. 
Lasciviousness,  430. 
Complaint,  100. 
Misdemeanor,  438. 


TABLE  OF  CASES. 


681 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com, 
Coin. 


Com, 
Com, 
Com, 
Com, 


Com. 
Com, 
Com, 
Com, 
Com 
Com 


V.  Barney,  10  Cush.  478 
V.  Barry,  116  Mass.  1     . 

115  Mass.  146;  2  Green's  Cr.  R.  285 
"        9  Allen,  276 
V.  Batchelder,  Thacli.  Cr.  Cas.  191 
V.  Batris,  1  Mass,  95 
V.  Beaman,  8  Gray,  497 
V.  Bean,  11  Cush.  414     . 

"      14  Gratt.  52 

"      117  Mass.  141  . 
V.  Bearse,  108  Mass.  487 
V.  Beckley,  3  Mete.  330 
V.  Belgard,  5  Gray,  95 
V.  Benesh,  Thacli.  Cr.  Cas.  684 
V.  Bennett,  2  Va.  Cas.  235 
X.  Berry,  5  Gray,  93 


Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 

Com. 

(< 

Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 


Com. 
Com. 
Com. 


"      99  Mass.  428 
Betton,  5  Cush.  427  . 

Bigelow,  3  Pick.  31     . 
Billings,  97  Mass.  405 
Birdsall,  69  Penn.  St.  482      . 
Biron,  4  Dall.  125  ... 

Blackburn,  1  Duvall,  4 
Blaisdell,  107  Mass.  234  . 
Blanding,  3  Pick.  304 
Blood,  97  Mass.  538         . 
Bolton,  1  Serg.  &  Rawle,  328 
Bonner,  9  Mete.  410         . 

"       97  Mass.  587 
Boon,  2  Gray,  74  ... 

Boott,  Thach.  Crim.  Cas.  390 
Bosworth,  22  Pick.  397  . 
Bowdeu,  14  Gray,  103 
Bowen,  13  Mass.  350  ;  2  Wheeler's  Cr.  Cas.  226 
Bowman,  3  Barr,  202 
Boyer,  7  Allen,  306     . 
Boynton,  12  Cush.  499     . 
Bradford,  9  Mete.  268 
Bradley,  2  Cush.  553 
Brady,  5  Gray,  78 ;  7  lb.  320 
Brainard,  Thach.  Crim.  Cas.  140 
Branamon,  8  B.  Mon.  374 
Brettun,  100  Mass.  2G0    . 
Briggs,  5  Mete.  559    . 

5  Pick.  429  . 

"       7  Pick.  177   . 
"        11  Mete.  573 
Brigham,  16  Pick.  10 
Brooks,  9  Gray,  299  . 

Brown,  14  Gray,  419 


Arson,  24,  26,  29. 

Embezzlement,  122;  Larc'y,  375. 

Evidence,  131. 

Trial,  623. 

Libel,  421,  424, 

Trial,  593. 

Larceny,  388,  400. 

Malicious  mischief,  431. 

Nuisance,  472. 

Receiving  stolen  property,  534. 

Homicide,  269. 

As'lt  and  bat.  43 ;  Indict.  349, 

Evidence,  137. 

New  trial,  441,  457,  459. 

Rape,  520,  521. 

Former    acquittal   or  conviction, 

223 ;  Riot,  545. 
Larceny,  875. 
Arson,  29. 

Forcible  entry  and  detainer,  192. 
Evidence,  130,  169. 
Sentence,  557. 
Homicide,  305. 
Conspiracy,  104. 
Nuisance,  471. 
Libel.  421,  424 
Adultery,  16. 
Bail  and  recognizance,  65. 
Libel,  421. 
Witness,  656. 

Officer,  489 ;  Spir.  liq.  sale  of,  569. 
Dueling,  116,  117. 
New  tr,  447 ;  Verd.  636 ;  Wit.  660. 
Burglary,  92. 
Homicide,  263. 
Nuisance,  472. 
Bigamy,  81. 

Unwholesomeprov'ns,  sale  of,  032. 
Votmg,  643,  645. 
Lasciviousness,  418, 
Perjury,  490,  5I3. 
Indictment,  348 ;  Witness,  656. 
Spirituous  liquors,  sale  of,  566, 
Larceny,  388. 
Escape,  124, 

New  tr.  464 ;  Rec  stolen  prop.  537, 
Nolle  prosequi,  466. 
Spirituous  liquors,  sale  of,  575. 
Bail  and  recognizance,  64. 
Evidence,  159. 
Abortion,  4,  5,  7  ;  Conspiracy,  108, 


682 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  Y.  Brown,   3  Rawle,  207      . 
15  Gray,  189 
"4  Mass.  580 

"  "  ISMetc.  3G5 

''  "2  Gray,  358 

Com.  V.  Bryden,   9  Mete.  137 
Com.  V.  Buckingham,  Tliach.  Crim.  Cas.  29 
Com.  V.  Bugbee,  4  Gray,  206 
Com.  V.  Bulman,  118  Mass.  456     . 
Com.  V.  Burdick,  2  Barr,  163 
Com.  V.  Burk,  11  Gray,  437 
Com.  V.  Burke,  16  Gray,  32    . 

"     12  Allen,  182 

"  "     105  Mass.  376 

"  "     14  Gray,  100 

Com.  V.  Burns,  4  J.  J.  Marsb.  177 
Com.  V.  Butterick,  100  Mass.  1     . 

"  "  100  Mass.  12 


Com. 

V.  Butts,  2  Va.  Cas.  18         . 

Com. 

V.  Buxton,  10  Gray,  9     . 

Com. 

V.  Byce,  8  Gray,  461              ... 

Com. 

V.  Byron,  14  Gray,  31     . 

Com. 

V.  Cabin,  12  Allen,  540         . 

Com. 

V.  Cain,  102  Mass.  487    . 

Com. 

V.  Calbert,  1  Bald.  350         . 

Com. 

T.  Calef,  10  Mass.  153     . 

Com. 

V.  Calbane,  110  Mass.  498     . 

Com. 

V.  Call,  21  Pick.  509       . 

Com. 

V.  Callagban.  2  Va.  Cas.  460         ■  . 

Com. 

V.  Calvert,  1  Va.  Cas.  181 

Com. 

V.  Campbell,  7  Allen,  541    . 

u 

"           103  Mass.  436        . 

Com. 

V.  Canada,  13  Pick.  86          .             .             . 

Com. 

V,  Carey,  12  Cusb.  246 

u 

"      2  Mass.  523 

u 

"      2  Pick.  47       . 

u 

"      103  Mass.  214       . 

Com. 

V.  Carpenter,  108  Mass.  15 

Com. 

V.  Carrington,  116  Mass.  37 

Com. 

V.  Carter,  11  Pick.  277 

Com. 

V.  Casey,  11  Cusb.  417         . 

Com. 

V.  Castles,  9  Gray,  121 

" 

"       9  Gray,  123         . 

Com. 

V.  Catlin,  1  Mass.  8         .             .             . 

Com. 

V.  Cayton,  2  Dana.  138         . 

Com. 

V.  Centr.  Bridge  Corp.  12  Cusb.  242      • 

Com 

V.  Cbace,  9  Rich.  15              .             .             . 

Com 

V.  Chandler,  Thacb.  Crim.  Cas.  187      . 

Burglary,  88,  91. 

False  pretenses,  184,  187. 

Larceny,  374. 

Nuisance,  483. 

Spirituous  liquors,  sale  of,  571. 

Spirituous  liquors,  sale  of,  572. 

Libel,  423. 

Assault  and  battery,  51. 

Nuisance,  481. 

False  pretenses,  179. 

Spirituous  liquors,  sale  of,  575. 

Former  acquittal    or    conviction, 

225;  Witness,  658. 
Larceny,  404. 
Rape,  519. 
Verdict,  639. 
Gaming,  236. 

Embezzlement,  118, 119,  122,  123. 
Forgery  and  counterfeiting,   207, 

208,  210,  213,  219. 
Gaming,  244. 
Nuisance,  475. 
Trial,  613. 

Evidence,  169  ;  Perjury,  507. 
Larceny,  404. 
Nolle  prosequi,  467. 
Perjury,  499. 
Lasciviousness,  417,  420. 
Complaint,  100. 
Adultery,  12;  False  pretenses,  173, 

179,  182;  Verdict,  641. 
Bribery,  85. 
Perjury,  499. 
Homicide,  257. 

Larc.  388 ;  Rec.  stol.  prop.  535,  538. 
Bail  and  recognizance,  59. 
Arrest,  21 ;  Homicide,  309. 
Extortion,  171. 

Forg'y  and  counter.  204,  205,  216. 
Verdict,  639. 

Tbreat'ng  to  accuse  of  crime,  586. 
Verdict,  641. 
Trial,  593. 
Homicide,  296. 
False  pretenses,  188. 
Forg'y  and  counterfeit^,  202,  203. 
Lasciviousness,  419. 
Bail  and  recognizance,  68. 
Nuisance,  474,  480. 
Larceny,  384. 
Forg'y  and  counter.  196,  200,  219. 


TABLE   OF  CASES. 


683 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com. 
Com. 
Com. 

Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 


Com. 
Com. 
Com. 
Com. 


Chaney,  7  Allen,  537       . 
Chapia,  5  Pick.  199 
Chapman,  1  Va.  Cas.  138 

"  11  Cush.  423 

Chase,  Thach.  Crim.  Cas.  267      . 
Chathams,  50  Penn.  St.  181 
Chauncey,  2  Ashm.  90 
Cheney,  6  Mass.  347 
Chesley,  107  Mass.  223    . 
Child,  10  Pick.  253     . 
Choate,  105  Mass.  451       .  ' 
Chubb,  5  Rand.  715 
Church,  1  Penn.  St.  105 
City  of  Boston,  97  Mass.  555 
Clair,  7  Allen,  535  ... 

Clanahan,  3  Mete.  Ky.  8 
Clap,  4  Mass.  163 
Clapp,  5  Pick.  41      . 
Clark,  3  Va.  Cas.  401       . 

"      3  Ashm.  105    . 

"      14  Gray,  367         . 

"      3    Brown,  233 

"      6    Gratt.  615        . 
Clifford,  8  Cush.  215 
Clue.  3  Rawle,  498  .  .  . 

Cobb,  14  Gray,  57       . 
Coe,  115  Mass.  481 ;  2  Green's  Crim.  Reps. 


292, 


Com.  V.  Cole,  5  Mass.  517 
Com.  V.  Collins,  12  Allen,  181 
Com.  V.  Colton,  11  Gray,  1 

"  "        8  Gray,  488 

Com.  V.  Concannon,  5  Allen,  503 
Com.  V.  Conley,  1  Allen,  6 
Com.  V.  Cook,  13  Mete.  93      . 
Com.  V.  Cooley,  6  Gray,  350 

"  "        10  Pick.  37 


Com.  V 

Com.  V 
Com.  V 
Com.  V 
Com.  V 
Com.  V 
Com. 
Com. 
Com. 
Com. 
Com. 


"        1    Allen,  358 
Cooper,  5  Allen,  495 
15  Mass.  187 
V.  Costley,  118  Mass.  1 
V.  Craig,  6  Rand.  731   . 
V.  Crane,  1  Va.  Cas.  10 
V.  Crawford,  9  Gray,  138 
V.  Creed,  8  Gray,  387 
V.  Crocker,  108  Mass.  464 
V.  Crotty,  10  Allen,  403       . 
V.  Crowinshield,  10  Pick.  497 
V.  Crupper,  3  Dana,  466 
V.  Cuffee,  108  Mass.  385 


Forgery  and  counterfeiting,  311. 
Nuisance,  474. 
Bribery,  85. 

Homicide,  368,  302. 

Sentence,  554. 

Larceny,  375. 

Bill  of  excep's,  82;  Grand  jur.  248. 

Bail  and  recognizance,  59. 
Former  acquittal  or  convic.  231. 

New  trial,  450. 

Arson,  31;  Evidence,  161,  105. 

Lottery,  437. 

Indictment,  353. 

Nuisance,  468. 

Former  acquittal  or  conv'tu,  336. 

Indictment,  344. 

Libel,  434. 

Lottery,  437,  428. 

Abatement,  1. 

Bastardj',  77  ;  Indictment,  338. 

Evidence,  154. 

Grand  jury,  247. 

Indictment,  352. 

Robbery,  546. 

Trial,  611. 

Adultery,  15,  16. 

Evidence,  134;  False  preten.  176, 
180,  183,  187,  188;  Trial,  607. 

Bastardy,  74. 

Larceny,  877. 

Indictment,  329. 

Statutes,  579. 

Embezzlement,  131,  123. 

Common  drunkard,  99. 

Abduction,  3. 

Arrest,  31  ;    Assault  and    bat.  44. 

Disinterring  the  dead,  115  ;  Indict- 
ment, 351,  437. 

Officer,  493. 

Homicide,  394,  398. 

Rape,  538. 

Evid.  139 ;  Hom.  264 ;    Trial,  629. 

Bail  and  recognizance,  69. 

Homicide,  264. 

Complaint,  100. 

Assault  and  battery,  49. 

Evidence,  145. 

Warrant,  646. 

Conspiracy,  109. 

Gaming,  342. 

Evidence,  143. 


G81 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com. 

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Com. 

Com. 

Com. 
ti 

Com. 
Com. 
Com. 

Com. 
Com. 
Com. 

Com. 
Com. 
Com. 
Com. 


Com. 
Com. 


Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 

Com. 
Com. 

Cora. 
Com. 
Com. 
Com. 

Com. 
Com. 
Com. 


CuUins,  1  Mass.  IIG 
Cummings,  3  Cush.  212 
Cunningham,  5  Litt.  292 
Curley,  101  Mass.  24  . 
Curtis,  97  Mass.  574 

Tbach.  Cr.  Cas.  20:; 
Dacey,  107  Mass.  206 
Daggett,  16  Mass,  447 
Dailey,  110  Mass.  503 
12  Cush.  80  . 
Daley,  4  Gray,  209 
Dallinger,  118  Mass.  489 
Danels,  2  Va.  Cas.  402 

5  Allen,  511. 
Dascom,  111  Mass.  404 
Davenport,  2  Allen,  299 
Davidson,  1  Cush.  33 
Davis,  11  Pick.  433  . 

"      9  Mass.  415 

"      11  Gray,  4      . 

"      104  Mass.  548 

"      9  Cush.  283    . 
Deacon,  8  Serg.  &  Rawle,  47 

10  Serg.  &  Rawle,  125 
Dean,  110  Mass.  04 ;  2  Green's  Cr.  Reps 

"      1  Pick.  387      . 


"      109  Mass.  349;  1  Green's  Cr. 
Dedham,  16  Mas-^.  141 
Dennie,  Thach.  Crim.  Cas.  165 
Dennison,  9  Watts,  142 
Densmore,  12  Allen,  535  . 
Desmartean,  16  Gray,  1 
Desmond,  5  Gray,  80 
Devine,  Thach.  Crim.  Cas.  1G5 
Dewitt,  10  Mass.  154       . 
Dillane,  1  Gray,  483  . 
Doane,  1  Cush.  5 
Dockham,  Thach.  Crim.  Cas.  2S 
Doherty,  10  Cush.  52       . 

103  Mass.  443 
Dole,  2  Allen,  105 
Donovan,  IG  Gray,  18 

13  Allen,  571   . 
Doran,  14  Gray,  37    . 
Dorsey,  103  Mass.  412      . 
Dorus,  108  Mass.  488 
Dougherty,  107  Mass.  243 

6  Gray,  349 
Douglass,  5  Mete.  241 
Dower,  4  Allen,  297  . 
Downey,  9  Mass.  520 


Reps.  1 


95 


Larceny,  385. 

Writ  of  error,  662. 

Assault  and  battery,  42. 

Escape,  125. 

Adultery,  16;  Evidence,  145. 

Former  acquittal    or  convict.  223. 

Evidence,  128. 

Bail  and  recognizance,  64. 

Burglary,  93. 

Trial,  603. 

For.  ac.  or  c.  231 ;  Sp.  liq.  sale, 576. 

Forgery  and  counterfeiting,  204. 

Religious  meeting,  disturb,  of,  541. 

Vagrant,  633. 

Former  acquit,  or  convict.  227,  231. 

Nuisance,  482,  485. 

False  pretenses,  187. 

Barretry,  71,  72. 

Conspiracy,  105. 

Forg.  and  coun.  220;  Indict.  336. 

Larceny,  375. 

Larceny,  393. 

Arrest,  20,  21. 

Fugitives  from  justice,  233. 

False  pretenses,  183;  Indict.   345. 

Gaming,  237. 

Rape,  528. 

Indictment,  350. 

Extortion,  171,  172. 

Bail  and  recognizance,  71. 

Homicide,  313. 

Evidence,  128;  Homicide,  303. 

Evidence,  159. 

Extortion,  172. 

Larceny,  386. 

Spirituous  liquors,  sale  of,  573. 

Larceny,  413. 

Abatement,  1. 

Burglary,  91,  93. 

Concealed  weapons,  101. 

Forgery  and  counterfeiting,  212. 

Lasciviousness,  418. 

Verdict,  637. 

Complaint,  99. 

Homicide,  278. 

Thr.  to  ac.58G ;  Tri.630 ;  Verd.641. 

Assault  and  battery,  38. 

Complaint,  100. 

Subornation  of  perjury,  513,  514. 

Homicide,  285;  Trial,  609. 

Bail  and  recognizance,  64. 


TABLE   OF  OASES. 


685 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Drew,  3  Cush.  277      . 
"  "      19  Pick.  179 

"  "4  xMass.  391      . 

Com.  V.  Drum,  58  Penu.  St.  9       . 

"       19  Pick.  479  . 
Com.  V.  Dudley,  10  Mass.  403 
Com.  V.  Duffy,  11  Cush.  145  . 
Com.  V.  Duncan,  4  Serg.  &  Rawle,  449    . 
Com.  V.  Dunham,  Thach.  Crim.  Cas.  519 
Com.  V.  Durfee,  100  Mass.  146 
Com.  V,  Eagan,  103  Mass.  71  . 
Com.  V.  East  Boston  Ferry  Co.  13  Allen,  589 
Com.  V.  Eastern  R.  R.  Co.  5  Gray,  473 
Com.  V.  Eastman,  1  Cush.  189      . 

"  "  2  Gray,  76 

Com.  V.  Eaton,  15  Pick.  273  . 
Com.  V.  Eberle,  3  Serg.  &  Rawle,  9 
Com.  V.  Eckert,  2  Browne,  249 
Com.  V.  Eddy,  7  Gray,  583 
Com.  V.  Edgerly,  10  Allen,  184 
Com.  V.  Edwards,  1  Ashm.  46 
Com.  V.  Elburger,  1  "Whart.  469 
Com.  V.  Elisha,  3  Gray,  460 
Com.  V.  Elliott,  2  Mass.  372  . 

"  "110  Mass.  104  ;  2  Green's  Cr.  Reps. 

Com.  V.  Ervin,  2  Va.  Cas.  337 
Com.  V.  Essex  Co.  1 3  Gray,  239    . 
Com.  V.  Evans,  101  Mass.  25  . 
Com.  V.  Eyre,  1  Serg.  &  Rawle,  347 
Com.  V.  Fagan,  108  Mass.  471 
Com.  V.  Fairbanks,  2  Allen.  511  . 
Com.  V.  Falvey,  108  Mass.  304 
Com.  V.  Farley,  Thach.  Cr.  Cas.  654 

Com.  V.  Farrell,  5  Allen,  130 

"  "         105  Mass.  189      . 

Com.  V.  Farren,  9  Allen,  489 
Com.  V.  Farris,  5  Rand.  691 
Com.  V.  Feazle,  8  Gratt.  585  . 
Com.  V.  Feeney,  13  Allen,  560 
Com.  V.  Ferrigan,  44  Penn.  St.  386    . 
Com.  V.  Field,  13  Mass.  321  . 

Com.  V.  Finn,  108  Mass.  466  . 
Com.  V.  Fisher,  17  Mass.  46  ,  .  . 

Com.  V.  Fitchburg  R.  R.  Co.  12  Gray,  180     . 

"  "         10  Allen,  189 

Com.  V.  Flanagan,  7  Watts  &  Serg.  415]     . 
Com.  V.  Flynn,  3  Cush.  529 
Com.  V.  Fogerty,  8  Gray,  489 


Ab.  1 ;  For.  ac.or  c.  223 ;  Gam. 336. 

False  pretenses,  174,  178. 

Horn.  259,277,310;  New  trial,  460, 

462;  Sentence,  554. 
Homicide,  300,  316. 
Rape,  528. 

Forcible  entry  &  detainer,  190, 191. 
Larceny,  414. 
Bastardy,  76. 
Perjury,  497. 

Adultery,  15  ;  Verdict,  641. 
Assault  and  battery,  44. 
Homicide,  311. 
Homicide,  311. 
Conspir'y,  102,105;  Evidence,  132, 

133;  Indict.  352;   Trial,  591. 
Larceny,  387. 
Indictment,  339. 
Evidence,  138. 
Misdemeanor,  437. 
Insanity,  359. 

Forgery  and  counterfeiting,  218. 
Malicious  trespass,  435. 
Nuisance,  485. 

Receiving  stolen  property,  536. 
Continuance,   111. 
361.  Evidence,  150. 

Forgery  and  counterfeiting,  205. 

Corporation,  114. 

Homicide,  306. 

Assault  and  battery,  34. 

Trial,  608. 

Evidence,  164. 

Malicious  mischief,  431. 

Perjury,  497,503,  508,  510,   511; 

Witness,  647. 
Escape,  124. 

Former  acquittal  or  convict.  224. 
Unwholesome  provisions, sale,  632. 
Nuisance,  481. 
Gaming,  240. 
Accessory,  9. 
Homicide,  281. 
Arrest,  20,  21. 

Receiving  stolen  property,  535. 
Forgery  and  counterfeiting,  201. 
Corporation,  114. 
Indictment,  344. 
New  trial,  445,  446,  459. 
Arson,  24,  26. 
Rape,  520. 


686 


TABLE   OF   CASES, 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Foley.  99  Mass.  497         . 

Com.  V.  Ford,  5  Graj-,  475     .... 

Ill  Mass.  394        . 
Com.  V.  Fortune,  105  Mass.  592 
Com.  V.  Foster,  1  Mass.  488  ... 

107  Mass.  221. 
Com.  V.  Fowler,  4  Call,  35  .  .  , 

Com.  V.  Fox,  7  Gray,  585       . 
Com.  V.  Francis,  Thach.  Crim.  Cas.  240  . 
Com.  V.  Franklin,  4  Dall.  316 
Com.  V.  Frey,  50  Penn.  St.  245      . 
Com.  V.  Frye,  1  Va.  Cas.  19    . 
Com.  V.  Fuller,  8  Mete.  313 
Com.  V.  Galavan,  9  Allen,  271 

Com.  V.  Gale,  11  Gray,  320  ..  . 

Com.  V.  Gallagher,  1  Allen,  592 

IG  Gray,  240  . 
Com.  V.  Gallic,  7  Serg.  &  Rawle,  423 
Com.  V.  Gannett,  1  Allen,  7  .  .  . 

Com.  V.  Gearing,  1  Allen,  595 
Com.  V.  Gee,  6  Cush.  174. 
Com.  V.  Gibbs,  4  Dall.  253      . 
Com.  V.  Gibney,  2  Allen,  150         .  .  . 

Com.  T.  Gibson,  2  Va.  Cas.  70  .  .  . 

Com.  V.  Giles,  1  Gray,  406 

Com.  V.  Gill,  14  Gray,  400      . 

Com.  V.  Gillespie,  7  Serg.  &  RaAvle,  478  . 

"  "  "  "        469 

Com.  V.  Gleason,110  Mass.  66;  2  Green's  Cr.Reps.  260. 
Com.  V.  Glover,  111  Mass.  395 
Com.  y.  Goddard,  2  Allen,  148  ;  4  Ilj.312  ;  14  Gray,40-^. 


Com.  y.  Goding,  3  Mete.  130 

Com.  y.  Godley,  11  Gray,  454 

Com.  V.  Godsoe,  105  Mass.  464     . 

Com.  V.  Goodenough,  Thacli.  Cr.  Cas.  132 

Com.  y.  Goodhue,  2  Mete.  193     . 

Com.  y.  Goodrich,  13  Allen,  546 

Com.  V.  Goodwin,  14  Gray,  55 

Com.  y.  Gore,  3  Dana,  475 
Com.  y.  Gould,  12  Gray,  171 
Com.  y.  Gourdier,  14  Gray,  390 
Com.  y.  Grant,  116  Mass.  17 
Com.  V.  Greene,  1  Ashm.  289  . 
"  "        111  Mass.  392      . 

"        17  Mass.  515 
Com.  y.  Gregory,  7  Gray,  498 


Bre'ch  of  peace,84 ;  Com.  drunk.  99. 

Assault  and  battery,  38,  39. 

Trial,  610. 

Larceny,  387. 

Arrest,  21. 

Embezzlement,  118. 

Pardon,  494. 

Homicide,267,  279;  Witness,  655. 

Arson,  23. 

Certiorari,  96. 

False  pretenses,  181. 

Misdemeanor,  440. 

Forgery  and  counterfeiting,  211. 

Assault  and  battery,  49;  Evi- 
dence, 153;  Witness,  654. 

Evidence,  127. 

Nuisance,  468,  477. 

Larceny,  392,  414. 

Homicide,  303,  304. 

Nuisance,  475,  484. 

Officer,  492. 

Trial,  594,  597. 

Voting,  643. 

Riot,  543. 

Homicide,  268 ;  New  trial,  405. 

Bill  of  particulars,  83;  Spirituous 
liquors,  sale  of,  575. 

Evidence,  128  ;  Verdict,  637. 

Conspiracy,  107. 

Lottery,  429. 

Indictment,  327. 

Burglary,  87;  Trial,  610. 

False  pretenses,  180,  185,  189,- 
Evidence,  131 ;  Former  acquit- 
tal orconvic.  227  ;  Witness, 648. 

Gaming,   238. 

Spirituous  liquors,  sale  of,  572. 

Lasciviousness,  418. 

Forgery  and  counterf'g,  197,  208. 

Incest,  325 ;  Rape,  528. 

Cemetery,  95. 

Arson,  30;  Assault  &  battery,  45; 
Evidence,  152. 

Indictment,  328  ;  Witness,  648. 

Indictment,  352. 

Gaming,  236. 

Perjury,  498. 

Jury,  370. 

Larceny,  378. 

New  trial,  441,  447,  459,  464. 

Judgment,  363.    , 


TABLE   OF  CASES. 


687 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V 
Com.  V 


Com.  V. 
Com.  V. 


Com.  V.  Griffin,  110  Mass.  181 
"       3  Cusli.  523 
"  "       21  Pick.  523 

Com.  V.  Grimes,  10  Gray,  470 
Com.  V.  Gross,  1  Ashm.  281    . 
Com.  V.  Guild,  Thach.  Crim.  Cas.  329    . 
Com.  V.  Hackett,  2  Allen,  136 
Com.  V,  Hadley,  11  Mete.  66 
Com.  V.  Haggerty,  4  Brewster,  Pu.  326  ;  1  Green 

Reps.  180.        . 
Com.  V.  Hailstock,  2  Gratt.  564 
Com.  V.  Hale,  2  Va.  Cas.  241 
Com.  V.  Haley,  4  Allen,  318    . 
Com.  V.  Hall,  97  Mass.  570 ;  4  Allen,  305. 
"      9  Gray,  263 
"      15  Mass.  240 
Hamilton,  13  Gray,  480 
Hancock  Free  Bridge  Corp.  2  Gray,  58 
Com.  V.  Hardy,  1  Ashm.  410  . 
Com.  V.  Harley,  7  Mete.  506 
"7  Mete.  462    . 
Harlow,  110  Mass.  411     . 
Harman,  4  Barr,  269 
Com.  V.  Harmon,  2  Gray,  289 
Com.  V.  Harney,  10  Mete.  442 
Com.  V.  Harrington,  8  Pick.  26  . 
Com.  V.  Harris,  8  Gray,  470    . 
"  "  101  Mass.  29 

"  "         7  Gratt.  600  . 

Com.  V.  Harrison,  2  Va.  Cas.  202. 
Com.  V.  Hart,  6  J.  .J.  Marsh.  619       . 
"  "      10  Gray,  465 

"  "       11  Cush.  130;  2  Green's  Cr.  Rep 

Com.  V.  Hartnett,  3  Gray,  450 
Com.  V.  Harvey,  1  Gray,  487 
Com.  V.  Harwood,  4  Gray,  41 
Com.  V.  Hastings,  9  Mete.  259     . 
Com.  V.  Hatfield,  107  Mass.  227 
Com.  V.  Hathaway,  14  Gray,  392 
Com.  V.  Haughey,  3  Mete.  Ky.  223    . 
Com.  V.  Hawkins,  3  Gray,  463 

Com.  V.  Haynes,  2  Gray,  72    . 
Com.  V.  Hays,  1  Va.  Cas.  122         . 
Com.  T.  Hayward,  10  Mass.  34 
Com.  V.  Heath,  11  Gray,  303 
Com.  V.  Heflfron,  102  Mass.  148 
Com.  V.  Hendrie,  2  Gray,  503 
Com.  V.  Ilensley,  2  Va.  Cas.  149 
Com.  V.  Uersey,  2  Allen,  173 


Cr. 


24^ 


Homicide,  313. 

Indictment,  333  ;  Verdict,  640. 

Sentence,  557. 

Larceny,  395. 

Continuance,  112. 

Libel,  433. 

Homicide,  264,  280. 

Spirituous  liquors,  sale  of,  568. 

Pardon,  494. 

New  trial,  446. 

Outlawry,  493. 

Trespass,  589. 

Forgery  and  counterfg,  215,  231. 

Fugitives  from  justice,  234,  235. 

Indictment,  337. 

Arson,  28,  29  ;  Indictment,  327. 

Nuisance,  473. 

Summary  conviction,  583. 

Consjiiracy,  108. 

False  pretenses,  187. 

Evidence,  154. 

Evi.  146,  167;  Homicide,  305. 

Libel,  423. 

Arson,  26. 

Misdem'r,  437 ;  Nuis.  475,  477. 

Bail  and  recognizance,  68. 

Nuisance,  468. 

Spirituous  liquors,  sale  of,  569. 

Writ  of  error,  662. 

Dueling,  117. 

Nuisance,  479. 

Indictment,  344  ;  Spirituous  liq- 
uors, sale  of,  571. 

Statutes,  582. 

Evidence,  139. 

Evidence,  136. 

Arrest,  33. 

Perjury,  498,  499,512. 

Larceny,  387,  392. 

False  pretenses,  174. 

Intoxicat'n  as  an  excuse'for  crime,. 
360;  Trial,  613;  Verdict,  640. 

Lasciviousness,  418. 

Larceny,   394. 

Indictment,  346. 

Idiocy,  324. 

Nuisance,  476  ;  Witness,  647. 

Spirituous  liquors,  sale  of,  573. 

Forgery  and  counterfeiting,  304. 

Evi.  133;    Homicide,  268,  282. 


688 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Hershell,  Thach.  Crim.  Cas.  70 
Com.  V.  Herty,  109  Mass.  348 ;  1  Green's  Cr.  Reps.  194. 
Com.  V.  Hicks,  7  Allen,  573    .... 
Com.  V.  Hill,  11  Mass.  136 

"      4  Allen,  591        . 
"  "      14  Mass.  207  ..  . 

"  "      14  Gray,  24       . 

"      11  Cush.  137  ..  . 

Com.  V.  Hilliard,  2  Gray,  294  ... 

Com.  V.  Hills,  10  Cusb.  530 


Cora. 
Com. 
Com. 
Com. 
Com. 
Com. 

Com 
Com, 
Com, 
Com. 
Com 


Com. 
Com. 
Com. 

u 

Com, 


V.  Hinds,  101  Mass.  209 

V.  Hines,  101  Mass.  33  . 

V.  Holden,  9  Gray,  7 

V.  Holland,  1   Duvall,  Ky.  183 

V.  Holliston,  107  Mass.  333 

V.  Holmes,  103  Mass.  440 

"         17  Mass.  336      . 
V.  Homer,  5  Mete.  555  . 
V.  Hooper,  Tliach.  Crim.  Cas.  400 
V.  Hope,  22  Pick.  1 
V.  Hopkins,  2  Dana,  418 
V.  Horton,  3  Gray,  354 

"         2  Gray,  69 

"         9  Pick.  206 
V.  Houghton,  8  Mass,  107 
V.  Howard,  3  Mete.  Ky.  407 
V.  Howe,  9  Gray,  110 

"       3  Allen,  153   . 
V.  Hoxey,  16  Mass.  385 


Com. 

V. 

Hoye,  11  Gray,  463  . 

Com. 

V. 

Hudson,  97  Mass.  565 

11   Gray.    64             .             .             . 

Com. 

V. 

Huflfey,  6  Barr,  348           . 

Com. 

V. 

Hughes,  5  Rand.  655 

5  Allen,  499       . 

Com. 

V. 

Hulbert,  12  Mete.  446            ..             . 

Com. 

V. 

Humphries,  1  Mass.  242  . 

Com. 

V. 

Hunt,  4  Pick.  252     .... 

u 

Thach.  Crim.  Cas.  809      . 
"       4  Mete.  Ill     . 

u 

"       4  Gray,  421            ..             . 
"       4  Cush.  49       . 

Com. 

V 

Hurley,  99  Mass.  433       . 
14  Gray,  411 

l( 

7  Mete.  463         . 

Com 

V 

Hussey,  111  Mass.  433           . 
13  Mass.  331       . 

Com. 

V. 

Hutchinson,  1  Mass.  7          .             .             . 

False  pretenses,  189. 

Homicide,  304. 

Nuisance,  484. 

Forgery  and  counterfeiting,  198. 

Jury,  369. 

Larceny,  386  ;  Trial,  593. 

Lasciviousness,  418. 

Receiving  stolen  property,  535; 
Witness,  652. 

Homicide,  298. 

Larceny,  397 ;  Receiving  stolen 
property,  558  ;  Witness,  658. 

Forgery  and  counterfeiting,  309. 

Indictment,  329. 

Larceny,  385. 

Robbery.  545. 

Evidence,  133. 

Abortion,  7;  Nolle  prosequi,  467. 

Libel,  425 ;  Obscene  pub.  487. 

Escape,  124. 

Dueling,  117. 

Larceny,  380,  397 ;    Sentence,   557. 

Gaming,  246. 

Adultery,  16. 

Lottery,  428. 

Sentence,  561. 

Forgery  and  counterfeiting,  305. 

Concealed  weapons,  101. 

Evidence,  143. 

Evidence,  146,  148. 

Indictment,  346;  Religious  meet- 
ing, disturbance  of,  540. 

Indictment,  341. 

Arson,  30. 

Witness,  658. 

Bail  and  recognizance,  66. 

New  trial,  446. 

Perjury,  511. 

False  pretenses,  182. 

Robbery,  547. 

Assault  and  battery,  41 ;  Rape,  539. 

Conspiracy,  103,  109. 

Conspiracy,  101,  105,  107. 

Evidence,  168. 

Lasciviousness,  417. 

Assault  and  battery,  35. 

Evidence,  155. 

False  pretenses,  188. 

Embezziemenl,  118;  Larceny,  414. 

New  trial,  444. 

Forg.  &  coun.   314 ;  Witness,  648. 


TABLE   OF   CASES. 


689 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Huttbn.  5  Gray,  89 

Core.  V.  Hyde,  Thach.  Crim.  Cas.  19 

Com.  V.  Ingrabam,  7  Gray,  4G 

Com.  V.  Inhabs.  of  Deerfield,  6  Allen,  449    . 

Com.  V.  Inhabs.  of  North  Brookfield,  8  Pick.  46 

Com.  V.  Inhabs.  of  Stockbridge,  11  Mass.  279 

Com.  V.  Inhubs.  of  Taunton,  10  Gray,  228    . 

Com.  V.  Irwin,  1  Allen,  587 

Com.  V.  Isa&cks,  5  Rand.  634 

Com.  V.  Jackson,  15  Gray,  187     . 

2  Va.  Cas.  50 1 
Com.  V.  Jailer,  7  Watts,  366 
Com.  V.  James,  1  Pick.  375    . 
"  "       99  Mass.  438 

Com.  V.  Jeffries,  7  Allen,  548 
Com.  V.  Jenkins,  10  Gray,  485     . 

"  "         Thach.  Crim.  Cas.  118     . 

Com.  V.  Johns,  6  Gray,  274  . 
Com.  V.  Johnson,  3  Cush.  454 

"  "         26  Iowa,  407 

"  "         Thach.   Crim.  Cas.  284 

Com.  V.  Jones,  2  Dev.  &  Batt.  544     . 

"  "        2  Gratt.  555 

Com.  V.  Kane,  108  Mass.  423 
Com.  V.  Keeper  of  Prison,  2  Ashm.  227  . 

"  "        1  Ashm.  140 

Com.  V.  Keger,  1  Duvall,  Ky.  249 
Com.  V.  Keith,  8  Mete.  531    . 
Com.  V.  Kelcher,  3  Mete.  Ky.  484 
Com.  V.  Kelly,  10  Cush.  69     . 
Com.  V.  Kendall,  113  Mass.  210    . 
Com.  V.  Kenney,  12  Mete.  235 
Com.  V.  Kent,  6  Mete.  221 
Com.  V.  Keyes,  11  Gray,  323 
Cora.  V.  Kidder,  107  Mass.  188     . 
Com.  V.  Killiun,    109   3Iass.   345;    1    Green's 
Reps.  192        , 

Cora.  V.  Kiml)all,  7  Gray,  328 

108  Mass.  473    . 

"  "         21  Pick.  373 

"  "         23  Pick.  366      . 

Com.  V.  King,  9  Cush.  284       . 

Com.  V.  Kingsbury,  5  Mass.  106   . 
Com.  V.  Kinison,  4  Mass.  640 
Com.  V.  Kinney,  2  Va.  Cas.  139    . 
Com.  V.  Kirby,  2  Cush.  577  . 

44 


Complaint,  99. 

Gaming,  241. 

Evidence,  138,  170. 

Nuisance,  473. 

Nuisance,  477. 

Indictment,  347. 

Nuisance,  485. 

Officer,  488. 

Adultery,  12. 

Abortion,  5. 

Former  acquittal  or  conviction,  227„ 

Trial,  593. 

Evid.  130,  148 ;  Larceny,  372,  374, 

Homicide.  312. 

Ev.  132,  140;  False   pre.  186,  188. 

Evidence,  170;  Receiving  stolen 
property,  586. 

N«w  trial,  452,  460. 

Perjury,  506,  507,  509. 

Bail  and  recognizance,  69. 

Forgery  and  counterfeiting,  203. 

Indictment,  327. 

Larceny,  376. 

Lasciviousness,  417. 

Assault  and  battery,  44. 

Bail  and  recognizance,  61 ;  Homi- 
cide, 257,  261. 

Forcible  entry  and  detainer,  190, 

Indictment,  328. 

Witness,  052. 

Indictment,  331. 

Spirituous  liquors,  sale  of,  573. 

Assault  and  battery,  45. 

Evidence,  153;  Larceny,  410. 

Forg.  and  counterfeiting,  201,  218. 

Evidence,  136. 

Nuisance,  468. 

Malicious  trespass,  435 ;  Railroad 
train,  unlawfully  stopping,  518. 

Nolle  prosequi,  406  ;  Nuis.  478,  48X\ 

Perjury,  510. 

Sentence,  556,  561. 

Witness,  656. 

Embezzlement.  119;  Larceny,  399; 
Receiving  stolen  property,  536. 

Conspir.   104 ;  Misdemeanor,   438. 

Forgery  or  counterfeiting,  216. 

Former  acquittal  or  conv.  230. 

Assault  and  battery,  40,  41. 


090 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Knapp,  10  Pick.  477 

"  "       9  Pick.  490        .... 

Com.  V.  Knetlancl,  20  Pick.  206 

"  "  Thach.  Crim.  Cas.  346     . 

Com.  V.  Knight,  12  Mass  274 
Com.  V.  Lafferty.  6  Gratt.  072 
CoJTi.  V.  Laliey,  14  Gray,  91 

Com.  V.  Lahy,  8  Gray,  459      .... 
Com.  v.  Lakeman,  4  Gush.  597     . 

5  Gray,  82  .  .  . 

Com.  V.  Lamb,  1  Gray,  493 
Com.  v.  Lambert,  12  Allen.  177  .  . 

Com.  V.  Lancaster,  Thach.  Crim.  Cas.  428 
Com.  V.  Lane,  113  Mass.  458 
Com.  V.  Lang,  10  Gray,  11 
Com.  V.  Lannan,  13  Allen,  563 
Com.  V.  Lavery,  101  Mass.  207     . 
Com.  V.  Lawless,  101  Mass.  32  .  .  . 

"  "         103  Mass.  425 

Com.  V.  Lawrence,  9  Gray,  133 
Com.  V.  Leaths,  1  Va.  Cas.  151    . 
Com.  V.  Leavitt,  12  Allen,  179 
Com.  V.  Leddy,  105  Mass.  381      . 
Com.  V.  Lee,  107  Mass.  207      . 
Com.  V.  Lesher,  17  Serg.  &  Rawle,  155     . 
Com.  V.  Lewis,  1  Me1:c.  151    .... 
Com.  V.  Libby,  11  Mete.  64  .  .  . 

Com.  V.  Lincoln,  110  Mass.  410 

"  "         11  Allen,  233     . 

Com.  V.  Lindsay,  11  Cush.  415,  note 
Com.  v.  Linton,  2  Va.  Cas.  476     . 

"  "2  Va.  Cas.  205 

Com.  V.  Litton,  6  Gratt.  091 
Com.  V.  Livermore,  4  Gray,  18 

Com.v.Lockwocd,109Mass.323;  1  Green's  Cr.  Rcp.168, 
Com.  V.  Lodge,  2  Gratt.  579 

Com.  V.  Long,  2  Va.  Cas.   318  ..  . 

Com.  V.  Loud,  3  Mete.  328  .      '       . 

Com.  V.  Low,  Thach.  Crim.  Cas.  477 

"  "       3  Pick.  408 

Com.  V.  Lucas,  2  Allen,  170    .... 
Com.  V.  Luckis,  99  Mass.  431 
Com.  V.  Lufkin,  7  Allen,  579 
Com.  V.  Lynch,  8  Gray,  384 

Com.  V.  Lyon,  4  Dall.  302        .... 
Com.  V.  Macomber,  3  Mass.  254    . 
Com.  V.  Madan,  103  Mass.  1  ... 

Com.  Y.  Madden,  1  Gray,  486       . 
Com.  V.  Maguire,  108  Mass.  469 
Com.  V.  Mahar,  10  Pick.  120         . 


Accessory,  11 ;  Evidence,  141 :  New 

trial,  444 ;  Verdict,  037. 
Evidence,  130. 
Bill  of  exceptions,  81. 
Blasphemy,  83;  Libel,  421. 
Perjury,  502,  504,   507. 
Adultery,  12. 
Adultery.  15. 

Former  acquit,  or  conv.  231. 
Assault  and  battery,  38. 
Receiving  stolen  property,  535. 
Arson,  20;  Indictment,  334. 
Lasciviousness,  420. 
False  pretenses,  170. 
Bigamy,  77. 

Assault  and  battery,  58. 
Witness,  650. 
Larceny,  395,  400. 
Forgery   and  counterfeiting,  212. 
Larceny,  378,  404. 
Evidence,  120. 
Sentence,  557. 
Nuisance,  484. 
Search  warrant,  550. 
Officer,  492. 
Trial,  597. 

Abatement,  1 ;  Indictment,  349. 
Embezzlement,  120. 
Evidence,  168. 
False  pretenses,  183. 
Malicious  mischief,  431. 
Forgery  and  counterfeiting,  201. 
Homicide,  205. 
Perjury,  499. 
Jury,  369. 
Pardon,  493. 
Perjury,  503. 
Abatement,  2. 

Former  acquittal  or  couvic'n,  227. 
Larceny,  377,  381. 
Nuisance,  471. 
Larceny,  405. 
Larceny,  373. 
Animals,  18. 
Sunday,  584. 
Certiorari,  96. 
•Misdemeanor,  438. 
Homicide,  284. 

Spirituous  liquors,  sale  of,  575. 
Receiving  stolen  property,  535. 
Indictment,  350. 


TABLE   OF   CASES. 


691 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com. 
Cora, 

Com. 
Com. 
Com. 
Com. 
Com. 
Com. 


Com. 
Com. 
Com. 
Com. 
Com. 
Com. 

Com. 
Com. 
Com. 
Com. 

u 

Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 


V.  Mauley,  12  Pick.  173 
V.  Mann,  116  Mass.  58 

"      4  Gray,  213     . 
V.  Mansou,  2  Ashra.  131 
V.  Marks,  101  Mass.  31 
V.  Marshall,  15  Gray,  202     . 
V.  Martin,  17  Mass.  359 
V.  Mash,  7  Mete.  472 
V.  Mason,  3  A.  K.  Marsh.  456 
"       2  Ashm.  31 
"       105  Mass.  163 
"       12  Allen,  185 
V.  McAfee,  108  Mass.  458 
V.  McAtee,  8  Dana,  28 
V.  McAvoy,  16  Gray,  235 
V.  McCann,  97  Allen,  580     . 
V.  McCaughey,  9  Gray,  296 
V.  McChord,  2  Dana,  242     . 


V.  McClanahan,  2  Mete.  Ky.  8  . 
V.  McClellan,  101  Mass.  34 
V.  McCuUock,  15  Mass.  227 
V.  McDonald,  5  Cush.  365 

"  110  Mass.  405  ;  2  Green's  Cr. 

V.  McDowell,  1  Brown,  359 
V.  McGahey,  11  Gray,   194         . 
V.  McGeorge,  9  B.  Mon.  3     . 
V.  McGinnis,  2  Whart.  117 
V.  McGuire,  1  Va.  Cas.  119 
V.  McKee,  1  Gray,  61      . 
V.  McKinney,  9  Gray,  114    . 
V.  McLaughlin,  12  Cush.  615     . 


Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Cora. 
Com. 
Com. 


Cora. 
Com. 
Com. 


"  5  Allen,  507 

"  105  Mass.  480    . 

V.  McLoon,  5  Gray,  91         . 
V.  McNamec,  112  Mas^  285 
V.  McPike,  3  Cush.  181        . 
V.  McShane,  110  Mass.  502;  2  Green's  Cr.  R 
V.  Mead,  12  Gray,  167    . 
V.  Mehan,  11  Gray,  321 
V.  Merriara,  14  Pick.  418 
V.  Merrifield,  4  Mete.  468      . 
V.  Merrill,  Thach.  Cr.  Cas.  1      . 

"      8  Cush.  571 

"     8  Allen,  545 

"      14  Gray,  415 
V.  Messinger,  4  Mass.  40 2 
V.  Millard,  1  Mass.  6 
V.  Miller,  3  Cush.  243     . 
"         5  Dana,  320 


Larceny,  392. 

Assault  and  battery,  45. 

Nuisance,  483. 

Indictment,  340;  New  trial,  448. 
.      Trial,  608. 

Arson,  31. 

Robbery,  547. 

Bigamy,  78. 

Bail  and  recognizance,  66. 

Conspiracy,  107. 

Embezzlement,  118;  Larceny,  381. 

Sunday,  584. 
.      Homicide,  306,  312. 

Misdemeanor,  438. 

Malicious  mischief,  432. 

Arson,  30. 

Spirituous  liquors,  sale  of,  572. 

Former    acquittal   or   conviction, 
225;  Indictment,  340, 

Indictment,  344, 

Animals,  18. 

Barretry,  71 ;  Malicious  pros.  434, 

Larceny,  395. 
R.  267  Rape,  523,  527. 

Larceny,  389. 
.      Officer,  488. 

Spirituous  liquors,  sale  of,  567, 

Certiorari,  96. 

Gaming,  242. 

Assault  and  battery,  44. 

Larceny,  414. 

Arrest,  21 ;  Assault  and  battery, 
57 ;  Indict.  340 ;  Homi.  309. 

Assault  and  battery,  47. 

Malicious  mischief,  482. 

Complaint,  99. 

Common  drunkard,  99. 

Homicide,  264,  292,  314. 
279  Former  acquittal  or  convic.  230. 
.      Homicide,  298,  312;  Witness,  653. 

Verdict,  637. 
.      Adultery,  16. 

Embezzlement,  121. 
.      Burglary,  93 ;  Witness,  648. 

False  pretenses,  176,  185. 

Forraer  acquittal  or  convic.  231. 

New  tr.  464;  Rape, 530;  Trial,  614. 

Appeal,  19. 

Continuance,  112. 

Forgery  and  counterfeiting,  221, 

Former  acquittal  or  convic.  229, 


692 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V. 


Com.  V. 
Com.  V. 
Com.  V. 
Com.  V. 
Com.  V. 


Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 
Com. 

u 

Com. 
Com. 

a 

Com. 
Com. 
Com. 
Com. 


Com. 
Com. 
Com. 
Com. 
Com. 


Mitchell,  3  Bush,  25 

1  Va.  Cas.  116 

"         3  Wheeler's  Crim.  Cas.  471 
Monahan,  9  Gray,  119     . 
Montgomery,  11  Mctc.  534    . 
Mooar,  Thach.  Crim.  Cas.  410    , 
Mooney,  110  Mass.  99 
Moore,  3  Pick.  194 

"      2  Dana,  402  , 

"      11  Cush.  600 

"      9  Mass.  402    . 
Moorehonse,  1  Gray,  470 
Moran,  107  Mass.  239 
Morey,  1  Gray,  461 
Morgan,  107  Mass.  199 
Morihan,  4  Allen,  585 
Morler,  4  Barr,  264    . 
Morrell,  99  Mass.  542 
Morris,  1  Cush.  3'Jl    . 

"     1  Va.  Cas.  176     . 
Morrison,  16  Gray,  224 
Morse,  2  Mass.  138 

14  Mass.  217    . 
Mortimer,  2  Va.  Cas.  325 
Moseley,  2  Va.  Cas.  154 
Mosler,  4  Barr,  264 
Moulton,  4  Gray,  39 

"         10  Cush.  404    . 

"         9  Mass.  30  . 
Mowry,  11  Allen,  20 
Mullen,  97  Mass.  545 
Mullins,  2  Allen,  295 
Munsey,  112  Mass.  287 
Murphy,  4  Allen,  491 

"         11  Cush.  472 


"  "         2  Gray,  510 

"         12  Allen,  449 
Com.  V.  Murray,  2  Ashm.  41 
Com.  V.  Murtagh,  1  Ashm.  272 
Com.  V.  Mycall,  2  Mass.  136 
Com.  V.  Myers,  1  Va.  Cas.  188 
Com,  V.  Nason,  9  Gray,  125 
Com.  V.  Newell,  7  Mass.  247  . 

Com.  V.  Nichols,  10  Mete.  259 
"  "        10  Allen,  199 

Com.  V.  Nickerson,  5  Allen,  518 
Com.  V.  Norcross,  9  Mass.  492 
Com.  V.  Norton,  11  Allen,  110 
"11  Allen,  266 


Extortion,  171. 
Homicide,  305. 
Homicide,  307. 
Perjury,  511. 
Larceny,  407. 
False  pretenses,  187. 
Evidence,  163. 
Bastardy,  75. 
'Gaming,  244. 
Nuisance,  477. 
Trial,  592. 

Spirituous  liquors,  sale  of,  571. 
Arrest,  22. 
Evidence,  14.o. 
Libel,  423, 424. 
Escape,  124;  Officer,  489. 
Homicide,  272. 
Evidence,  135;  Trial,  607. 
Adultery,  16. 
Libel,  424. 
Abortion,  5. 
False  pretenses,  174. 
Larceny,  392,  394. 
Former  acquittal  or  convic.  226. 
Larceny,  390,  392. 
Evidence,  142;  Homicide,  255. 
Evidence,  166. 

Spirituous  liquors,  sale  of,  570. 
Witness,  648. 
Robbery,  547. 
Witness,  656. 
Witness,  647. 
Evidence,  156. 
Assault  and  battery,  45. 
Former  acquittal  or  convic.  223; 

Homicide,  269, 
Spirituous  liquors,  sale  of  575. 
Threaten,  to  accuse  of  crime,  585. 
Homi.  257,  295,  297 ;  New  tr.  459. 
Bigamy,  80. 

Forgery  and  counterfeiting,  209. 
Former  acquittal  or  convic.  231. 
False  pretenses,  182. 
Burglary,   85,  88 ;  Mayhem,   436 ; 

Verdict,  638. 
Spirituous  liquors,  sale  of,  572. 
Unwholesome  pro.  sale  of,  631,632. 
Assault  and  battery,  34,  35. 
Adultery,  14. 
Embezzlement,  121. 
False  pretenses,  174. 


TABLE   OF   CASES. 


693 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Oaks,  113  Mass.  8 
Com.  V.  Ober,  13  Cush.  493     . 
Com.  V.  O'Brien,  107  Mass.  208    ' . 
"  "       12  Allen,  183 

"  "      13  Cush.  84 

Com.  V.  O'Conuell,  13  Allen,  451 
Com.  V.  O'Connor,  107  Mass.  319 

"  "  7  Allen,  583 

Com.  V.  O'Hara,  10  Gray,  469 
Com.  Y.  Old  Colony,  &c.  R.  R.  Co.  14  Gray,  93 
Com.  V.  O'Malley,  97  Mass.  584    . 
Com.  V.  O'Neill,  6  Gray,  343 
Com.  V.  Ordway,  13  Cush.  270      . 
Com.  V.  Otis,  16  Mass.  198      . 
Com.  V.  Parker,  9  Mete.  363 

"      Thach.  Crim.  Cas.  134 

"  '•      2  Pick.  550 

"  '      4  Allen,  313 

"  "      3  Cush.  312 

Com.  V.  Parmenter,  101  Mass.  311 
5  Pick.  279    . 
Com.  V.  Paulus,  11  Gray,  305. 
Com.  V.  Pease,  16  Mass.  91 
Com.  V.  Peck,  1  Mete.  438      . 
Com.  V.  Peckham,  3  Gray,  514     . 
Com.  V.  Pemberton,  llS  Mass.  36 
Com.  agst.  Pennoek,  3  Serg.  &  Rawle,  199 
Com.  V.  Pennsylvania  Canal  Co.  66  Penn.  St 
Com.  V.  Pereival,  Thach.  Crim.  Cas.  393. 
Com.  V.  Perdue  and  Dillon,  3  Va.  Cas.  337 
Com.  V.  Perkins,  1  Pick.  388 
Com.  V.  Perris,  108  Mass.  1     . 
Com.  V.  Peters,  13  Mete.  387 
Com.  V.  Phelps,  11  Gray,  73  . 
Com.  V.  Phillips,  16  Mass.  433     . 

Com.  V.  Pickering,  8  Gratt.  638 
Com.  V.  Pierce,  11  Gray,  447 
Com.  V.  Pintard,  1  Browne,  59 
Com.  V.  Poilard,  13  Mete.  335 
Com.  V.  Pomeroy,  117  Mass.  143 
Com.  V.  Pope,  3  Dana,  418 

"  "       103  Mass.  440  . 

"  "        13  Cush.  372 

Com.  V.  Porter,  1  A.  K.  Marsh.  44 
Com.  V.  Posey,  4  Call,  109 
Com.  V.  Price,  10  Gray,  473    . 


41 


Com.  V.  Prius,  9  Gray,  137 
Com.  V.  Profit,  4  Binn.  428 


Nuisance,  468. 

Peddlers,  496. 

Assault  and  battery,  40. 

Burglary,  91;  Evidence,  159. 

Conspiracy,  104;  Threatening  to 
accuse  of  crime,  585. 

Larceny,  387,  389,  391. 

Adultery,  14. 

Concealed  weapons,  101. 

Larceny,  393. 

Statutes,  583. 

Embezzlement,  120. 

Jury,  369. 

Assault  and  battery,  33. 

Bail  and  recognizance,  59. 

Abortion,  3. 

False  pretenses,  175. 

Grand  jury,  247. 

Lasciviousness,  417. 

Perjury,  497. 

Burglary,  93. 

Forg.  and  eountfg,314,  317,  330. 

Larceny,  390. 

Extortion,  171. 

New  trial,  442 ;  Witness,  648. 

Spirituous  liquors,  sale  of,  573. 

Homicide,  374. 

Burglary,  89. 

Statutes,  580. 

Forgery  and  counterf  g  197,  319. 

Affray,  18. 

Indictment,  331. 

Burglary,  90. 

Former  acquittal  or  convie.  337. 

Evidence,  135. 

Accessory,  10;  Bail  and  recogni- 
zance, 63. 

Perjury,  503. 

Adultery,  15. 

Bastardy,  73. 

Perjury,  496,  507,  508,  511. 

Insanity,  357. 

Dueling,  117. 

Evidence,  155. 

Nuisance,  481. 

Bail  and  recognizance,  63, 

Arson,  37. 

Evidence,  159  ;  Forgery  and  coun- 
terf'g,  314,  331;  Witness,  656. 

Conspiracy,  106. 

Certiorari,  96. 


694 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com. 

V. 

Com. 

(1 

V. 

Com. 

V. 

Com. 

V. 

Com. 

V. 

Com. 

V. 

Com. 

V. 

Com. 

V. 

Com. 

V. 

Com. 

V. 

Com. 

V. 

Com. 

V. 

Com. 

V. 

Com 

V. 

Com. 

V. 

Com 

V 

Com 

V. 

Com 

V. 

Propr's  of  New  Bedford  Bridge,  2  Gray,  339. 
Putnam,  1  Pick.  130 

"  29  Penn.  St.  296 

4  Gray,  16 
Quann,  2  Va.  Cas.  89 
Quin,  5  Gray,  478 
Rand,  7  Mete.  475     . 
Randall,  4  Gray,  36 
Ray,  3  Gray,  441 
Read,  Thach.  Crim.  Cas.  18( 
Reardon,  6  Cusli.  78  . 

"  4  Gray,  420       . 

Regan,  105  Mass.  593 
Remby,  2  Gray,  508 
Reynolds,  14  Gray,  87 
Rich,  14  Gray,  335 
Ricketson,  5  Mete.  412 
Ridgeway,  2  Ashm.  247  . 
Riggs,  14  Gray,  376 
Rigney,  4  Allen,  316 
Riley,  Thach.  Cr.  Cas.  67 

"  "  "         "        "  471 

Com.  V.  Roach,  108  Mass.  289 
Com.  V.  Roberts,  108  Mass.  296    . 
Com.  T.  Robinson,  Thach.  Cr.  Cas.  230 

"  "1  Gray,  555 

Com.  V.  Roby,  12  Pick.  49G     . 


"  "         12  Pick.  508 

Com.  V.  Rodes,  1  Dana,  595    . 
Com.  V.  Rogers,  1  Serg.  &  Rawle,  124     . 
Com.  V.  Roland,  97  Mass.  598 
Com.  V.  Rourke,  10  Cush.  397     . 
Com.  V.  Rowe,  105  Mass.  590  . 
Com.  V.  Ruggles,  6  Allen,  588      . 

^'  10  Mass.  391 

Com.  V.  Rumford  Chemical  Works,  16  Gray,  231. 
Com.  V.  Rumrill,  1  Gray,  388 
Com.  V.  Runnels,  10  Mass.  518 
Com.  V.  Rush,  14  Penn.  St.  186    . 
Com.  V.  Ryan,  5  Mass.  90         . 
Com.  V.  Sackett,  22  Pick.  394      . 
Com.  V.  Samuel,  2  Pick.  103  . 
Com.  V.  Sanford,  12  Gray,  174      . 
Com.  V.  Savory,  10  Cush.  535 
Com.  V.  Sawtelle,  11  Cush.  142    . 
Cora.  V.  Scannel,  11  Cush.  547 
Com.  v.  Scholes,  13  Allen,  554 
Com.  V.  Sharpless,  2  Serg.  &  Rawle,  91 


Corporation,  114. 

Bigamy,  77. 

Conspiracy,  102. 

Spirituous  liquors,  sale  of,  575. 

Former  acquittal  or  convic.  226. 

Complaint,  99. 

Larceny,  386. 

Assault  and  battery,  36,  41. 

Forgery  and  counterfg,  201,  212. 

Evidence,  135. 

Adultery,  12,  13,  14. 

Rape,  527. 

Rape,  525. 

Spirituous  liq.  sale  of,  572,  573. 

Public  justice,  obstruction  of,  518, 

Witness,  653. 

Trial,  627. 

Consp'cy,  102;    Larceny,  400,  404. 

Indictment,  331. 

Assault  and  battery,  35. 

Forgery  and   counterfeiting,  215 ; 

Indictment,  336. 
Homicide,  305. 
Assault  and  battery,  55. 
Homicide,  294,  312,  313. 

Evidence,  151  ;  Larceny,  380. 

Evi.  138 ;  Trial,  608 ;  Witness,  651. 

Former  acquittal  or  conviction, 
223,224,227,  230;  New  trial, 
452,  455 ;  Trial,  627. 

Misdemeanor,  440. 

Information,  354. 

Forcible  entry  and  detainer,  194. 

Indictment,  351. 

Larceny,  384. 

Evidence,  137. 

Assault  and  battery,  36. 

Nuisance,  474. 

Nuisance,  479. 

Spirituous  liquors,  sale  of,  575, 

Riot,  542,  543. 

Nuisance,  472. 

Jury,  369. 

Evidence,  151;  Witness,  658. 

Peddlers,  496. 

Homicide,  311. 

Receiving  stolen  property,  539. 

Larceny,  389,  391,  414. 

Rape,  520,  521. 

Indictment,  327. 

Obscene  publications,  487. 


TABLE   OF   CASES. 


695 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Shaver,  3  Watts  &  Scrg.  338 
Com.  V.  Sliiiw,  4  Allen,  308 

4  Cush.  594     . 
Com.  V.  Shearman,  11  Cusli.  546  . 
Com.  V.  Shedd,  7  Cusli.  514 
Com.  V.  Shepard,  1  Allen,  575 
Com.  V.  Shepherd,  6  Binn.  283 
Com.  V.  Sheriff,  16  Serg.  &  Rawle;  304 
Com.  V.  Sherman,  105  Mass.  169 
Cora.  V.  Sholes,  13  Allen,  554 
Com.  V.  Shouse,  16  B.  Mon.  325 
Com.  T.  Silsbee,  9  Mas';.  417 
Com.  V.  Sinionds,  11  Gray,  306 
Com.  V.  Simpson,  9  Mete.  138 
Com.  V.  Skeggs,  3  Bush,  19    . 
Com.  V.  Skelley,  10  Gray,  464      . 
Com.  V.  Slack,  19  Pick.  304   . 
Com.  V.  Slate,  11  Gray,  60 
Com.  V.  Sloan,  4  Cush.  52 
Com.  V.  Smart,  6  Gray,  15 
Com.  V.  Smith,  7  Pick.  137    . 

"        6  Serg.  &  Rawle,  568 
"  "9  Mass.  107  . 

"  "        111  Mass.  429       . 

"  "        1  Mass.  245    . 

"  "6  Cush.  80 

"  "11  Allen,  243 

"  "        3  Va.  Cas.  327      . 

"  "        2  Gray,  516    . 

Com.  V.  Smyth  11  Cush.  473 

14  Gray,  33     . 
Com.  V.  Snell,  3  Mass.  82 
Com.  V.  Snelling,  15  Pick.  337 

15  Pick.  321     . 
Com.  V.  Snow,  116  Mass.  47    . 

"  "      111  Mass.  411 

Com.  V.  Soule,  2  Mete.  21        . 
Com.  V.  Sowle,  9  Gray,  301 
Com.  V.  Sparks,  7  Allen,  534    . 
Com.  V.  Squire,  1  Mete.  258 
Com.  V.  Squires,  97  Mass.  59  . 
Cora.  V.  Stafford,  12  Cush.  019     . 
Com.  V.  Stahl,  7  Allen,  304     . 
Com.  V.  Stangford,  112  Mass.  283 
Com.  V.  Starkweather,  10  Cush.  59     . 
Com.  V.  Starr,  4  Allen,  301 
Com.  V.  Stearns,  2  Mete.  343 
"  10  Mete.  256 

Com.  V.  Stebbius,  8  Gray,  492 


Bribery,  85. 

Larceny,  384. 

Witness,  656. 

Spirituous  liquors,  sale  of,  573. 

Conspiracy,  105. 

Embezzlement,  120,  123. 

Bastardy,  74. 

Accessory,  10. 

Larceny,  396. 

Abortion,  5  ;  Trial,  604. 

Voting,  645, 

Voting,  643. 

Forgery  and  counterfeiting,  206. 

Larceny,  398,  399. 

Verdict,  642. 

Nuisance,  477. 

Disinterring  the  dead,  115. 

Receiving  stolen  property,  535,537. 

Spirituous  liquors,  sale  of,  567,569. 

Embezzlement,  121. 

Forgery  and  counterfeiting,  200. 

Forgery  and  counterfeit.  215,  216. 

Grand  jury,  246 ;  Indictment,  326> 
350. 

Larceny,  380. 

Larceny,  395. 

Nuisance,  468,  479,  481. 

Subornation  of  perjury,  514;  Wit- 
ness, 654. 

Verdict,  638. 

Witness,  658. 

Homicide,  269. 

Nuisance,  476. 

Forgery  and  counterfeiting,  212. 

Libel,  421,  424. 

New  trial,  450;  Trial,  591. 

Abortion,  5. 

Evidence,  141;  Sodomy,  565. 

Malicious  mischief,  432. 

Malicious  mischief,  431. 

Adultery,  15. 

Arson,  27;  Indictment,  338. 

Adultery,  16;  Rape,  520. 

Ploniicide,  208. 

Gaming,  242. 

False  pretenses,  181. 

Evidence,  167. 

Forgery  and  counterfeiting,  218. 

Erabezzlemont,  lS-0. 

Forgery  and  counterfeit.  206,  214. 

Larceny,  381,  395,  403. 


C96 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Stedman,  12  Mete.  444     . 
Com.  V.  Srcplienson,  3  Mete.  Ky.  226 
8  Pick.  354 
"  11  Cush.  481       . 

Com.  V.  Stevens,  1  Mass.  203 
Com.  V.  Stewart,  1  Serg.  &  Rawle,  342 
Com.  V.  Stoddard,  9  Allen,  280     . 
Com.  V.  Stone,  4  Mete.  43        . 
"       3  Gray,  453 
"  "       Thaeh.  Crim.  Cas.  604 

Com.  V.  Stout,  7  Monr.  247  . 

Com.  V.  Stowell,  9  Mete.  572 
Com.  V.  Strain,  10  Mete.  521         . 
Com.  V.  Strupney,  105  Mass.  £88 
Com.  V.  Sturtivant,  117  Mass.  122 
Com.  V.  Snglaud,  4  Gray,  7      . 
Com.  Y.  Sullivan,  14  Gray,  97        . 
"         104  Mass.  552 
"  "        6  Gray,  477       . 

"        5  Allen,  511 
Com.  V.  Sutherland,  109  Mass.  342  ;  1   Green's  Crim 
Reps.  189 

Com.  V.  Sweney,  10  Serg.  &  Rawle,  173  . 
Com.  V.  Swinney,  1  Va.  Cas.  146,  l.^O,  151,  note 
Com.  V.  Sylvester,  13  Allen,  247 
Com.  V.  Symonds,  2  Mass.  163 
Com.  v.  Talbot,  2  Allen,  161 
Com.  V.  Tarbox,  1  Cush.  66     . 
Com.  V.  Tarr,  4  Allen,  3J5 
Com.  v.  Taylor,  5  Cush.  605 

"  "        14  Gray,  26 

"  "2  Binn.  277  . 

Com.  V.  Temple,  14  Gray,  60 
Com.  V.  Tenney,  97  Mass.  50         . 


Com.  V.  Thaeher,  97  Mass.  533 
Com.  v.  Thayer,  8  Mete.  525 
Com.  V.  Thomas,  10  Gray,  483 

1  Va.  Cas.  307 
Com.  V.  Thompson,  108  Mass.  461 

"  6  Allen,  591;  11  lb.  23 

"  99  Mass.  444 

"•  "  116  IMass.  346 

"•  •'  3  Litt.  284 

"  '•  9  Gray,  108 

"  '•  Thach.  Cr.  Cas.  28 

""  "  Thach.  Cr.  Cas.  312 


Nolle  prosequi,  466. 

Bribery,  85  ;  Voting,  645. 

Burglary,  86. 

Forgery  and  counterfeiting,  199. 

Forgery  and  counterfeit.  203,  205. 

Nuisance,  478,  482. 

Assault  and  batt.  40 ;    Indict.  330. 

False  pretenses,  187,  188. 

Indictment,  329. 

Perjury,  511. 

Indictment,  846. 

Gaming,  236  ;  New  trial,  444. 

False  pretenses,  180,  182. 

Burglary,  86. 

Evidence,  131, 163;  Homicide,  270. 

Rape,  521. 

Complaint,  99,  100. 

Larceny,  397,  401. 

Rape,  530. 

Vagrant,  633. 

Former    acquittal    or   conviction, 

226 ;  Larceny,  386. 
Libel,  422. 

False  pretenses,  184. 

License,  426. 

Indictment,  389. 

Forgery  and  counterfeit.  202,  219. 

Obscene  publications,  487. 

Adultery,  15. 

Evidence,  143;  Forgery  and  couu- 
terfoiting,  205. 

Gaming,  236. 

Misdemeanor,  437. 

Nuisance,  473. 

False  pretenses,  176  ;  Forgery  and 
counterfeiting,  215 ;  Former  ac- 
quittal or  conviction,  226. 

Lottery,  427. 

Spirituous  liquors,  sale  of,  567. 

Forgery  and  counterfeiting,  204, 
210;  Larceny,  390. 

Sodomy,  565. 

Abortion,  5. 

Adultery,  12. 

Adultery,  15. 

Assault  and  battery,  41. 

Bail  and  recognizance,  fi8,  71. 

Burglary,  90. 

Evidence,  134. 

Homicide,  310. 


TABLE   OF   CASES. 


697 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Thrasher,  11  Gray,  450 
Com.  V.  Tibbetts,  2  Mass.  536 
Com.  V.  Tiernan,  4  Gratt.  545 
Com.  V.  Tilton,  8  Mete.  232 
Com.  V.  Titus,  1 16  Mass.  42     . 
Com.  V.  Tivnon,  8  Graj',  375 
Com.  V.  Tobin,  108  Mass.  426 
Com.  V.  Tolliver,  8  Gray,  386 
Com.  V.  Tompson,  2  Cush.  551 
Com.  V.  Townsentl,  5  Allen,  216 
Com.  V.  TracY,  5  Mete.  536     . 


Com.  V.  Trimmer,  1  Mass.  476 

Com.  V.  Tryon,  99  Mass.  442 

Com.  V.  Tuck,  20  Pick.  356 

Com.  V.  Tucker,  110  Mass.  403 ;  2  Green's 

Com.  V.  Tuckerraan,  10  Gray,  173 

Com.  V.  Tuey,  8  Cush.  1 

Com.  V.  Turner,  4  Dana,  511 

"  "8  Bush,  1;   1  Green's  Cr. 

Com.  V.  Tuttle,  12  Cush.  505 
Com.  V.  Twitchell,  4  Cush.  75 
Cora.  V.  Unknown,  6  Gray,  489 
Com.  V.  Uprichard,  3  Gray,  434 
Com.  V.  Upton,  6  Gray,  473 
Com.  V,  Vandine,  6  Gratt.  689      . 
Com.  V.  Van  Schaack,  10  Mass.  105 
Com.  V.  Van  Tuyl,  1  Mete.  Ky.   1 
Com.  V.  Varney,  10  Cush.  402 
Com.  V.  Vaughan,  9  Cush.  594     . 
Com.  V.  Vt.  &  Mass.  R.  R  Co.  108  Mass.  7 
Com.  V.  Vt.  &  Mass.  R.  R.  Corp.  4  Gray,  22 
Com.  V.  Wade,  17  Pick.  395  . 


Com.  V,  Waite,  5  Mass.  261 
"  "11  Allen,  264 

Com.  V.  Walden,  3  Cush.  558 
Com.  V.  Walker,  13  Allen,  570 
"  "        108  Mass.  300      . 

Com.  V.  Wallace,  16  Gray,  221 
"  "         108  Mass.  13      . 

"  ''         Thach.  Crim.  Ca.s.  592 

Com.  V.  Walters,  6  Dana,  291 

Com.  V.  Ward,  2  Mass.  397      . 

Com.  V.  Warden,  11  Mete.  406      . 

Com.  V.  Warren,  G  Mass.  72    . 

Com.  V.  Waters,  7  Dina,  29 


Adultery,  15. 

Conspiracy,  105. 

Presentment,  517. 

Gaming,  236. 

Larceny,  379. 

Burglary,  91. 
.      Ass.  and  batt.  37,  44  ;  Officer,  488. 

Assault  and  battery,  43. 

Adultery,  14. 

Trial,  628. 

Evidence,    139;     Fugitives     from 
justice,  234. 

Burglary,  86;  Larceny,  386,  402. 

Nuisance,  476. 

Indictment,  339 ;  Larceny,  397. 
Cr.  R.  266.       Arson,  23. 

Embezzlem't,  118,  123;  Evid.  144. 

Bill  of  exceptions,  82. 

Bastardy,  76. 
Reps.  293.       Malicious  mischief,  430. 

Spirituous  liquors,  sale  of,  577. 

Indictment,  339. 

Complaint,  100. 

Larceny,  385. 

Nuisance,  469. 

Gaming,  241. 

Arson,  23. 

Jurisdiction,  365. 

Indictment,  332;  Libel,  423. 

Evidence,  127. 

Homicide,  311. 

Nuisance,  472. 

Arson,  29 ;  Former  acquittal  or  con- 
viction, 223,  226 ;  Nolle  pros. 
466 ;  Trial,  595. 

New  trial,  459. 

New  trial,  448;  Unwholesome  pro- 
visions, sale  of,  632. 

Malicious  mischief,  429. 

Evidence,  153. 

False  pret.  177,  182;  Indict.  338; 
Jurisdiction,  367. 

Conspiracy,  105. 

False  pretenses,  181. 

Voting,  643. 

Indictment,  327. 

Forgery  and  counterfeiting,  204. 

Perjury,  509. 

False  pretenses,  174  ;  Weights  and 
measures,  647. 

Indictment,  342. 


G98 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Waters,  11  Gray,  81  . 
Com.  V.  Weatherhead,  110  Mass.  175 
Com.  V.  Webb,  6  Rand.  726  . 
Com.  V.  Webster,  5  Cush.  395 


Com.  V.  Welch,  2  Allen,  510  . 
Com.  V.  Weld,  Thacli.  Cr.  Cas.  157 
Com.  V.  Wellington,  7  Allen,  299         . 
Com.  V.  Welsh,  7  Gray,  324 

"  "       4  Gray,  535     . 

"  "       1  Allen,  1  .  .  . 

Com.  V.  West,  1  Dana,  165      . 

Com.  V.  Boston  &  Lowell  R.  R.  Corp.  12  Cush.  254 
Com.  V.  Wetherbee,  101  Mass.  214     . 
Com.  V.  Wheeler,  2  Mass.  172       . 


Com. 
Com. 


Com. 
Com. 

Com. 

Com. 
Com. 
Com. 
Com. 
Com. 
Com. 


Com, 
Com. 


V.  Whitcorab,  107  Mass.  480      . 
V.  White,  110  Mass.  407;  2  Green's  Crim.  Reps 
209 
"       11  Cush.  483 
"       5  Mass.  261     . 
"       10  Mete.  14  .  .  . 

V.  Whiting,  Thach.  Crim.  Cas.  588 
V.  Whitman,  4  Pick.  233      . 
V.  Whitney,  5  Gray,  85 

"         Thach.  Crim.  Cas.  588 
V.  Whittemore,  11  Gray,  201      . 
V.  Wilcox,  1  Cush.  303         . 
V.  Wilde,  5  Gray,  83      . 
V.  Wilgus,  4  Pick.  177  . 

T.  Willard,  22  Pick.  476 
V.  Williams,  105  Mass.  62  . 
"  2  Cush.  582 

"  2  Ashm.  69      . 

7  Gray,  337 
"  9  Mete.  273     . 

"  110  Mass.  401 ;  2  Green's  Cr.  Rep 

265       . 
13  Serg.  &  Rawle,  403 
V.  Williamson,  2  Va.  Cas.  211  . 
V.  Wilson,  2  Cush.  590 
"         1  Graj',  337    . 


"  "         2  Gray,  70  .  .  . 

"  "         11  Cush.  412 

Com.  V.  Wing,  9  Pick.  1  ... 

Com.  V.  Wise,  110  Mass.  181  ;  2  Green's  Cr.  Reps.  204. 
Com.  V.  Wolcott,  10  Cush.  61  .  .  . 

Com.  V.  Wood,  11  Gray,  85  . 

Ill  Mass.  408  ... 


Spirituous  liquors,  sale  of,  577. 

Fishery,  190. 

Nuisance,  469. 

Evi.  133  151,  153;  Homi.  254,255, 

266,   271,  377,  302,  305,  309  ; 

Trial,  594,  598,  608. 
Spirituous  liquors,  sale  of,  572. 
Larceny,  381. 
Cemetery,  95. 

Assault  and  battery,  40,  45. 
Grand  jury,  248. 
Nuisance,  477. 
Bail  and  recognizance,  64. 
Nuisance,  471. 
Innkeeper,  355. 
Former  acquittal  or  convic.  224: 

Nolle  prosequi,  467. 
False  pretenses,  179, 

Assault  and  battery,  32, 45. 

Larceny,  376. 

New  trial,  458. 

Spirituous  liquors,  sale  of,  573. 

Forgery  and  counterfeiting,  196. 

Forgery  and  counterfeiting,  213. 

Common  drunkard,  99. 

Forgery  and  counterfeit'g,  216,222. 

Evidence,  143, 

Spirituous  liquors,  sale  of,  569. 

Larceny,  377. 

False  pretenses,  178. 

Misdemeanor,  437,  438. 

Burglary,  93;  Evi.  137;  Wit.  653. 

Burglary,  90;  Larc.  414;  Trial,591. 

Homicide, 257,397;  New  trial,  459. 

Larceny,  393. 

Larceny,  383. 

Malicious  mischief,  439. 

Nuisance,  471. 

Accessory,  10. 

Burglary,  94. 

Evidence,  161,164;  Homicide,  391 ; 

Witness,  660. 
Forgery  and  counterfeiting.  205. 
Spirituous  liquors,  sale  of,  571. 
Misdemeanor.  437. 
Nuisance,  479. 
Officer,  491. 
Abortion,  3,  5,  6. 
Animals,  19. 


TABLE   OF   CASES. 


ODD 


Title  of  Case  and  Report. 


Subject  and  Page. 


Com.  V.  Wood,  4  Gray,  11 


" 

97  Muss.  225 

Com. 

V. 

Woodbury,  Thach.  Crim.  Cas.  47     . 

Com. 

V. 

Woods,  10  Gray,  477 

Com. 

V 

Woodward,  Thach.  Cr.  Cas.  63 
102  Mass.  155 

Com. 

V. 

Worcester,  3  Pick.  402 

Com. 

V. 

Wormley,  8  Gratt.  713     . 

Com. 

V. 

Wright,  1  Cush.  46     . 

Thach.  Crim.  Cas.  211 

12  Allen,  187             ..             . 

Com. 

V. 

York,  9  Mete.  93               ... 

Com.  V.  Young,  9  Gray,  5       . 
Comfort  V.  Fulton,  89  Barb.  56    . 

Comfort  V.  People,  54  111.  404  ..  . 

Conkey  v.  People,   1  N.  Y.  Ct.  of  App.  Decis.  418  ; 

aff'g  s.  c.  5  Parker,  31      . 
Conkwright  v.  People,  35  111.  304 
Conley  v.  State,  5  West  Va.  522 ;  2  Green's  Cr.  Reps. 
673  .....  . 

Conner  v.  State,  4  Yerg.  137         . 
"  "      19  Ind.  98;  18  lb.  428 

"      25  Ga.  515  ..  . 

Connolly  v.  People,  3  Scam.  474 
Connor  v.  Com.  3  Va.  Cas.  30        .  .  . 

"     3  Binn.  38       . 
Connor  v.  State,  14  Mo.  561 

"  ''       34  Texas,  659  ..  . 

Conraddy  v.  People,  5  Parker,  334 
Cook  V.  People,  2  N.  Y.  Supm.  N.  S.  404 

Cook  V.  State,  11  Ga.  53  . 

'^     4  Zabr.  843      .... 
Cook's  Case,  1  Rob.  729    . 
Cooper  V.  State,  4  Blackf.  316 

"      23  Texas,  331      . 
Copeland  v.  State,  7  Humph.  479 

"  "      23  Miss.  257 

Copenhaven  v.  State,  15  Ga.  304 
Coppack  V.  State,  36  Ind.  513      . 
Coppage  V.  Com.  3  Bush,  Ky.  532 
Copperman  v.  People,  3  N.  Y.  Supm.  N.  S.  199;  8  lb. 

15;  50  N.  Y.  591 
Corbett  v.  State,  31  Ala.  339         . 
Corbin  v.  Shearer,  3  Gilman,  483 
Corless  v.  Anthony,  4  .Johns.  198 
Corlies  v.  Waddell,  1  Barl).  355 
Cornelius  v.  Com.  15  B.  Mon.  539 


Bill  of  particulars,  83  ;  Indict.  334 ; 

Spirituous  liq's,  sale  of,  570,575. 
Laciviousiiess,4l6;  Nuisance,  481. 
Forgery  <fc  counterfeiting,  208,221. 
Forg.  (fccounterf.  214;  Indict.  327. 
Accessory,  10. 
Homicide,  308,  312,  313. 
Evidence,  151. 
New  trial,  451. 
Libel,  431,433. 
Nuisance,  485. 
Sunday,  584. 
Homicide,  254,  350,  357,  363,  303,. 

377. 
Embezzlement,  120. 
Malicious  trespass,    434;     Search 

warrant,  549  ;  Warrant,  645. 
Larceny,  408. 

Indict.  350 ;  Rape,  534,  536,  538. 
Larceny,  407,  408. 

Indictment,  339. 

Grand  jury,  347  ;  Homicide,  259. 

Trial,  631. 

Witness,  653. 

Indictment,  382. 

Perjury,  502. 

Warrant,  645. 

Burglary,  89. 

Evidence,  149. 

Officer,  489  ;  Trial,  010. 

Evi.  164;  Indict.  340;  Seduction,, 

550,  553. 
Adultery,  13,  14  ;  Trial,  609. 
Evi.  136,  138,  160;  Sentence,  560. 
Perjury,  505. 
Bastardy,  73. 
Evidence,  160. 
Homicide,  357,  308,  315. 
Perjury,  504,  513. 
Former  acquittal  or  convic.  339. 
Perjury,  506. 
New  trial,  449. 

Receiving  stolen  prop.  537,  538. 
Evidence,  136;  Larceny,  403. 
Trial,  615. 

Forcible  entry  and  detainer,  194. 
Bail  and  recognizance,  68. 
Homicide,  391. 


roo 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Cornelius  v.  Com.  3  Mete.  Ky.  481 
Cornelius  v.  State,  7  Eng.  782 

"  "      23  Miss.  782     . 

Cornwell  v.  State,  1  Mart.  &  Yerg.  147 

Cotton  T.  State,  7  Texas,  547        . 

"  "81  Miss.  504  ... 

CottrelFs  Case,  2  Rob.  77  ... 

Coughlin  V.  People,  18  111.  263  .•  . 

Cowan  V.  People,  14  111.  348  . 

Cowley  V.  State,  37  Ala.  152  ... 

Cox  V.  State,  3  Blackf.  193 

Coxdale  v.  State,  1  Head,  139 

Craft  V.  State,  3  Kansas,  450 

Crafts  V.  State,  2  Scam.  442    . 

Craig  V.  State,  5  Ohio,  N.  S.  605 

Crandall  v.  State,  10  Coun.  339 

Crane  v.  State,  41  Texas,  494 

Crawford  v.  State,  4  Cold.  Tenn.  190 
"     33Ind.  304      . 

"     12  Ga.  142  ... 

"  "2  Carter,  132 

Creek  v.  State,  24  Ind.  151      .... 

Crichton  v.  People,  6  Parker,  363;  1  N.  Y.  Ct.  of  Ap- 
peals Decis.  467  .... 

Crilley  v.  State,  20  Wis.  231 

Crippen  v.  People,  8  Mich.  117     . 

Crisson  v.  State,  51  Ga.  597     .... 

Crist  V.  State,  21  Ala.  137 

Crocker  v.  State,  47  Ga.  568  ... 

"  "47  Ala.  53 

"  "      Meigs,  127    . 

Crocket  v.  State,  33  Ind.  416  . 

Crockett  v.  State,  49  Ga.  185 
Croghan  v.  State,  22  Wis.  444      . 
Cromwell  v.  State,  1  Mart.  &  Yerg.  147 
Cronsillat  v.  Ball,  4  D.H.  294        . 
Crookliam  v.  State,  5  West.  Va.  510 
Cross  V.  People,  47  111.  152 
Crosswell  v.  People,  13  Mich.  427 
Crouse  v.  State,  16  Ark.  566 

Crow  V.  State,  41  Texas,  468  ... 

Crozier  v.  People,  1  Parker,  453   . 
Cruiser  v.  State,  3  Harr.  206    . 
Crusen  v.  State,  10  Ohio,  N.  S.  258 
Cubreth,  ^.»;)ar#e,  40  Cal.  436 
Culp  V.  State,  1  Porter,  33  .  .  . 

Cummings  v.  Com.  2  Va.  Cas.  125      .  .      ■       . 

Cummings  v.  Hogdon,  13  Mete.  246 
Cunningham  v.  Com.  9  Bush,  Ky.  149 


Larceny,  412. 

Evidence,  169 ;  Larceny,  411;  New 

trial,  454;  Witness,  647,  651. 
Indictment,  329. 
Indictment,  329. 
Bail  and  recognizance,  64. 
Homicide,  278,  319. 
New  trial,  465. 
Evidence,  130. 

Fal>e  pretenses,  179,  181,  189. 
Indictment,  340. 
Nuisance,  477. 

Forgery  and  counterfeiting,  203. 
Evidence,  159 ;  Homicide,  269,274, 
Forgery  and  counterfeiting,  202. 
Witness,  659. 
Writ  of  error,  664. 
Assault  and  battery,  55. 
Evidence,  149. 
Gaming,  243. 

Homicide,  282,302;  Trial,  609,610. 
Larceny,  389. 
Homicide,  320 ;  Verdict,   642. 

Abortion,  4,5,6;  Indictment,  336. 

Larc.  408;  Nuis.  484;  Trial,  600. 

Evidence,  169. 

Evidence,  159;  Trial,  605. 

Homicide,  282. 

Assault  and  battery,  52;   Former 

acquittal  or  conviction,  231. 
Robbery,  547. 
Witness,  652. 
Sunday,  584. 
Rape,  523. 
Rape,  519. 

Intoxicat'n  as  an  ex.  for  crime,  362. 
Barratry,  71. 
Homicide,  287,  288,  293. 
Forgery  and  counterfeiting,  209. 
Rape,  519. 
Lasciviousness,  418. 
Assault  and  battery,  33. 
Seduction,  550,  552. 
Fore.  ent.  and  det.  193 ;  Indict.  346. 
Perjury,  511. 

Fugitives  from  justice,  235. 
Larceny,  383,  391. 
Larceny,  403. 
Bastardy,  72. 
Trial,  620. 


TABLE  OF  CASES. 


701 


Title  of  Case  and  Report. 


Subject  and  Page. 


Cunningham  v.  People,  11  N.  Y.  Suptn.  N.  S.  455    . 
Cunningham  v.  State,  14  Mo.  402 

"     2  Speers,  246    . 
"  "     5  West  Va.  508 ;  2  Green's  dim. 

Reps.  669    . 
Curlin  v.  State,  4  Yerg.  143    . 
Curran's  Case,  7  Gratt.  619 
Curry  v.  Com.  2  Bush,  Ky.  67 
Curtis  V.  People,  Breese,  197 
Curtis  V.  State,  6  Cold.  9         .  . 

"      26  Ark.  439 
Cutler  V.  State,  42  Ind.  244    . 

Cutter  V.  State,  36  N.  J.  135;  2  Green's  Cr.  Reps.  589. 
Cyphers  v.  People,  81  N.  Y.  373  ;  affi'g  5  Parker,  666. 


Forgery  and  counterfeiting,  199. 
Bail  and  recognizance,  64. 
Dueling,  116,  117. 

Indictment,  339. 
Misdemeanor,  438. 
Arson,  26;  New  trial,  446. 
Intoxicat'n  as  an  ex.  for  crime,  361, 
Assault  and  bat.  51 ;  Verdict,  640. 
Larceny,  406  ;  New  trial,  457. 
Verdict,  639. 
Continuance,  113. 
Ignorance  of  law,  334. 
Jurisdiction,  367,  368. 


D 

Dabney's  Case,  1  Rob.  696       .  . 

Da  Costa,  In  re,  1  Parker,  129      . 
Daily  v.  State,  10  Ind.  536      . 
Dale  V.  State,  27  Ala.  31 

"  "      10  Yerg.  551     . 

Dally  V.  Overseers  of  Woodbridge,  1  Zabr.  491 
Daly  V.  State,  33  Ala.  431       . 
Dame  v.  State,  2  Humph.  439 
Dameron  v.  State,  8  Mo.  494 
Damewood  v.  State,  1  How.  Miss.  263 
Damon's  Case,  6  Maine,  148    . 
Daniel  v.  State,  8  Smed.  &  Marsh.  401    . 
Daniels  v.  Com.  7  Barr,  371    . 
Danneburg  v.  State,  20  Ind.  181    . 
Dansby  v.  State,  34  Texas,  392 
Darling  v.  Hubbell,  9  Conn.  350 
Davenport  v.  State,  38  Ga.  184 
Davenport's  Case,  1  Leigh,  588     . 
Davidson  v.  State,  9  Humph.  455 
Davis  V.  Com.  17  Gratt.  617 
Davis  V.  McDonald,  42  Ga.  205 
Davis  V.  People,  2  N.  Y.  Supm.  N.  S.  213 

"  "        1  Parker,  447 

"  "        19  III.  74 

Davis  V.  Salisbury,  1  Day.  278 
Davis  V.  State,  38  Wis.  487 

"  -'6  How.  Miss.  399 

"  "      6  Black  f.  494 

"  "3  Cold.  Tenn.  7 

"  "      7  Ohio,  204 

"  "      88Md.  15 

"  "17  Ala.  354 

"      17  Ala.  415      . 

"  "20  Ga.  074 


Pardon,  494. 

Habeas  corpus,  252,  254. 
Larceny,  391. 
Gaming,  241. 
Homicide,  357. 
Bastardy,  75. 

Spirituous  liquors,  sale  of,  574. 
Homicide,  257. 
Lasciviousness,  417. 
Larceny,  383,  398. 
Bigamy,  79. 

Homi.  294,299,300,301 ;  Trial,  615. 
Sentence,  558. 

Former  acquittal  or  con.  231. 
New  trial,  452. 
Bail  and  recognizance,  60. 
Indictment,  331. 
Larceny,  374 
Assault  and  battery,  48. 
Malicious  mischief,  430. 
Evidence,  157. 
Abortion,  6. 
Burglary,  94. 
New  trial,  455. 
Bastardy,  74. 
Assault  and  battery,  47. 
Bail  and  recognizance,  62. 
Bastardy,  73. 
Burglary,  91. 
Gaming,  241. 
Evidence,  131,  100,  101. 
Evidence,  134,  135. 
Larceny,  393  ;  Trial,  607. 
Indictment,  351. 


ro2 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Davis  V.  State,  39  Md.  355;  2  Green's  Cr,  Reps.  381 

"  "      10  Ga.  105      . 

"  "      40  Ga.  229  ..  . 

"  "37  Texas,  227 

"35  Ind.  496 
Dawley  v.  State,  4  lud.  128 
Dawson  v.  People,  25  N.  Y.  399 
"  "        5  Parker,  118 

Dawson  v.  State,  16  Ind.  428 

"      33  Texas,  431 
Day  V.  People,  76  P.!.  380 
Dean  v.  Com.  4  Gratt.  541 

"  "      3  Serg.  &  Rawle,  418 

Dean  v.  State,  2  Sm.  &  Marsh.  200     . 
Deathridge  v.  State,  1  Sneed,  75 
De  Bernie  v.  State,  19  Ala.  23 
De  Bouillon  v.  People,  2  Hill,  248 
Dedieu  v.  People,  22  N.  Y.  178 
Deer  v.  State,  14  Mo.  348 
De  Forest  v.  State,  21  Ind.  23 
Defrese  v.   State,  3   Heisk.    53;  1    Green's  Cr.  Rep: 

356  ..... 

Didieu  v.  Peop'e,  4  Parker,  593 
Degant  v.  Michael,  2  Carter,  396         .  . 

Diggs  V.  State,  49  Ala.  311 
Dignowitty  v.  State,  17  Texas,  521     . 
Dilby  V.  State,  Riley,  302 
Dill  V.  State,  25  Ala.  15  .  .  . 

Dillard  v.  State,  41  Ga.  278 
Dillin  V.  People,  8  Mich.  357 
Dillingham  v.  State,  5  Ohio,  N.  S.  280     . 
Dillingham  v.  U.  S.  2  Wash.  C.  C.  422 
Dillon  V.  People,  4  N.  Y.  Siipm.  K  S.  203;  8  lb.  670 
Ditto  V.  Com.  2  Bibb,  17  .  .  . 

Dixon  V.  People,  18  Mich.  81        . 
Dixon  V.  State,  3  Iowa,  416 

"  "      13  Fla.  636 ;  1  Green's  Cr.  Reps.  68 

Doau  y.  State,  26  Ind.  495 
Dobbins  v.  State,  2  Humph.  424 
Dock  V.  Com.  21  Gratt.  9n9     . 
Dodd  V.  Hamilton,  2  Taylor,  31 
Doering  v.  State,  49  Ind.  56 
Dollarhide  v.  U.  S.  1  Morris,  233 
Dominges  v.  State,  7  Sm.  &  Marsh.  475 
Domiuick  v.  State,  40  Ala.  680     . 

Donahoe  v.  Shed,  8  Mete.  323 
Done  V.  People,  5  Parker,  364 
Don  Moran  v.  People,  25  Mich.  356    . 
Donnel  v.  U.  S.  1  Morris.  141        . 


Homicide,  261  ;  Indictment,  338. 

Homic.  300,  302,  304 ;  Trial,  605. 

Larceny,  395. 

Larceny,  411. 

New  trial,  456  ;  Witness,  653. 

Evidence,  158. 

Ass.  and  batt.  51 ;  Indict.  328,  352. 

Writ  of  error,  661. 

Intox'n  as  an  excuse  for  crime,  361. 

Homicide,  309. 

Verdict,  640. 

Evidence.  152. 

Forcible  entry  and  detainer,  193. 

Bail  and  recognizance,  64. 

Evidence,  148. 

Perjury,  506. 

Libel,  421,  424,  425. 

Arson,  29. 

New  trial,  458,  459 ;  Witness,  658. 

Homicide,  322. 

Evidence,  158;  Larceny,  377. 

Arson,  31. 

Fugitives  from  justice,  235. 

Evidence,  127. 

Larceny,  373,  402. 

New  trial,  463. 

Homicide,  260  ;  Trial,  620. 

Lasciviousness,  416. 

Homi.279,286;  Writ  of  error,  664. 

False  pretenses,  175,  179. 

Bail  and  recognizance,  69. 

Larceny,  407,  409. 

New  trial,  458. 

Evidence,  127. 

Assault  and  battery,  57. 

Evidence,    140,    163;     Homicide, 

284,  294.  301. 
Accessory,  8. 
Gaming,  238. 
Homicide,  320. 
Larceny,  381. 
Arrest,  21. 

Assault  and  battery,  50. 
Evidence,  132. 
Former    acquittal  or    conviction, 

226;  Trial,  607. 
Warrant,  646. 

Evid.148;  Sent.556,558;  Trial, 617. 
Rape,  519. 
Indictment,  331. 


TABLE   OF   CASES. 


703 


Title  of  Case  and  Report. 


Subject  and  Page. 


Donnellan  v.  Com.  7  Bush,  676 
Donnelly  v.  State,  2  Dutch.  464 
"      SDutch.  GOl 
DoDOghoe  V.  People,  6  Parker.  130 
Donohue  v.  People,  56  N.  Y.  208 

Donston  v.  State,  6  Humph.  375 
Dord  V.  People,  9  Barb.  671 
Dormer  v.  State,  2  Carter,  308 
Doss  V.  Com.  1  Gratt.  557 
Doty  V.  State,  6  Blackf.  529  ;  7  lb.  437 

Dougherty  v.  Com.  69  Penn.  St.  286 

Dougherty  v.  People,  4  Scam.  180     . 

Douglass  V.  Com.  8  Watts,  538     . 

Douglass  V.  State,  4  Wis,  387 

Douglass  V.  Wickwire,  19  Conn.  488 

Dove  V.  State,  3  Heisk.  348 ;  1  Green's  Cr.  Reps 

Dover  v.  State,  33  Texas,  84 

Dowdy  V.  Com.  9  Gratt.  727 

Dowell  V.  State,  2  Carter,  658 

Dowling  V.  State,  5  Smed.  &  Marsh.  664 

Downing  v.  State,  4  Mo.  573 

Dow's  Case,  18  Penn.  St.  37 

Doyle  V.  Eussell,  30  Barb.  300 

Drake  v.  Com.  10  B.  Mon.  335      . 

Drake  v.  State,  19  Ohio,  311  . 

Drennan  v.  People,  10  Mich.  169 

Drew  V.  Com.  1  Whart.  279 

Drew  V.  Stale,  5  Eng.  82 

Driskill  v.  State,  45  Ala.  21     . 

Drowne  v.  Stimpson,  3  Mass.  441 

Drury  agst.  People,  10  N.  Y.  120 

Dudley's  Case,  6  Leigh,  613 

DuflFy  V.  People,  5  Parker,  321 ;  36  N.  Y.  588 

Dukes  V.  State,  14  Fla.  499 
Duncan  v.  Com.  4  Serg.  &  Rawle,  449 
"  "6  Dana,  295 

"  "      2  B.  Mon.  281 

Dunn  V.  Com.  6  Barr,  384 
Dunn  V.  People,  29  N.  Y.  523 
Dunn  V.  State,  3  Ark.  339 

Dunnaway  v.  State,  9  Yerg.  350 
Dupree  v.  State,  33  Ala.  380 
Durant  v.  People,  13  Mich.  351 
Durham  v.  People,  4  Scam.  173 
Durham  v.  State,  9  Ga.  306     . 
Dutcher  v.  State,  18  Ohio,  708      . 
Dye  V.  Com.  7  Gratt.  662         . 
Dyer  v.  Chick,  52  Muine,  350 


.      Homicide,  356,  277. 

Homicide,  371,  394,  397. 
.      Homicide,  288 ;  Writ  of  error,  664. 

Evidence,  133,  154. 

Evidence,  140 ;  Witness,  652 ;  Writ 
of  error,  664. 
.      New  trial,  461. 

False  pretenses,  181. 
.      Gaming,  243,  344. 

Trial,  613. 
.      Larceny,  416;  Trial,  618;  Venue, 
change  of,  635,  636. 

Trial,  605. 
.      Riot,  542. 

Bastardy,  77. 

Nuisance,  470. 

Officer,  487. 
760.     Evidence,  164;  Insanity,  357. 

Malicious  mischief,  433. 

Trial,  603. 

Spirituous  liquors,  sale  of,  567. 

Homicide,  299. 

Indictment,  345. 

Arrest,  22. 

Arrest,  22. 

Ass.  and  batt.  45;  New  trial,  448. 

Homicide,  268. 

Arrest,  21. 

Sentence,  559. 

Gaming,  241. 

Indictment,  328. 

Bastardy,  74. 

Homicide,  263. 

Dueling,  117. 

Evidence,  148;    Trial,    623;    Ver- 
dict, 637. 

Homicide,  301,  303. 

Adultery,  13,  16. 

Affray,    17 ;    Former  acquittal   or 
conviction,  233. 

Spirituous  liquors,  sale  of,  566. 

Trial,  605. 

Abortion,  6,  7  ;  Trial,  633. 

Evidence,  157 ;  Former  acquittal  or 
conv.  237  ;  Homicide,  395. 

Nuisance,  468. 

Homicide,  390,  399,  318. 

Receiving  stolen  property,  537. 

Former  acquittal  or  conv.  333,  225. 

Nolle  prosequi,  466. 

Burglary,  90,  92. 

Trial,  628. 

Forcible  entry  and  detainer,  193. 


f04 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


E 


Subject  and  Page. 


Eames  v.  State.  6  Humph.  53 

Easterling  v.  State,  30  Ala.  40      . 

Eastman  v.  Com.  4  Gray,  416 

Eastwood  V.  People,  3  Parker,  25  ;  14  N.  Y.  5G2 


Eberhart  v.  State,  47  Ga.  598  ... 

Eckels  V.  State,  30  Ohio,  N.  S.  508 

Edgar  v.  State,  43  Ala.  45       . 

Edge  V.  Com.  7  Barr,  275  ... 

Edmonds  v.  State,  5  Humph.  94         . 

Edmondson  v.  State,  41  Texas,  496 

"       17  Ala.  179       . 
Edwards  V.  Com.  19  Pick.  124      . 
Edwards  v.  State,  25  Ark.  444  ..  . 

"27  Ark.  493;  1  Green's  Cr.  R.  741. 
Eggler  V.  People,  56  N.  Y.  642     . 

"         3  N.  Y.  Supm.  N.  S.  796  . 
Eitel  V.  State,  33  Ind.  201 
Elam  V.  State,  25  Ala.  53         . 

Eliza  V.  State,  39  Ala.  693       .... 

Elizabeth  v.  State,  27  Texas,  329 

Elkin  V.  People,  28  N.  Y.  177 

Elkius  V.  State,  2  Humph.  543     . 

Ellenwood  v.  Com.  10  Mete.  222 

Elliott  V.  State,  46  Ga.  159 

"       26  Ala.  78       . 
Ellis  V.  State,  7  Blackf.  534 
Ellison  V.  State,  8  Ala.  273     . 
Ells  V.  State,  20  Ga.  438    . 
Emory  v.  State,  6  Blackf.  107 
Engleman  v.  State,  2  Carter,  91     . 

English  V.  State,  35  Ala.  428 

Ennis  v.  State,  3  Greene,  67     . 

Epperson  v.  State,  42  Texas,  79     . 

Eskridge  v.  State,  25  Ala.  50  . 

Esmon  v.  State,  1  Swan,  14 

Estep  V.  Lacy,  35  Iowa,  419;  2  Green's  Crim.  R.  634 

Estes  V.  State,  2  Humph.  496 

Eubanks  v.  State,  3  Heisk.  488 ;  1  Green's  Cr.  R.  323 

"      17  Ala.  181 
Evans  V.  Com.  3  Mete.  453 
Evans  v.  Foster,  1  New  Hamp.  374 
Evans  v.  People,  12  Mich.  27  . 

49  N.  Y.  86 
Evans  V.  State,  8  Ohio,  196      . 


Arrest,  21. 

Spirituous  liquors,  sale  of,  567. 

Larceny,  389. 

Intoxication  as  an  excuse  for  crime, 
361  ;  New  trial,  454,  461  ;  Ver- 
dict, 642. 

Evidence,  149. 

Larceny,  372. 

Homicide,  290. 

Indictment,  337. 

Bastardy,  74. 

Homicide,  265. 

Indictment,  331. 

Forgei-y  and  counterfeiting,  213. 

Homi.  268;  Venue,  change  of,  634. 

Homicide,  265,  288. 

Homicide,  273,  299 ;  Trial,  624. 

New  trial,  447;  Writ  of  error,  664. 

Sunday,  584. 

Spirituous  liquors,  sale  of,  576; 
Witness,  659. 

Sentence,  555;  Statutes,  581. 

Evidence,  148. 

Conspiracy,  105. 

Nuisance,  471. 

Trial,  592. 

Assault  and  batteiy,  53,  56. 

Indictment,  341,  349. 

Nuisance,  485. 

Bail  and  recognizance,  66,  67. 

Adultery,  15. 

Extortion,  173. 

Indictment,  334;  Larceny,  389, 
397,  398,  399,  407. 

Witness,  649. 

Larceny,  373. 

False  pretenses,  184. 

Evidence,  143;  Trial,  617. 

Former  acquittal  or  con  vie.  225. 

Pardon,  495. 

Bail  and  recognizance,  60,  65. 

Gaming,  236. 

Indictment,  338. 

Information,  354;  Pardon,  494. 

Bail  and  recognizance,  65. 

Evidence,  163. 

Homicide,  310. 

Forgery  and  counterfeiting,  202. 


TABLE   OF   CASES. 


705 


Title  of  Case  and  Report. 


Subject  and  Page. 


Evans  v.  State,  33  Ga.  4    . 

"  "      44  Miss.  7G2    . 

Evers  v.  People,  6  N.  Y.  Supm.  N.  S.  81 
Evins  V.  State,  46  Ala.  88 
Ezell,  Exjjurte,  40  Texas,  451 


Horaicide,  807. 

Homicide,  318. 

Evidence,  164;  Homicide,  321. 

Concealed  weapons,  101. 

Habeas  corpus,  2o2. 


F 


Fairlee  v.  People,  11  111.  1        . 

Falk  V.  People,  42  111.  332 

Fall  agst.  Overseers  of  the  Poor,  3  Munf.  49.5 

Fallon  V.  People,  2  N.  Y.  Ct.  of  App.  Decis.  83;  2 

Keyes,  145 
Fanning  v.  State,  14  Mo.  386 
Farez,  In  re,  5  Blatchf.  414;  7  lb.  34.  345,  491 
Farez,  Matter  of,  7  Abb.  N.  S.  84 
Faris  v.  State,  3  Ohio,  N.  S.  159 
Farrall  v.  State,  32  Ala.  557 
Farrington  v.  State,  10  Ohio,  354 
Farrow  v.  State,  48  Ga.  30 
Faulds  V.  People,  66  111.  210    . 
Feazle's  Case,  8  Graft.  585 
Felix  V.  State,  18  Ala.  720      . 
Fellows'  Case,  5  Maine,  333 
Fell's  Case,  9  Leigh,  613  . 

Felter  v.  State,  9  Yerg.  397 
Fennell  v.  State,  32  Texas,  378 
Fenton  v.  People,  4  Hill,  126 
Ferdinand  v.  State,  39  Ala.  706 
Fergus  v.  State,  6  Yerg.  345 
Ferguson  v.  State,  32  Ga.  658 
"       49  Ind.  33 
Ferreira  Dos  Santos,  Case  of,  2  Brock.  498    . 
Ferris  v.  People,  48  Barb.  17;  affi'd  35  N.  Y.  12 


Fetter,  Matter  of,  3  Zabr.  311 

Fiddler  v.  State,  7  Humph.  508    . 

Field  V.  Ireland,  21  Ala.  240   .... 
Field's  Case,  4  Leigh,  648  ..  . 

Fields  V.  State,  47  Ala.  603;  1  Green's  Crim.  R.  635. 
Fife  V.  Com.  29  Penn.  St.  429        . 
Findley  v.  People,  1  Manning,  234 
Findley  v.  State,  5  Blackf.  576     . 
Finn  v.  Com.  5  Rand.  701        .... 
Finney  v.  State,  3  Head,  544 
Fisher  v.  Com.  1  Bush  (Ky.)  211  . 

45 


Homicide,  268. 

New  trial,  449 ;  Verdict,  638. 

Bastardy,  75. 

Larceny,  403. 

Evidence,  152;  Trial,  591. 

Fugitives  from  justice,  233,  234. 

Fugitives  from  justice,  238. 

Officer,  490,  491. 

Trial,  618. 

Forgery  and  counterfeiting,  216. 

Indictment,  331. 

Malicious  mischief,  430. 

Gaming,  244. 

Evid.  150,  151;  Homi.  255,  270. 

Jury,  370  ;  Trial,  600. 

Trial,  628. 

Larceny,  378,  381. 

Sodomy,  565. 

False  pretenses,  181. 

Statutes,  581. 

Forgery  and  counterfeiting,  205. 

Conspiracy,  104. 

Trial,  613,  622. 

Fugitives  from  justice,  232,  233. 

Former    acquittal   or    conviction, 

224 ;  New  trial,  443 ;  Trial,  594 ; 

Writ  of  error,  664. 
Fugitives  from  justice,   232,  234; 

Habeas  corpus,  253. 
Former   acquittal    or   conviction, 

229;  Gaming,  238. 
Receiving  stolen  property,  532. 
Rape,  528. 
Evidence,  150. 
Evidence,  148. 
Abatement,  2. 
Venue,  change  of,  636. 
Forgery  and  counterfeiting,  222. 
Bigamy,  80. 
Former  acquittal  or  convic.  225. 


roG 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject'and  Page. 


Fisher  v.  People,  23  111.  283  . 

Fisher  V.  Shattuck,  17  Pick.  252 
Fisher  v.  State,  43  Ala.  17 

"  "       46  Ala.  717    . 

Fisher's  Case,  23  111.  293  . 

Fitch  V.  People,  16  Johns.  141  ..  . 

Fitch  V.  State,  2  Nott  &  McCord,  558      . 
Fitzgerald  v.  People,  37  N.  Y.  413;  5  N.  Y.  Trans,  of 

App.  273;  49  Barb.  122     . 
Fitzgerald  v.  State,  4  Wis.  395 
Fizeie  y.  State,  25  Wis.  361 
Flanagan  v.  People,  52  N.  Y.  467 ;  1  Green's  Cr.  E 

377, 
Flanagan  v.  State,  19  Ala.  546       . 

'^      46  Ala.  73  . 
Flanagin  v.  State,  25  Ark.  92        . 
Fleming  v.  People,  27  N.  Y.  329 
Fleming  V.  State,  5  Humph.  564  . 
Fletcher  v.  People,  52  111.  395 
"  "6  Humph.  249 

"  ''        49  Ind.  124 

Flournoj'  v.  State,  16  Texas,  ol     . 
Floyd  V.  State,  36  Ga.  91         .  .  . 

"  "       3  Heisk.  342;  1  Green's  Crim.  R.  75 

"  "       30  Ala.  511      . 

"  "7  Texas,  215  .      . 

Fogg  V.  State,  9  Yerg.  392 
Foley  V.  State,  9  Iowa,  363 

"  "      1  Breese,  32      . 

Foltz  V.  State,  33  Ind.  215 
Ford  V.  State,  12  Md.  514      . 
Forney  v.  State,  13  Mo.  455 
Forrester  v.  State,  34  Ga.  107  . 
Forsythe  v.  State,  6  Ham.  20 
Foster  v.  People,  50  N.  Y.  598 

"  "        18  Mich.  266      . 

Foster  v.  State,  39  Ala.  229     . 

Foulke's  Case,  2  Rob.  836 
Fouts  V.  State,  7  Ohio,  N.  S.  471 
"8  Ohio,  N.  S.  98 
"  "      4  Greene,  500 

Fowler  v.  Com.  4  Monr.  128  . 
Fowler  v.  State,  3  Heisk.  154 ;  1  Green's  Cr.  R.  295 

"      5  Day,  81  .  .  . 

Fox  V.  State,  8  Humph.  63     . 
Foxdale  v.  State,  9  Humph.  411  . 
Fralich  v.  People,  65  Barb.  48;  1  Green's  Cr.  R.  714 

France  v.  State,  42  Texas,  276  .  . 

Francisco  v.  People.  4  Parker,  139 


Trial,  626. 

Bastardy,  73. 

Burglary,  88,  89. 

Larceny,  387,  408. 

Insanity,  359. 

Forcible  entry  and  detainer,  195. 

Bail  and  recognizance,  68. 

Homicide,  269 ;  Verdict,  638. 
Indictment,  329. 
Rape,  519. 

Insanity,  355. 

Assault  and  battery,  58. 

Homicide,  309. 

Evidence,  152,  159. 

Bigamy,  78,  81;  Evidence,  156. 

Witness,  658. 

False  imprisonment,  172. 

Trial,  597. 

W^itness,  650. 

Trial,  616. 

Assault  and  battery,  56. 

Assault  and  bat.  52 ;  Homi.  274. 

Grand  jury,  247;  Perjury,  512. 

Witness,  655. 

Forgery  and  counterfeiting,  211. 

Assault  and  battery,  57. 

Bail  and  recognizance,  61. 

Sunday,  584. 

Homicide,  304 ;  Trial,  630. 

Gaming,  238. 

Indictment,  350. 

Burglary,  88 ;  Jury,  370. 

Trial,  614. 

Witness,  649. 

Former  acquittal    or    conviction, 

230,  231 ;  Trial,  606. 
Forgery  and  counterfeit.  200,  215. 
Conspiracy,  109  ;  Trial,  602. 
Evidence,  144;  Homicide,  368. 
Homicide,  256,  269  ;  Insanity,  856. 
Bail  and  recognizance,  64. 
Assault  and  battery,  40. 
Lasciviousness,  416,  418. 
Lasciviousness,  419. 
New  trial,  450. 
Evi.  136;  Homic.  309  ;  New  trial, 

442,  449  ;  Witness,  658. 
Burglary,  86. 
Pilot,  515. 


TABLE   OF   CASES. 


707 


Title  of  Case  and  Report. 


Subject  and  Page. 


Prancisco  v.  Stats,  4  Zabr.  30 

"  "1  Carter,  179 

Frank  v.  State,  40  Ala.  9 
"  "       39  Miss.  703 

"       27  Ala.  37       . 
Franklin  v.  State,  28  Ala.  9 

"  "       29  Ala.  14  . 

Frazer  v.  People,  54  Barb.  306     . 
Frazier  v.  State,  39  Texas,  390 

"  "5  Mo.  536 

Frederick  v.  Com.  4  B.  Mon.  7 
Frederick  v.  State,  3  West  Va.  695 
Free  v.  State,  1  McMullan,  494 
Freel  v.  State,  21  Ark.  212 
Freeland  v.  People,  16  111.  380 
Freeman  v.  People,  4  Denio,  9     . 


Freeman  v.  State,  6  Porter,  372 
Freleigh  v.  State,  8  Mo.  606         . 
French  v.  People,  3  Parker.  114 
French  v.  State,  12  Ind.  670 
Freund  v.  People,  5  Parker,  198        . 
Friar  v.  State,  3  How.  Miss.  422  . 
Friery  v.  People,  54  Barb.  319;  affi'd  2  Keyes,  424  ;  2 
N.  Y.  Ct.  of  App.  Decis.  215       . 

Fritz  V.  State,  40  Ind.  18 ;  1  Green's  Cr.  Reps.  554. 

Frost  V.  Com.  9  B.  Mon.  362         . 

Fugate  V.  State,  2  Humph.  397  . 

Fugate's  Case,  2  Leigh,  724 

Fulford  V.  State,  50  Ga.  591  . 

Fulkner  v.  State,  3  Heisk.  33;  1  Green's  Cr.  R.  664. 

Fuller  V.  State,  48  Ala.  273 

"       1  Blackf.  63    . 
Fulton  V.  State,  8  Eng.  168  .  .  . 


Assault  and  battery,  41. 

Indictment,  347. 

Bill  of  exceptions,  83. 

Burglary,  86. 

Conspiracy,  104  ;  Homicide,  286. 

Evidence,  147;  Indictment,  328. 

Homicide,  298. 

Abor.  4,  6  ;  Evi.  170  ;  Indict.  343. 

Sodomy,  565. 

Verdict,  640. 

Nuisance,  478,  482. 

Evidence,  148. 

Trial,  612;    Witness,  659. 

Homicide,  304. 

Former  acquittal  or  convic.  230. 

Insanity,  358,  359;  Trial,  593,  595, 

598,  601,  022. 
Nuisance,  476. 

Contin.  112;  Lot.  428;  Trial,  609. 
Indict.  349  ;  Spir.  liq.  sale  of,  568. 
Evidence,  165  ;  Indictment,  335. 
Arson,  29,  31. 
Trial,  590,  627. 
Intoxica'n  as  an  excuse  for  crime, 

360;  New  trial,  443;  Trial,  594, 

602. 
Former  acquit,  or  convic.  229,  330. 
Adultery,  15. 
Gaming,  241. 
Pardon,  494. 
Assault  and  battery,  49. 
Former  acquittal  or  convic.  231. 
Burglary,  93;  Larceny,  406. 
Jury,  371,  399. 
Larceny,  382. 


G 


Gabe  v.  State,  1  Eng.  519 

Gabriel  v.  State,  40  Ala.  357  . 

Gaffney  v.  People,  50  N,  Y.  416    . 

Gage  V.  Shelton,  3  Rich.  242  . 

Gahan  v.  People,  58  111.  160 ;  1  Green's  Cr.  R.  704 

Gaines  v.  Com,  50  Penn.  St.  319  . 

Gallagher  v.  State,  3  Minn.  270 

Galloway  v.  State,  2!)  Ind.  442     . 

Galvin  v.  State,  6  Cold.  Tenn.  383     . 

Gamble  v.  State,  35  Miss.  222       . 

Gamblin  v.  State,  45  Miss.  058 


Abatement,  1;  Forg.  and  count'g, 

206,  208,  217. 
Larceny,  393,  410. 
Evidence,  167;  Writ  of  error,  663. 
Arson,  24. 
Evidence,  128. 

Homicide,  288;  Verdict,  637. 
Assault  and  battery,  39. 
Perjury,  508,  511,  512. 
Homicide,  310. 
Vot'ng,  645. 
Concealed  weapons.  101. 


(08 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Ganaway  v.  State,  23  Ala.  772 
Gandolfo  v.  State,  11  Ohio,  N.  S.  114       . 
Gann  v.  State,  30  Ga.  67 
Gano  V.  Hall,  5  Parker,  651  ;  42  N.  Y.  67 
Garber  v.  State,  4  Cold,  Tenn.  161      . 
Garcia  v.  State,  26  Texas,  209 
Gardenheir  v.  State,  6  Texas,  348 
Gardiner  v.  People,  6  Parker,  155 


"  "  3  Scam.  83 

Gardner  v.  State,  4  Ind.  632 

"      48  Ala.  263 
Garrett  v.  State,  6  Mo.  1  . 
Gates  V.  People,  14  111.  433     . 
Gatewood  v.  State,  4  Ohio,  386    . 
Gedge  v.  Com.  9  Bush,  Ky.  61 
Geiger  v.  State,  5  Iowa,  484 
Genig  v.  State,  1  McCord,  573 
George  v.  State,  39  Miss.  570 
Gerard  v.  People,  3  Scam.  362 
Gholston  V.  State,  33  Texas,  342. 
Giacomo,  In  re,  12  Blatchf.  391 
Gibbons  v.  People,  33  111.  442 
Gibbs  V.  State,  34  Texas,  134 
Gibson  v.  Com.  2  Va.  Cas.  Ill 
Gibson  v.  State,  44  Ala.  17    . 

"  "      39  Ala.  093 

Gilbert  v.  State.  7  Humph.  524 
Gildersleeve  v.  People,  10  Barb.  35 
Giles  V.  State,  6  Ga.  276 
Gill  V.  People,  5  N.  Y.  Supm.  N.  S.  308 


Gillespie  v.  State,  8  Yerg.  507 

"  "     6  Humph.  164 

Gilliam  v.  State,  1  Head,  38 
Gilmore  v.  McNeil,  46  Maine,  532 
Ginn  v.  Com.  5  Litt.  300         . 
Givens  v.  State,  6  Texas,  344 
Glackan  v.  Com.  3  Mete.  Ky.  233 
Gladden  v.  State,  13  Fla.  623 

"  "       12  Fla.  562 

Glass  V.  State,  30  Ala.  529 
Glory  V.  State,  8  Eng.  230       . 
Godfrey  v.  People,  12  N.  Y.  Siipm.  JST.  S.  369 
Godfrey  v.  State,  31  Ala.  323 
Goforth  V.  State,  8  Humph.  37     . 
Goghagan  v.  People,  1  Parker,  378     . 
Goldv.  Bissel,  1  Wend.  210 
Golden  v.  State,  1  Rich.  K  S.  292      . 


Indictment,  328. 

Trial,  626. 

Homicide,  307. 

Commitment,  98. 

Homicide,  283. 

Larceny,  409. 

Assault  and  battery,  57. 

Evi.    140,  151,  156,   164  ;  Former 

acquittal  or  convic.  323;  Homi. 

270,271 ;  Jury,  371  ;  New  trial, 

441  ;  Trial,  590,  593,  594,  603. 
Homicide,  287  ;  Trial,  592,  607. 
Ass.  and  batt.  36;  Compl't,  99,100". 
Trial,  604. 
Witness,  649,  657. 
Trial,  597. 
Larceny,  387. 
Nuisance,  472. 
Indictment,  330. 
Spirituous  liquors,  sale  of,  576. 
Witness  650. 

Former  acquit,  or  convic.  223,  228. 
Malicious  mischief,  432. 
Fugitives  from  justice,  232. 
Gaming,  236. 
Malicious  mischief,  432. 
Jury,  370. 

Habeas  corpus,  249 ;  Perjury,  498. 
Sentence,  554. 
New  trial,  458. 
Bail  and  recognizance,  65. 
Libel,  422,423;  New  trial,  459,463. 
Certiorari,  96;    Indictment,    334; 

Jurisdiction,  364  ;  Witness,  658. 
Trial,  596. 
Usury,  633. 
Witness,  659. 
Larceny,  414. 
Bastardy,  75. 
New  trial,  444. 
False  pretenses,  175,  181. 
Homicide,  301. 
Trial,  605. 
Gaming,  240. 

Homicide,  276  ;  New  trial,  465. 
Mayhem,  436. 
Homicide,  255. 
Malicious  mischief,  429,  433. 
Bigamy,  80. 
Arrest,  19. 
Assault  and  battery,  36. 


TABLE  OF  CASES. 


709 


Title  of  Case  and  Report. 


Subject  and  Page. 


Golden  v.  State,  2;j  Ga.  527 
Goldsmith  v.  State,  1  Head,  154 
Golliher  v.  Com.  2  Duvall,  163     . 

Goodall  V.  State,  1  Oregon,  338 

"     22  Ohio,  N.  S.  203  ;  1  Green's 
Reps.  671 
Goodell  V.  People,  5  Parker.  206 
Goodin  v.  State,  16  Ohio,  K  S.  344 
Goodman  v.  State,  5  Smed.  &  Marsh.  510 
Goodrich  v.  People,  19  N.  Y..574;  affi'g  3  Parker 
Goodwin  v.  Governor,  1  Stew.  &  Port.  465 
Gordon  v.  People,  33  N.  Y.  501. 
Gordon  v.  State,  4  Mo.  375 

"3  Iowa,  410 
Gorman  v.  State,  42  Texas,  221     . 

"23  Texas,  646 
Goudy  V.  State,  4  Blackf.  548       . 
Grable  v.  State,  2  Greene,  559 
Grady  v.  State,  11  Ga.  253  ..  . 

Graham  v.  Com.  16  B.  Mon.  587 
Graham  v.  Monsergh,  22  Vt.  543 
Graham  v.  People,  63  Barb.  468 
Graham  v.  State,  40  Ala.  659 
Grainger  v.  State,  5  Yerg.  459 
Grant  v.  People,  4  Parker,  527     . 

Grant  v.  State,  2  Cold.  Tenn.  216       . 

"      45  Ga.  477 
Graves  v.  Adams,  8  Yt.  130     . 
Graves  v.  American  Exch.  Bank,  17  N.  Y.  205    . 
Graves  v.  State,  9  Ala.  447 

Gray  v.  People,  26  111.  344  ..  . 

Grayson  v.  Com.  7  Gratt.  613 
Grayson's  Case,  6  Gratt.  712  .  ... 

Green  v.  State,  13  Mo.  382       . 

"      41  Ala.  419  ..  . 

"  "      28  Miss.  687   . 

Greenlow  v.  State,  4  Humph.  25 
Green's  Case,  11  Leigh,  677    . 

"     1  Rob.  731 
Greenwood  v.  State,  35  Texas,  587     . 
Greer  v.  State,  22  Texas,  588        . 
Greeson  v.  State,  5  How.  Miss.  33 
Gregg  V.  State,  3  West  Va.  705    . 
Gregory  v.  Com.  5  Dana,  417 
Gregory  v.  State,  46  Ala.  151        . 
Greschia  v.  People,  53  III.  295 
Griffin  v.  Com.  Litt.  Sel.  Cas.  31 
Griffin  V.  State,  26  Ga.  493     . 


Crim. 


622. 


Intoxicat'u  as  an  ex.  for  crime,  360. 

Nuisance,  483. 

Homicide,  263 ;  Intoxication  as  an 

excuse  for  crime,  360. 
Homicide,  274,  297,  319. 

Larceny,  400. 

Attorney,  58. 

Trial,  592. 

Homicide,  271. 

Unwholes'meprov.  sale  of,  631,632. 

Bail  and  recognizance,  64,  68. 

Evidence,  153. 

Dueling,  117. 

Evidence,  151. 

Assault  and  battery,  35. 

Bigamy,  81. 

Former  acquittal  or  conv.  232. 

Trial,  612. 

Sentence,   555. 

Insanity,  356. 

Bastardy,  73. 

New  trial,  450  ;  Writ  of  error,  663. 

Sentence,  554. 

Homicide,  317,  831. 

Former   acquittal   or    conviction, 

224,  231  ;  Writ  of  error,  663. 
Assault  and  battery,  47. 
Trial,  622. 
Bastardy,  72. 

Forgery  and  counterfeiting,  196. 
Libel,  424,  435. 
Evidence,  158  ;  Trial,  601. 
New  trial,  463. 
New  trial,  462. 
Conspiracy,  104 ;  Continuance,  112 ; 

Evid.  138;  Homicide,  256,  294. 
Evidence,  129;  Perjury,  512. 
Homicide,  258,  301. 
Indictment,  340. 
Bail  and  recognizance,  62. 
Continuance,  111. 
Evidence,  135. 
Statutes,  580. 
Larceny,  383,  393. 
Witness,  648. 
Indictment,  346. 
Indictment,  351. 
Homicide,  306. 
Bail  and  recoguizauce,  70. 
Larceny,  396. 


710 


TABLE  OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Griswold  v.  Sedgwick,  1  Wend.  12G  ;   6  Cow.  456 
Grogan  v.  State,  44  Ala.  9       . 
Gross  V.  State,  2  Carter,  1 35 

"  "      2  Carter,  329   . 

Grubb  T.  State,  14  lb.  434  ..  . 

Gruber  v.  State,  3  West  Va.  699 
Grummond  v.  State,  10  Ohio,  510 
Grumon  v.  Raymond,  1  Conn.  40 
Guedel  v.  People,  43  111.  228         . 
Guenther  v.  People,  24  N.  Y.  100 

Guess  V.  State,  1  Eng.  147  ..  . 

Guest  V.  State,  19  Ark.  405     . 

Gumsey  v.  Lovell,  9  Wend.  819    . 

Guston  V.  People,  61  Barb.  35 ;  4  Lans.  487    . 


Arrest,  21,  23. 

Nolle  prosequi,  466. 

Continuance,  113. 

Trial,  597. 

Trial,  593. 

Insanity,  356. 

Larceny,  400. 

Arrest,  22. 

Homicide,  272. 

Embezzlement,    123;    Trial,    630,- 

Verdict,  640. 
Abatement,  2. 
Assault  and  battery,  47. 
Arrest,  21. 
Perjury,  501. 


H 


Hackett  v.  People,  54  Barb.  370 

Hadden  v.  People,  25  N.  Y.  373 

Haggerty  v.  People,  53  N.  Y.  476 ;  G  Lans.  332 

Haggett  V.  Com.  3  Mete.  457 

Hague  V.  State,  34  Miss.  616 

Haight  V.  People,  50  N.  Y.  392 

Haile  v.  State,  1  Swan,  248 

Hale  V.  State,  1  Cold.  Tenn.  167 

"  "       11  Humph.  154       . 

"  "       21  Ind.  268 

Halkem  v.  Com.  2  Va.  Cas.  4 
Hall  V.  People,  6  Parker,  671 
Hall  V.  State,  9  Fla.  203     . 
"     48  Ga.  607 

"  "      9  Ala.  827;  15  lb.  431 

"  "      40  Ala.  698 

"  "      8  Texas,  171 

"  "      11  Humph.  154 

"      34  Ga.  208 
"      8  Ind.  439 

"  "      3  Kelly,  18 


"  "      4  Harring.  132 

Halliday  v.  People,  4  Gilman,  111 

"        5  Gilman,  214       . 
Hallock  V.  State,  11  Ohio,  400      . 
Hall's  Case,  6  Leigh,  615         .... 

"      2  Gratt.  594  ... 

Halsey  v.  State,  1  South.  323 
Halstead's  Case,  5  Leigh,  724 
Hamblett  v.  State,  18  New  Hamp.  384 
Hamby  v.  State,  36  Texas,  523 ;  1  Green's  Cr.  Reps.  650. 


Homicide,  279,  392. 

Kidnapping,  371,  373. 

Escape,  125  ;  Sentence,  560. 

Sentence,  557. 

Homicide,  312. 

Evidence,  168 ;  Writ  of  error,  662. 

Homicide,  393,  313. 

Forgery  and  counterfeiting,  196. 

Homicide,  355. 

Trial,  631. 

Larceny,  399. 

Burglary,  94. 

Assault  and  battery,  49. 

Assault  and  battery,  54. 

Bail  and  recognizance,  64,  66. 

Evidence,  150 ;  Homic.  280,  304. 

Gaming,  245. 

Homicide,  275. 

Larceny,  413. 

Larc.407 ;  Trial,618, 626 ;  Verd.640. 

Indictment,  334;  Judgment,  363; 

Misdem.  437;  Sunday,  584. 
Sunday,  583. 

Abor.  7;  New  tri.  464;  Trial,  629. 
Pardon,  495. 
Perjury,  503. 
New  trial,  451. 
New  trial,  463. 

Extortion,  172;  Indictment,  335.. 
Spirituous  liquors,  sale  of,  573. 
Larceny,  389. 
Homicide,  267,  289,  301. 


TABLE  OF   CASES. 


711 


Title  of  Case  and  Report. 


Subject  and  Page. 


Hamilton  v.  Com.  16  Penn.  St.  129 
Hamilton  v.  People,  29  MicL.  173 

"  "         57  Barb.  62"j 

Hamilton  v.  State,  3G  Ind.  28)      . 
"  "      35  Miss.  214 

"  "      11  Ohio,  435 

Hamlett  v.  Com.  3  Gratt.  82 
Hampton  v.  State,  8  Ind.  336 

"  "       8  Humph.  69 

"  "       45  Ala.  83 

Hance  v.  State,  8  Fla.  56 
Haney  t.  State,  5  Wis.  529 
Hany  v.  State,  4  Eng.  193 
Hardin  v.  State,  26  Texas,  113 
Hardy  v.  Com.  17  C4ratt.  592 
Hardy  v.  State,  7  Mo.  607 
Hare  v.  State,  4  How.  Miss.  187 
Harlan  v.  People,  1  Doug.  207     . 
Harless  v.  U.  S.  1  Morris,  169 
Harman  v.  State,  3  Head,  243 
Harrall  v.  State,  26  Ala.  52      . 


Harrimau  v.  State,  2  Greene,  Iowa,  270 

Harrington  v.  People,  6  Barb.  608 

Harrington  v.  State,  19  Ohio,  N.  S.  264 

Harris  v.  People,  9  Barb.  664  ... 

"  "       6  N.  Y.  Supm.  N.  S.  206 

Harris  v.  Purdy.  1  Stewart,  231 
Harris  v.  State,  5  Texas,  11 

"  "     31  Ala.  362     . 

"  "47  Miss.  318  ;  1  Green's  Cr.  Reps.  601. 

Harrison  v.  People,  50  N.  Y.  518        . 
Harrison  v.  State,  2  Cold.  Teuu.  232 

"  "     24  Ala.  67  ... 

'•  "     37  Ala.  154 

Harrol  v.  State,  89  Miss.  702  ... 

Hart  V.  State,  20  Ohio,  49  .  .  . 

Hartman  v.  Com.  5  Barr,  60  ... 

Hartung  v.  People,  4  Parker,  319 

"  "        26  N.  Y.  167;  28  N.  Y.  400 

"  "        22  N.  Y.  95  ;  rev'g  4  Parker,  319 ; 

26  N.  Y.  107;  28  lb.  400     . 
Harvey  v.  Com.  23  Gratt.  941 ;  2  Green's  Cr.  Reps.  654. 
Harvey  v.  State,  40  Ind.  510 
Harwood  v.  People,  26  N.  Y.  190 
Haskill  v.  Com.  3  B.  Mon.  342 
Haskins  v.  People,  16  N.  Y.  344 
Haskins  v.  State,  11  Ga.  92  ... 

Hatcher  v.  State,  18  Ga.  460         . 


Homicide,  305. 

Evid.  168;  Magistrate,  429 ;  Trial, 

608;  Verd.  633;  Wit.  649,  659. 
Voting,  643,  644. 
Assault  and  battery,  44. 
Larceny,  382. 
Larceny,  385. 

Bail  and  recognizance,  59. 
Assault  and  battery,  42  ;  Forgery 

and  counterteiting,  205. 
Larceny,  397. 
Homicide,  303,  306. 
Assault  and  battery,  45. 
Sentence,  561. 
Gaming,  245. 
Assault  and  battery,  43. 
Robbery,  549. 
Trial,  625  ;  Verdict,  637. 
J^Tew  trial,  452. 

Forg.  and  counterf.  206,  211,  220. 
Gaming,  238. 

Assault  and  batt.  45  ;  Evid.  ISO. 
Indictment,    327;    Venue,  change 

of,  635,  036. 
Trial,  604,  631. 
Assault  and  battery,  45. 
Evidence,  151. 

Forgery  and  counterfeitiug,  196. 
Indictment,  338;  Perj'y,  505,  512. 
Verdict,  640. 
Gaming,  246. 
Gaming,  245. 
Homicide,  314. 
Larceny,  373. 
Assault  and  battery,  50. 
Homicide,  314. 

Relig.  meet.,  disturb,  of,  540,  541. 
Escape,  124. 

Forgery  and  counterfeiting,  213. 
Conspiracy,  105,  106. 
Evidence,  142 ;  Witness,  653. 
Former  acquittal  or  convict.  225. 

Statutes,  579,  580. 
Larceny,  388. 
Trial,  610,  613. 
Lasciviousness,  419. 
Spirituous  liquors,  sale  of,  576. 
Burgl.  92;  Evid.  159;  Larc.  404. 
Forg.and  coant.200,210;  Trial,  009. 
Assault  and  battery,  50. 


712 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Haught  V.  Com.  2  Va.  Cns.  3 
Hawkins  v.  Com.  14  B.  Men.  3£5 
Hawkins  v.  State,  13  Ga.  323 
"       7  Mo.  190 
"  "       1  Porter,  475 

Hay  den  v.  Com.  10  B.  Men.  125 

Hayden  v.  State,  4  Blackf.  546 

Hayen  v.  People,  3  Parker,  175     . 

Hayes  v.  People,  5  Parker,  325 ;  25  N.  Y.  300 

Haynes  v.  State,  5  Humph.  120     . 

Hays  V.  State,  13  Mo.  246        . 

Hayward,  Matter  of,  1  Sandford.  701 

Hazeu  v.  Com.  23  Peun.  St.  355 
Head  v.  State,  44  Miss.  731 
Heald  v.  State,  36  Maine,  62 
Heath's  Case,  1  Rob.  735 
Heed  v.  State,  25  Wis.  421      . 
Heilbonn,  In  re,  1  Parker,  429 

'■  "      9  Wend.  429 

Helfrich  v.  Com.  33  Penn.  St.  68 
Hembree  v.  State,  52  Ga.  242 
Hemmaker  v.  State,  12  Mo.  453 
Henderson  v.  Com.  8  Gratt.  708 
Henderson  v.  State,  14  Texas,  503 
Hendrick  v.  State,  6  Texas,  341 
Hendrick's  Case,  8  Leigh,  707 
Hendricks  v.  State,  26  lud.  493 
Hendrickson  agst.  People,  10  N.  Y.  13 
Henley  v.  State,  6  Ohio,  400 
Henrich,  In  re,  5  Blatchf.  414 
Henrie  v.  State,  41  Texas,  573 
Henry  v.  Com.  4  Bush,  Ky.  427 
Henry  v.  State,  18  Ohio,  32     . 

"  "       33  Ala.  389 

"       39  Ala.  679      . 

"  "       1  Cold.  Tenn.  331 

"  "       4  Humph.  270 

Hensley  v.  Com.  1  Bush,  Ky.  11  . 
Herber  v.  State,  7  Texas,  69 
Herd's  Case,  4  Leigh,  674 
Heme  v.  State,  39  Md.  552;  2  Green's  Crim.  Rep 
Herring  v.  State,  1  Iowa,  205 
Herriott  ads.  State,  1  McMullan,  126 
Herron  v.  State,  35  Texas,  285 
Hess  V.  State,  5  Ohio,  5     . 
Hiekey  t.  State,  23  Ind.  21    . 
Hicks  V.  People,  10  Mich.  395     . 
Higginbotham  v.  State,  23  Texas,  574 


Abatement,  1. 

Officer,  488. 
.      Affray,  17,  18. 

Evidence,  144. 

Former   acquittal   or    conviction, 
230;  Pardon,  495.  ■ 

Indictment,  350. 

Mayhem,  437. 

Writ  of  error,  662. 
.      Bigamy,  79,  80. 

Misdemeanor,  439. 

Spirituous  liquors,  sale  of,  568. 

Fugitives  fi'om  just.  235 ;  Habeas 
corpus,  252. 

Conspiracy,  102,  105. 

Homicide,  278,  301,  318. 

Sentence,  556. 

Homicide,  276  ;  Xew  trial,  446. 

Larceny,  409. 

Forgery  and  counterfeiting,  198; 
Fugit.  from  justice,  232,  235. 

Habeas  corpus,  252. 

Adultery,  12. 

Perjury,  507. 

Larceny,  385. 

Misdemeanor,  438. 

Forgery  and  counterfeiting,  197. 
.      Trial,  593. 

Forg.  and  counterf.  202,  211,  221. 

Peijur\',  508. 

Homicide,  284. 
.      Verdict,  638. 

Fugitives  from  justice,  233,  234. 

New  trial,  445. 

Indictment,  328. 

Assault  and  battery,  48. 

Form.acq.  or  conv.  231 ;  Trial,  593. 

Larceny,  380. 

Larceny.  386. 
,      Trial,  596. 

Larceny,  403. 
.       New  trial,  441,  458,  459. 

Gaming,  243. 
394.  Assault  and  battery,  39. 
.       Trial,  627. 

Dueling,  116,  117. 

Gaming,  242. 

Ev.  133 ;  For.  &  coun.  204, 205,321. 

Larceny,  376,  399. 

Incest,  334. 

Assault  and  battery,  33. 


TABLE  OF   CASES. 


713 


Title  of  Case  and  Report. 


Subject  and  Page. 


Higgins  V.  People,  7  Lans.  110. 

"  "       8  N.Y.  Supm.N.S.307;58N.Y.  377. 

Higgins  V.  State,  7  Ind.  549 
Hildebrand  v.  People,  56  N.  Y.  394 ;  3  N.  Y.  Supm. 

N.  S.  82;  8  11).  19  .     «       . 

Hill  v.  Com.  2  Gratt.  594 
Hill  V.  People,  10  N.  Y.  4(53  . 

"  "         20  N.  Y.  363 

"  "  16  Mich.  851  . 

Hill  V.  State,  1  Yerg.  76     . 

"  "41  Ga.  484 

"  "      1  Head,  454 

"  "4  Sneed,  443      . 

*'  "43  Ala.  335 

"      3  Heisk.  317 

"  "17  Wis.  675 

Hill's  Case.  2  Gratt.  594 
Hiuch  V.  State,  25  Ga.  699 
Hinderer  v.  State,  38  Ala.  415 
Hines  v.  State,  8  Humph.  597 

"  "       24  Ohio,  N.  S.  134      . 

Hinkle  v.  Com.  4  Dana,  519 
Hinton  v.  State,  24  Texas,  454 
Hiss  V.  State,  24  Md.  556 
Hitchcock  V.  Grant,  1  Root,  107 
Hite  V.  State,  9  Yerg.  357 

"  "       9  Yerg.  382       . 

Hitesman  v.  State,  48  Ind.  473 
Hittner  v.  State,  19  Ind.  48    . 
Hobbs  V.  State,  9  Mo.  845 
Hoberg  v.  State,  3  Minn.  262 
Hobson  V.  State,  44  Ala.  381 
Hochrieter  v.  People,  2  N.  Y.  Ct.  of  App.  Decis.  363; 

1  Keyes,  66  .  .  . 

Hock  V.  People,  3  Mich.  552 
Hodges  V.  State,  5  Humph.  112 
Hodgins  v.  State,  2  Kelly,    173     . 
Hodgman  v.  Peoijle,  4  Denio,  235 
Hoffler  V.  State,  16  Ark.  534 
Hogan  V.  People,  2  N.  Y.  Supm.  N.  S.  535 
Hogan  V.  State,  46  Miss.  274 
Hogg  V.  State,  3  Blackf.  226 
Holcomb  V.  Cornish,  8  Conn.  375 
Holden  v.  State,  5  Ga.  441     . 
Holland  v.  State,  12  Fla.  117 
Holler  V.  State,  37  Ind.  57       . 
HoUingsworth  v.  State,  5  Sneed,  518 
Holly  V.  State,  10  Humph.  141 
Holman  v.  State,  8  Eng.  105 
Holmes  v.  Com.  25  Peun.  St.  221 


Larceny,  403. 
Rape,  523,  525,  526. 
Breach  of  the  peace,  84. 

Lar.  374 ;  Writ  of  error,  663,  664. 

Homicide,  274,  277,  288,  292,  295. 

Certiorari,  97;  Writ  of  error,  661. 

Jury,  369. 

Trial,  603. 

False  pretenses,  177. 

Homicide,  300. 

Larceny,  393. 

Nuisance,  473. 

Malicious  mischief,  429. 

Rape,  521. 

Trial,  605,  610;  Witness,  655. 

New  trial,  465. 

Homicide,  279. 

Embezzlement,  119. 

New  trial,  454. 

Trial,  628. 

Gaming,  238,  244. 

Homicide.  315. 

Larceny,  374. 

Bastardy,  74. 

Former  acquittal  or  convict.  226. 

Indictment,  348,351 ;  Larceny, 372. 

Perjury,  509. 

Homicide,  309. 

Forgery  and  counterfeiting,  20 i. 

New  trial,  447  ;  Trial,  626. 

Malicious  mischief,  429. 

Evidence,  139;  Trial,  007. 

Perjury,  508. 

Libel,  422. 

New  trial,  441. 

Spirituous  liquors,  sale  of,  574. 

Assault  and  battery,  55. 

Voting,  644. 

Trial,  617. 

Larceny,  402. 

Profane  swearing,  517. 

Homicide,  304. 

Homicide,  277,  280,  301. 

Homicide,  291. 

Religious  meeting,  disturb,  of,  540. 

Homicide,  307. 

New  trial,  458. 

Accessory,  10;  Trial,  6)3. 


714 


TABLE  OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Holmes,  Ex  parte,  12  Vt.  631 
Holmes  v.  Jennison,  14  Pet.  540  . 
Holmes  v.  People,  5  Oilman,  478 
Holmes  v.  State,  1  Iowa,  150 

"  "      23  Ala.  17 

Holsenbake  v.  State,  45  Ga.  43 
Holton  V.  State,  2  Fla.  476,  500 
Hood  V.  State,  44  Ala.  81 
Hook,  Matter  of,  55  Barb,  257 
Hooker  v.  Com.  13  Gratt.  763       . 
Hooper  v.  State,  8  Humph.  93 
Hope  V.  Com.  9  Mete.  134 
Hopkins  v.  Com.  50  Pean.  St.  9 
Hopkins  v.  People,  12  Wend.  76 
Hopkins  v.  Plainfield,  7  Conn.  286     . 
Hopkins  v.  Walter,  11  111.  542     . 
Hopkinson  v.  People,  18  III.  264 
Hopper  V.  Com.  6  Gratt.  684 
Hopps  V.  People,  31  111.  385 
Hopson,  Matter  of,  40  Barb.  34  . 
Home  V.  State,  5  Ark.  349     . 
"      37  Ga.  80 

"  "1  Kansas,  42  . 

Horton  v.  State,  32  Texas,  79 

"       8  Eng.  62      . 

"  "       47  Ala.  58 

Hoskins  v.  Tarrance,  5  Blackf.  417     . 
Hostetter  v.  Com.  12  B.  Mon.  1    . 
Houghtaliug  v.  Kelderhouse,  1  Parker,  241 
Houghton  V.  Bachman,  47  Barb.  388 
Houser  v.  People,  46  Barb.  33 
Houston  V.  People,  63  111.  185 
Houston  V.  State,  38  Ga.  165 
"  "       8  Eug.  66 

"  "       4  Greene,  437 

Howard  v.  State,  11  Ohio,  N.  S.  328 

32Ind.  478 
Howe  V.  State,  10  Ind.  492 
Howell  V.  Com.  5  Gratt.  664    . 

Howell  V.  People,  13  N.  Y.  Supm.  N.  S.  620 
Howell  V.  State,  5  Ga.  48 

37  Texas,  591 
Howerton  v.  State,  Meigs,  262 
How-ie  V.  State,  1  Ala.  113 
Howlet  V.  State,  5  Yerg.  145 
Hoye  V.  State,  39  Ga.  718 

Hoyt  V.  State,  50  Ga,  313 
Hudson  V.  State,  1  Blackf.  317 


Fugitives  from  justice,  233. 
Fugitives  from  justice,  233. 
Writ  of  error,  662. 

Bastardy,  75. 

Homicide,  318;  Trial,  614, 

Evidence,  149. 

Trial,  605,  626, 

Perjury,  499,  507, 

Disorderly  person,  116. 

Arson,  34;  Trial,  605. 

Forgery  and  counterfeiting,   203. 

Larceny,  395. 

Homicide,  284, 

Receiving  stolen  property,  535. 

Bastardy,  73. 

Bail  and  recognizance,  71, 

Homicide,  819. 

Witness,  655, 

Insanity,  355,  357,  358,  359. 

Jurisdiction,  367. 

Forgery  and  counterfeiting,  196. 

Trial,  610, 

Trial,  619. 

Forgery  and  counterfeiting,  201. 

Gaming,  245. 

Grand  jury,  248 ;  Trial,  604. 

Larceny,  384. 

Bail  and  recognizance,  59. 

Pardon,  495 ;  Witness,  652. 

Officer,  489. 

Indictment,  342. 

Xuisance,  481. 

Burglary,  93. 

Larceny,  404, 

Trial,  620, 

Rape,  521, 

Witness,  658, 

Malicious  trespass,  434. 

Arson,  26;   Trial,   609;    Witness, 
656,  659. 

Verdict,  638. 

Assault  and  battery,  56. 

Forgery  and  counterfeiting,  200. 

New  trial,  446. 

Bail  and  recognizance,  64. 

Gaming,  238. 

Continuance,  112;  Homicide,  290; 
New  trial,  459, 

Embezzlement,  121. 

Gr.  jury,  247;  Homicide,  272  ;  In- 
dictment, 346;  Trial,  595, 


TABLE  OF  CASES. 


715 


Title  of  Case  and  Report. 


Subject  and  Page. 


Hudson  V.  State,  9  Yerg.  408 

Huflfman  v.  Com.  6  Rand.  685  .  .  , 

Huffiuan  v.  State,  29  Ala.  40;  28  lb.  48;  30  lb.  532 
Huggins  V.  State,  41  Ala.  893       . 


Hughes  V.  Com.  17  Gratt.  565 
Hughes  V.  State,  12  Ala.  458 
"  "      1  Eng.  132     . 

"      35  Ala.  351 
"  "8  Humph.  75 

"  "4  Iowa,  554 

Haling  v.  State,  17  Ohio,  N.  S.  583 
Hull  V.  Hull,  2  Strobh.  Eq.  174     . 
Hull  V.  State,  22  Wis.  580 
Hummel  v.  State,  17  Ohio,  N.  S.  628 
Humphreys  v.  State,  45  Ga.  100 

Hunt  V.  Com.  13  Gratt.  737 
Hunt,  Exparte^  5  Eng.  284      . 
Hunt  V.  People,  3  Parker,  509       . 
Hunt  V.  State,  23  Ala.  44 
Hunter  v.  People,  1  Scam.  453 
Hunter  v.  State,  29  Ind.  80      . 

"       1  Head,  160 
Hunter's  Case,  7  Gratt.  641     . 
Huntington  v.  Schultz,  Harper,  453 
Hurd  V.  People,  25  Mich.  405 

Hurd  V.  Seeker,  12  Vt.  364 
Hurd's  Case,  5  Leigh,  715 
Hurell  V.  State,  5  Humph.  08 
Hussy  V.  People,  47  Barb.  503 
Hutching  v.  People,  39  N.  Y.  454 
Hutchins  v.  State,  28  Ind.  34 

"  "       12  Ohio,  198     . 

Hyde  v.  Chapin,  2  Cush.  77     . 
Hyde  v.  State,  16  Texas,  445 


Larceny,  405;  New  trial,  461. 
Forgery  and  counterfeiting,  210. 
Gaming,  240;  Trial,  618,  620. 
Evidence,  139;    Receiving  stolen 

property,  536,  539. 
Larceny,  402. 
Accessory,  9. 
Escape,  124. 

Evidence,  129;  Trial,  612. 
Larceny,  406,  408. 
Sentence,  555. 
Grand  jury,  247. 
Adultery,  12. 
Rape,  529. 
Larceny,  390. 
Insanity,  355 ;    Intoxication  as  an 

excuse  for  crime,  360. 
Larceny,  380. 
Pardon,  494. 

Evidence,  136,  140;  Homicide,313. 
Homicide,  314. 
Venue,  change  of,  635. 
Burglary,  91. 

Unwholesome  pro v'us,  sale  of,  631. 
Evidence,  138. 
Arrest,  19,  20. 
Homicide,    289,    292,    317,    321  ; 

Trial,  008. 
Bastardy,  70. 
Continuance,  112. 
Receiving  stolen  property,  535. 
Assault  and  battery,  47. 
Gaming,  237. 
Bigamy,  78. 

Forgery  and  counterfeiting,  213. 
Bastardy,  72. 
Continuance,  112. 


Ike  v.  State,  23  Miss.  525 
lilies  V.  Knight,  3  Texas,  312 
Ingram  v.  State,  27  Ala.  17 
"  '-7  Mo.  293 

Innis  V.  State,  42  Ga.  473 
Irby  Y.  State,  32  Ga.  490   . 
Isaac  V.  State,  2  Head,  458 
Isaacs  V.  State,  48  Miss.  234 


Indictment,  343. 
Malicious  mischief,  429. 
Bail  and  recognizance,  69. 
Bill  of  exceptions,  83. 
Rape,  527. 
Homicide.  309. 
Trial,  004. 
Conspiracy,  102. 


716 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Isely  V.  State,  8  Blackf.  403 
Israel's  Case,  4  Leigh,  675 
Ivey  V.  State,  13  Ala.  276 


Subject  and  Page. 


Gaming,  246. 

Indictment,  346  ;  Trespass,  589. 

Dueliuo-,  117. 


Jackson  v.  Com.  23  Gratt.  D19  ;  2  Green's  Cr.  R. 
Jackson  v.  People,  2  Scam.  231 
Jackson  v.  State,  51  Ga.  402 
"  "       4  Ind.  560 

"  "       n  Ohio,  N.  S.  104 

"  "       14  Ind.  327 

"1  Carter,  189    . 
"  "       45  Ga.  198 

"  "       21  Ind.  79 

Jackson  v.  Weisiger,  2  B.  JMon.  214    . 
Jacob  V.  State,  3  Humph.  493 
Jacobs  V.  Com.  5  Serg.  &  Rawle,  315 
James  Eagan,  Matter  of,  6  Parker,  675 
James  v.  State,  45  Miss.  572   , 
Jane  v.  Com.  2  Mete.  Ky.  30 
Jane  v.  State,  3  Mo.  61 
Jarnagiu  v.  State,  10  Yerg.  529     . 
Jeffries  v.  Com.  12  Alien,  145 
Jeffries  v.  State,  40  Ala.  381 
Jenkins,  Ex  parte,  2  Wall.  Jr.  521 
Jenkins  y.  State,  41  Miss.  582 
Jenks  V.  State,  39  Ind.  1 
Jenning  v.  Com.  17  Pick.  80 
Jennings  v.  Com.  105  Mass.  586 
Jennings  v.  State,  9  Mo.  852 
Jerry  v.  State,  1  Blackf.  395    . 
Jhons  V.  People,  25  Mich.  499 
Jim  V.  State,  15  Ga.  535 

"  "4  Humph.  289 

John  V.  State,  1  Ala.  95 
"  "      23  Wis.  504 

"  "      24  Miss.  569      . 

"  "      3  Ala.  290  . 

Johns  V.  State,  19  Ind.  421     . 
Johnson  v.  Com.  9  Bush,  224 

"24  Gratt.  555 
Johnson  v.  People,  22  111.  314 
"  "4  Denio,  364 

"  "        65  Barb.  342    . 

"  "        55K  Y.  512 

Johnson  v.  Randall,  7  Mass.  340  . 
Johnson  v.  State,  48  Ga.  116  . 
"  "       17  Texas,  515    . 

"  "35  Ala.  363 


650.      Witness,  657. 
Bigamy,  79. 

Assault  and  battery,  53,  54. 
.      Gaming,  246. 

Larceny,  384. 

Larceny,  399. 

Perjury,  504. 
.      Trial,  630. 

Trial,  631. 
.      Libel,  421. 

Homicide,  305. 

Indictment,  330. 

Jurisdiction,  368. 

Sentence,  555. 

Evidence,  148;  Trial,  619. 

Indictment.  333. 

New  trial,  453,  460. 

Sentence,  555. 

Former  acquittal  or  convic.  231. 
.'     Habeas  corpus,  350,  351,  353. 

Larceny,  410. 

Continuance,  113. 

Indictment,  326 ;  Nuisance,  475. 

Larceny,  415. 

Assault  and  battery,  49. 

Indictment,  327 ;  Homicide,  269. 

Bill  of  exceptions,  82. 

Evidence,  143;  New  trial,  447. 

Verdict,  638. 

Certiorari,  96. 

F(n-gery  and  counterfeiting,  201. 

Indictment,  348. 

Sentence,  554;  Venue,  ch.  of,  634. 

Accessory,  9. 

Evidence,  163. 

Larceny,  376. 

Conspiracy,  102. 

Larceny,  403. 

Larceny,  410. 

Larceny,  413. 

Bastardy,  75. 

Arson,  24,  30;  Evidence,  131. 

Assault  and  battery,  33. 

Assault  and  battery,  42,  43. 


TABLE  OF  CASES. 


7J7 


Title  of  Case  and  Report. 

Subject  and  Page. 

Johnson 

V.  State,  .SO  Ga.  426 

Assault  and  battery,  48. 

u 

"       14  Ga.  55     . 

Assault  and  battery,  49 ;  New  trial, 
449;  Witness,  657. 

(( 

''       2  Dutch.  313 

Conspiracy,  102,  105;  Misdemean- 
or, 440. 

(1 

"       29  Ala.  62    . 

Conspiracy,  108 ;  False  pretenses, 
189;  Indictment,  340. 

11 

"       46  Ga.  269  . 

Evidence,  127. 

u 

"       44  Ala.  414 

Evidence,  127. 

<1 

"       17  Ala.  618 

Evidence,  132,  135,  153. 

(t 

"       41  Texas,  65      . 

False  pretenses,  175. 

" 

"       11  Ind.  481  . 

False  pretenses,  180. 

n 

"       7  Mo.  188 

. 

Felony,  190. 

t( 

"       35  Ala.  370  . 

Forgery  and  counterfeiting,  205, 
216,  220,  222. 

\        u 

"       4  Sneed,  614 

Gaming,  236. 

l( 

"       8  Ga.  451 

Gaming,  238. 

11 

"       19  Ala.  527 

Gaming,  289. 

il 

"       8  Eng.  684         .         ,  . 

Gaming,  245. 

u 

"       47  Ala.  9      . 

Homicide,  295. 

(( 

"       27  Texas,  758     . 

Homicide,  309. 

l( 

"       46  Ala.  212 

Indictment,  351. 

l( 

"       86  Texas,  375  ;  1  Green's  Or.  R 

347. 

Larceny,  381. 

11 

"       39  Texas,  398 

Larceny,  887. 

u 

"       47  Miss.  671 ;  1  Green's  Cr.  R. 

341. 

Larceny,  895. 

(1 

"       37  Ala.  457 

Malicious  mischief,  433. 

l( 

"       17  Ohio,  593      . 

Rape,  524. 

It 

"       47  Ala.  10,  62 

Trial,  604. 

(( 

"      4  Greene,  65 

Witness,  649. 

Johnson 

V.  U.  S.  3  McLean,  89 

Habeas  corpus,  249,  252;  Indict- 
ment, 348. 

Johnston  v.  Com.  1  Bibb,  598 

Writ  of  error,  662. 

Johnston  v.  State,  7  Smed.  &  Marsh.  58  . 

Gaming,  242. 

u 

"       1  Mart.  &  Yerg.  129 

Gaming,  245. 

Johnston's  Case,  5  Gratt.  680 

Homicide,  259. 

Jones'  Case,  2  Gratt.  555 

Information,   354 ;  Misdem'r,  440. 

Jones  V. 

Com.  75  Penn.  St.  408     . 

Intoxication  as  an  excuse,  360. 

a 

"      17  Gratt.  568    . 

Larceny,  402. 

Jones  V. 

Hungerferd,  4  Gill  &  Johns.  402 

Arson,  25. 

Jones  V. 

People,  6  Parker,  126 

Burglary,  94 ;  Witness,  648. 

Jones  V. 

Rice,  18  Pick.  44a 

Misdemeanor,  438. 

Jones  ag 

St.  Spicer,  6  Cow.  391 

Habeas  corpus,  252. 

Jones  V. 

State,  11  Sraed.  &  Marsh.  815     . 

Assault  and  battery,  51. 

(( 

"      11  New  Hamp.  269      . 

Burglary,  91,  92. 

(( 

"      5  Sneed,  346 

Forgery  and  counterfeiting,  215. 

(( 

"      11  Ind.  357       . 

Forgery  and  counterfeiting,  215. 

u 

"      15Ark.  2G1 

Former  acquittal  or  convic.  223. 

11 

"      26  Ala.  155       . 

Gaming,  245. 

1 1 

"      2Blackf.  475 

Grand  jury,  247;  Trial,  594,  612. 

1( 

"      35  Ind.  122       . 

Homicide,  267. 

il 

"      14  Mo.  409 

Homicide,  810. 

718 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Jones  V.  State,  6  Humph.  435 
"  "      29  Ga.  594 

"  "      13  Ala.  15.3 

"  "      49Ind.  549 

"  "30  Miss.  653 

"  "      1  Kelly,  610 


48  Ga.  163 ;  2  Green's  Crim.  Rep.  586 
3  Heisk.  445     . 


Jordan  v.  Com.  25  Gratt.  943 
Jordan  v.  State,  32  Miss.  383  . 
Joseph  V.  State,  5  How.  Miss.  20  . 
Josslyn  V.  Com.  6  Mete.  236    . 
Juaraqui  v.  State,  28  Texas,  625  . 
Judge  V.  Kerr,  17  Ala.  328       . 
Judge  V.  State,  8  Ga.  173  . 
Judson  V.  Blanchard,  4  Conn.  557 
Jumpertz  v.  People,  21  111.  375 
Jupitz  V.  People,  34  111.  516     . 


Indictment,  352. 

Intoxication  as  an  excuse,  360. 

Larceny,  394 

Larceny,  407. 

Larceny,  409. 

New  trial,  441;  Trial,  591;  Wit- 
ness, 650. 

New  trial,  459. 

Rape,  530. 

Robbery,  546. 

E\'idence,  148. 

Indictment,  329:  Trial,  593. 

Burglary,  91,  95. 

Perjury,  505. 

Bastardy,  72. 

Trial,  609,  611. 

Bastardy,  74. 

Evidence,  134,  282,  292. 

Evidence,  150;  Receiving  stolen 
property,  538 ;  Trial,  621. 


K 


Kain  v.  State,  8  Ohio,  306 
Kalle  V.  People,  4  Parker,  591 
Kanavan's  Case,  1  Maine,  226 
Kane,  In  re,  14  How.  U.  S.  103    . 

Kane  v.  People,  8  Wend.  203  . 

"  "       3  Wend.  363  . 

Kaufman  v.  State,  49  Ind.  248 
Kavanaugh  v.  State,  41  Ala.  399 
Kawich  v.  Davis,  4  Ala.  328 
Kazer  v.  State,  5  Ham,  280     . 
Kean  v.  Com.  10  Bush,  190 
Keaton  v.  State,  7  Ga.  189      . 
Keator  v.  People,  32  Mich.  484     . 

Keefe  v.  People,  40  N.  Y.  348 
Keefe  v.  State,  19  Ark.  190 
Keefer  v.  State,  4  Ind.  246 
Keef haver  v.  Com.  2  Penn.  240     . 
Keenan  v.  Com.  44  Penn.  St.  55 
Kegg  V,  State,  10  Ohio,  75 
Keithler  v.  State,  10  Sm.  &  Marsh. 
Kellenbeck  v.  State,  10  Md ,  431  . 
Keller  v.  State,  12  Md,  322      . 
Kelley  v.  People,  55  N.  Y.  565      . 
Kelley  v.  Wright,  1  Root,  83  . 


193 


Homicide,  268, 

Trial,  609, 

Dead  body,  115;  Misdemean.  437. 

Fugitives  from  justice,  233  ;  Ha- 
beas corpus,  250. 

Indictment,  352;  Nuisance,  473; 
Sentence,  557. 

Indictment,  353. 

Evidence,  166. 

Escape,  125. 

Bastardy,  74, 

Arson,  31, 

Evidence,  135. 

New  trial,  450, 

Evidence,  169;  Perjury,  503,  509; 
Witness,  659. 

Verdict.,  639. 

Assault  and  battery,  33, 

Larceny,  397, 

Bail  and  recognizance,  68. 

Intoxication  as  an  excuse,  361. 

Forgery  and  counterfeiting,  203. 

Accessory,  9;  New  trial,  449,  462. 

Arson,  26. 

Statutes,  580. 

Conspiracy,  109;  Evidence,  153. 

Arrest,  21. 


TABLE   OF   CASES. 


719 


Title  of  Case  and  Report. 


Subject  and  Page. 


Kelly  V.  People,  13  N.  Y.  Siipm.  N.  S.  509 
Kelly  V.  State,  3  Smed.  &  Marsh.  518 


Kelsoe  v.  State,  47  Ala.  573    .... 
Kendrick  v.  State.  10  Humph.  479 
Kennedy  v.  Com.  3  Bibb,  490  , 
"  "      2  Mete.  Ky.  36  . 

"      2Va.  Cas.  510 
Kennedy  v.  People,  39  N.Y.  345  ;  6  N.  Y.  Tr.  of  Ap.  19. 

"  "         44  111.  283 

Kenney  v.  State,  5  R.  I.  385  . 

Kenniston  v.  Powe,  16  Maine,  38        . 
Kenny  v.  People,  31  N.  Y.  330     . 
Kenyon  v.  People,  26  N.  Y.  203;  5  Parker,  254 
Kerr  v.  People,  42  111.  307       . 
Kerah  v.  State,  24  Ga.  191 

Key  V.  Com.  3  Bibb,  495 
Kilbourn  v.  State,  9  Conn.  500     . 
Kilpatrick  v.  Com.  31  Penn.  St.  198  . 
Kilpatrick  v.  People,  5  Denio,  277 
Kinchelow  v.  State,  5  Humph.  9 
King  V.  Com.  2  Va.  Cas.  78 
King  V.  People,  12  N.  Y.  Supm.  N.  S.  297 
King  V.  State,  40  Ala.  314. 

"  "5  How.  Miss.  750 

"  "2  Carter,  523 

Kingen  v.  State,  50  Ind.  557   . 
>'      45  Tnd.  519 
"  "      46  Ind.  132     . 

Kingsbury  agst.  Clark,  1  Conn.  406 
Kingsbury's  Case,  106  Mass.  223 
Kinney  v.  People,  2  Gilman,  540  . 
Kinney  v.  State,  38  Ala.  224    . 
Kirby  v.  State,  3  Humph.  289 

"  '•      2Yerg.  383      . 

Kirk  V.  State,  13  Smed.  &  Marsh.  406 

"  "      14  Ohio,  511      . 

Kirkland  v.  State,  43  Ind.  146;  2  Green's  Cr.  R.  706 
Kirschner  v.  State,  9  Wis.  140 
Kirsey  v.  Fike,  29  Ala.  206      . 
Kit  V.  State,  11  Humph.  167 
Kite  V.  Com.  11  Mete.  581 
Klein  v.  People,  31  N.  Y.  229 
Kline  v.  Rickert,  8  Cow.  226  . 
Kluget  V.  State,  1  Kansas,  365      . 
Klum  V.  State,  1  Blackf.  377  . 
Knickerbocker  v.  People,  43  N.  Y.  177 


Larceny,  378. 

Indictment,    334 ;    Insanity,    356 ; 
Intoxication   as   au   excuse   for 
crime,  360  ;  Sentence,  558,  559. 
Evidence,  136,  139;  Homi.  280. 
Evidence,  135. 
Assault  and  battery,  39. 
Forgery  and  counterfeiting,  305. 
New  trial,  446. 
Evidence,   161;    Indictment,  331; 

Homi.  269,  373,  282,  290,  303. 
Trial,  610. 

Commitment,  99,  100. 
Bastardy,  72,  75. 
Intoxication  as  an  excuse,  360. 
Seduction,  552. 
Perjury,  507. 
Forcible  entry  and  detainer,  194; 

Indictment,  335. 
Bail  and  recognizance,  71. 

Information,  354. 

Homicide,  277. 
Trespass,  589. 

Evidence,  158. 
Homicide,  305. 

Trial,  611. 

Homicide,  285. 

Homicide,    304;  Trial,   594,    601. 

Indictment,  341. 

Evidence,  136. 

Homicide,  319;  Trial,  624. 

New  trial,  444. 

Bail  and  recognizance,  70. 

Fugitives,  234. 

Trial,  593. 

Religious  meeting,  disturb,  of,  540. 

Evidence,  127;  New  trial,  463. 

Homicide,  289. 

Indictment,  328. 

New  trial,  452. 

Assault  and  battery,  33. 

Evidence,  131. 

Larceny,  378. 

Robbery,  547. 

Sentence,  557,  560. 

Verdict,  040. 

Forcible  entry  and  dct'r,  191,  194. 

Trial,  592. 

Affray,  17. 

Larceny,  407. 


720 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Knot  V.  Gay,  1  Root.  CG 
Knowles  v.  People,  15  Midi.  408  . 
Knowlesv.  State,  3  Day,  103  . 
Koontz  V.  State,  41  Texas,  570     . 
Koop  V.  People,  47  111.  327      . 
Kriel  v.  Com.  5  Bush,  3G2  . 

Kruget  V.  State,  1  Kansas,  365 
Kuckler  v.  People,  5  Parker,  213 
Kunkle  v.  State,  32  lud.  220    . 


Arrest,  20. 

Evidence,  154,  159. 

Indictment,  346,  353,  354. 

Indictment,  336. 

Spirituous  liquors,  sale  of,  567. 

Insanity,  355 ;  Intoxication  as  an 

excuse  for  crime,  361. 
Assault  and  battery,  50. 
Statutes,  580. 
Assault  and  bat.  48 ;  Trespass,  589. 


La  Beau  v.  People,  6  Parker,  371  ;  affi'd  34  N.  Y.  223. 

Lacy  V.  State,  45  Ala.  80  ...  . 

La  Jeune  Eugenie,  2  Mason,  409  . 

Lake  v.  People,  1  Parker,  495 ;  affi'd  12  N.  Y.  358    . 

Lambert  v.  People,  7  Cow.  103 

9  Cow.  577      . 

"  "        29  Micb.  71  .  .  . 

Lambert  v.  State,  23  Miss.  323 

Lambert's  Case,  9  Leigh,  603    .... 
Lambertson  v.  People,  5  Parker,  200 
Lampson  v.  Landon,  5  Day,  508 
Lane  v.  Com.  59  Penn.  St.  371 

Lane  v.  State,  16  Ind.  14  ...  . 

Lanergan  v.  People,  6  Parker,  209 ;  50  Barb.  266  ;  39 

N.  Y.  39  . 


Lange,  Ec  parte,  18  AVallace,  163;  2  Green's  C.  R.  103. 
Langtry  v.  State,  30  Ala.  536  . 
Lanham  v.  Com.  3  Bush,  Ky.  528 
Lankin  v.  State,  42  Texas,  415 
Laport  V.  State,  6  Mo.  2  J8 
Larkin  v.  People,  61  Baib.  226 
Larned  v.  Com.  12  Mete.  240 
Laughlin  v.  State,  18  Ohio,  99 
Lawrence  v.  State,  4  Yerg.  145     . 
Lawson  v.  Buzines,  3  Ilarring.  416     . 
Lawson  v.  State,  30  Ala.  14 
,     "       20  Ala.  65 
Lawton  v.  Sun  Mut.  Ins.  Co.  2  Cush.  500 
Leake  v.  State,  10  Smed.  &  Marsh.  144 
Leary  v.  State,  6  Black  f.  403 


Homicide,  266,  272,  284 ;  Witness, 
654,  657. 

Rape,  523. 

Slave  trade,  561,  564. 

Evidence,  169;  Homicide,  269, 
273,  282 ;  Insanity,  357,  359. 

Certiorari,  97. 

Conspiracy,  104,  105;  False  pre- 
tenses, 182. 

Robbery,  548. 

Homicide,  292,  294,  297. 

Dueling,  117. 

Sodomy,  565. 

Arrest,  22. 

Trial,  619. 

Forgery  and  counterfeiting,  221. 

Evidence,  136,  152;  Homicide, 
256;  Indictment,  338;  Intoxic. 
as  an  excuse,  360,  361,  362. 

Habeas  corp.  250 ;  Sentence,  559. 

Bigamy,  80. 

New  trial,  449. 

Larceny,  394. 

Venue,  change  of,  636. 

Jurisdiction,  366. 

Burglary,  90,  91. 

Rape,  524 ;  Witness,  653. 

Larceny,  401. 

Arrest,  20. 

Assault  and  battery,  32. 

Lasciviousness,  418,  419,  420. 

Barratry,  71. 

New  trial,  463. 

Extortion,  172. 


TABLE   OF   CASES. 


721 


Title  of  Case  and  Report. 


Subject  and  Page. 


Leary  v.  State,  39  Ind.  544     .  .  .  s 

Lee  V.  State,  42  Ind.  153    . 

"  "       1  Cold.  Tenn.  C3  .  .  . 

"  "26  Ark.  2G0  ... 

Leeper  v.  Com.  Litt.  Sel.  Cas.  103      . 
Leggett  V.  State,  15  Ohio,  283       . 
Leiber  v.  Com.  9  Bush,  11       . 
Leland,  Matter  of,  7  Abb.  N.  S.  64 
Lemons  v.  State,  4  West  Va.  755 ;  1  Green's  Crim. 
Reps.  667  .  .  .  .  . 

Lenahan  v.  People,  5  N.  Y.  Sapm.  N.  S.  265 
Leobold  v.  State,  83  Ind.  484  ... 

LeoTii  V.  State,  44  Ala.  110 
Lesslie  v.  State,  18  Ohio,  N.  S.  390    . 
Lester  v.  State,  9  Mo.  658 

Lever  v.  Com.  15  Serg.  &  Rawle,  93  . 
Leving  v.  State,  13  Ga.  513 
Lewelling  v.  State,  18  Texas,  538 
Lewis  V.  State,  3  Head,  127 

"      33  Ga.  131       . 
"  "      16  Conn.  32 

"     9  Smed.  &Marsh.  115 

"     30  Ala.  54         .  .  . 

"     41  Ala.  414 
Lewis  V.  United  States,  1  Morris,  199 
Lightfoot  V.  People,  16  Mich.  507 
Liles  V.  State,  30  Ala.  24         .  . 

Lindenmuller  y.  People,  33  Barb.  548 
Lindsay  v.  Com.  2  Va.  Cas.  345 
Lindsay  v.  State,  15  Ala.  43 
Lindsley  v.  People,  6  Parker,  233 
Linker's  Case,  9  Leigh,  608 
Linnay  v.  State,  6  Texas,  1     . 
Lisle  V.  State,  6  Mo.  426    . 
Litbgow  V.  Com.  2  Va.  Cas.  297 
Little  V,  Com.  25  Gratt.  921 
Littlejohn  v.  Com.  2  Va.  Cas.  297      . 
Livingston  v.  Com.  14  Gratt.  592 
Locke  V.  State,  3  Kelly,  534   . 

"       32  New  Hamp.  106 
Lockett  V.  State,  47  Ala.  42  ;  1  Greens  Crim.  Reps.  461. 
Lodano  v.  State,  25  Ala.  64     . 
Loeffner  v.  State,  10  Ohio,  K  S.  598 
Logan  V.  State,  24  Ala.  183     . 
Logan's  Case,  5  Gratt.  693 
Logue  V.  Com.  38  Penn.  St.  265 
Lohman  v.  People,  1  Comst.  379;  3  Barb.  216 
Long  V.  Rogers,  17  Ala.  540    . 
Long  V.  State,  1  Swan,  287 

11  Fla.  295      . 
46 


Nuisance,  478. 

Former  acquittal  or  coavic.  231. 

Homicide,  262,  306. 

Trial,  606. 

Bail  and  recognizance,  70. 

Larceny,  411. 

Homicide,  292. 

Fugitives  from  justice,  234. 

Evidence,  170;  Witness,  660. 

Evidence,  126. 

False  pretenses,  184. 

Rape,  524. 

Former  acquittal  or  convic.  225. 

Homicide,  265,  266 ;  New  trial,  449, 

458. 
Larceny,  374. 
New  trial,  459. 

Gaming,  242;  Indictment,  341. 
Arrest,  22;  Homicide,  256. 
Assault  and  battery,  47. 
Burglary,  91. 

Homicide,  294 ;  Trial,  597. 
Rape,  519. 
Toll,  586. 

Spirituous  liquors,  sale  of,  566. 
Burglary,  94;  Evidence,  167. 
Homicide,  284. 
Sunday,  583. 

Former  acquittal  or  convic.  224. 
Continuance,  112. 
Trial,  602. 
Gaming,  243. 
Malicious  mischief,  432. 
New  trial,  444. 
New  trial,  465. 
Evidence,  135,  286. 
Trial,  598. 
Homicide,  288,  323. 
Bastardy,  73. 
Larceny,  415. 

Concealed  weap.  101 ;  Trial,  604. 
Indictment,  342. 
Insanity,  359 ;  Trial,  612. 
Gaming,  244. 
Sentence,  559. 
Homicide,  316. 

Misdemeanor,  439;  Wit.  656,  660. 
Assault  and  battery,  33. 
Accessory,  9;  Evideuce,  155. 
Larceny,  380. 


722 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


LoBg  T.  State,  27  Ala.  33       . 

"  "       12  Ga.  293 

"  "       46  Ind.  582       . 

Xoomis  V.  Edgerton,  19  Wend.  419 
Lojjez  V.  State,  34  Texas,  133 
Lorance  v.  State,  ]  Carter,  359 
Lord  T.  State,  16  New  HamiD.  335 

"  "       20  New  Hamp.  404 

"  "       18  New  Hamp.  173      . 

Lorton  v.  State,  7  Mo.  55  .  ,  . 

Love  V.  State,  32  Ark.  336      . 
Lovell  V.  State,  12  Ind.  13 
Low  V.  Hall,  47  N.  Y.  104      . 
Low  V.  Mitchell,  18  Maine,  373     . 
Low  V.  People,  2  Parker,  37   . 
Lowenberg  v.  People,  5  Parker,  414;  27  N.  Y.  336. 

Lowenstein  v.  People,  54  Barb.  299 
Lowenthal  v.  State,  32  Ala.  589 
Lowry  v.  State,  1  Mo.  733 
Loyd  V.  State,  43  Ga.  331 
Ludwick  V.  State,  9  Fla.  404 
Luke  V.  State,  49  Ala.  30 
Lumm  V.  State,  3  Ind.  393 
Luning  v.  State,  1  Chand.  178 
Luster  v.  State,  11  Humph.  169 
Lutz  V.  Com.  29  Penn.  St.  441 
Lyles  V.  State,  41  Texas,  172 
Lyman  v.  State,  47  Ala.  686  . 
Lynch  v.  Com.  77  Penn.  St.  205 
Lynch  v.  People,  38  III.  494    . 
Lynch  v.  State,  9  Ind.  541 
Lynes  v.  State,  5   Porter,  336 

"  "36  Miss.  617 

Lyon's  Case,  2  Wallace,  Jr.,  149 
Lyons  v.  People,  08  111.  271 


License,  425. 

Robbery,  546, 547;  Tr.  609,613,615. 

Trial,  617. 

Misdemeanor,  437. 

Evidence,  158. 

Bail  and  recognizance,  69. 

Gaming,  237, 246 ;  Verdict,  637, 641. 

Larceny,  391. 

Trial,  591,  607. 

Larceny,  397. 

Evidence,  148. 

Incest,  325. 

False  pretenses,  178. 

Bastardy,  75. 
Larceny,  389. 
Ev.  150;  Homicide,  256;  Sentence, 

558  ;  Trial,  599. 
Lasciv.  416;  Misdemeanor,  438. 
Embezzlement,  119. 
Gaming,  236. 

Receiving  stolen  property,  534. 
Assault  and  battery,  49,  57. 
Arson,  30. 

Bail  and  recognizance,  61. 
Evidence,  131,  160. 
New  trial,  451. 
Homicide,  267. 
New  trial,  448. 

Former  acquittal  or  convic.  231. 
Homicide,  360;  Insanity,  359. 
Bail  and  recognizance,  61. 
Verdict,  637. 
Abatement,  1. 
Evidence,  145,  148. 
Trial,  601. 
Burg.  86 ;  Trial,  616 ;  Verdict,  639. 


M 


Macdonnell,  In  re,  11   Blatchf.  79,   170;  3  Green's 
Crim.  Reps.  151,  166       .... 
Mackesey  v.  People,  6  Parker,  114 
Mackey  V.  People,  2  Col.  13    .  .  .  . 

Maconnekey  v.  State,  5  Ohio,  N.  S.  77     . 
Madden  v.  State,  1  Kansas,  340  . 

Maddox  v.  State,  41  Texas,  305  . 
Madison  v.  Com.  2  A.  K.  Marsh.  131 
Magee  v.  State,  33  Ala.  575  . 

Mabau  v.  Berry,  5  Mo.  31        . 
Mahan  v.  State,  10  Ohio,  233 


Fugitives  from  justice,  233,  334. 

Accessory,  8;  Arson,  37;  Wit.  650. 

Trial,  619,  624. 

lutox.  as  an  excuse  for  crime,  363. 

Evidence,  130;  New  trial,  455. 

Larceny,  411. 

Bail  and  recognizance,  66. 

Assault  and  battery,  53. 

Perjury,  499. 

Grand  jury,  247. 


TABLE   OF   CASES. 


723 


Title  of  Case  and  Report. 


Subject  and  Page. 


Maher  v.  People,  10  Mich.  213  ..  . 

"  "         24  111.  241  . 

Maher  v.  State,  1  Porter,  265  ..  . 

"  "3  Minn.  444         . 

Mahoney  v.  People,  5  K  Y.  Supm.  N.  S.  329 ;  affi'd 

59  N.  Y.  659       . 
Mains  v.  State,  8  Eng.  285 

"  "       42  Ind.  327     . 

Malone  v.  State,  8  Ga.  403 

"  "       14  Ind.  219  . 

Maloney  v.  People,  38  111.  62 
Malpass  v.  Caldwell,  70  N.  C.  130     . 
Manaway  v.  State,  44  Ala.  375     . 
Mandeville  v.  Guernsey,  51   Barb.  99 
Mann  v.  People,  35  111.  467 
Manuel  v.  People,  48  Barb.  548 
Maples  V.  State,  3  Heisk.  408 
March  v.  People,  7  Barb.  391 
Marcus  v.  State,  26  Ind.  101 
Maria  v.  State,  28  Texas,  698 
Mariner  v.  Dyer,  2  Greenlf.  165    . 
Markham  v.  State,  25   Ga.  53 
Markley  v.  State,  10  Mo.  291 
Mark's  Case,  4  Leigh,  658       . 
Marks  v.  State,  3  Ind.  535 
Marston  v.  Jenness,  12  New  Hamp.  137 
Martha  v.  State,  26  Ala.  72 
Martin  v.  State,  29  Ala.  30     . 

"  "       28  Ala.  71 

"  "       40  Texas,  19 

"  "       39  Ala.  523 

"  "       12  Miss.  471. 

^'  "       47  Ala.  564 

"  "       6  Humph.  204 

"  "       13  111.  341 

"  "       9  Mo.  383      . 

"  "       24  Texas,  61 

"  "       16  Ohio,  364 

"       51  Ga.  567 
Martinez  v.  State,  41   Texas,  136,  164 
Martin's  Case,  2  Leigh,  745 
Marx  V.  People,  63    Barb.  618 
Mary  v.  State,  24  Ark.  44 

"       5  Mo.  71 
Mask  V.  State,  33  Miss.  405 
Maskill  V.  State,  8  Blackf.  299 
Mason  v.  People,  26  N.  Y.  200     . 

"  "       43  Ala.  532  . 

2  Col,  373 
Mathena  v.  State,  20  Ark.   70 
Mathews  v.  State,  33  Texas,  117  . 


Assault  &  battery,  48,  55;  Ev.  138. 
Homicide,  319. 
Jury,  370. 
New  trial,  454. 

Robbery,  545 ;  Writ  of  error,  664. 

New  trial,  463. 

Nuisance,  478. 

Evidence,  138. 

Indictment,  343. 

Bastardy,  75. 

Fugitives  from  justice,  335. 

Forg.  and  counterfeiting,  214,  219. 

Arrest,  20. 

Bastardy,  75. 

New  trial,  464;  Trial,  614. 

Evidence,  147. 

Conspiracy,  102,  105,  110. 

Larceny,  S75. 

Homicide,  307. 

Bastardy,  75. 

Larceny,  401. 

Indictment,  333. 

Burglary,  91. 

Indictment,  345. 

Bastardy,  73,  74. 

Arson,  28;  Trial,  624. 

Arson,  27. 

Arson,  28,  30;  Ev.  152;  Verd.  640. 

Assault  and  battery,  50. 

Evidence,  139. 

Habeas  corpus,  251. 

Homicide,  819;  Trial,  617. 

Misdemeanor,  438. 

New  trial,  441. 

Riot,  544. 

Statutes,  581. 

Trial,  597. 

Trial,  626. 

Larceny,  391,  401. 

Forg.  and  counterfeiting,  215,  231. 

Evidence,  167. 

Arson,  23,  27. 

Homicide,  303;  Trial,  609. 

Homicide,  287. 

Indictment,  343. 

Burglary,  88,  91. 

Burglary,  94. 

Larceny,  414. 

Forgery  and  counterfeiting,  214. 

Assault  and  battery,  43. 


724 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Mathews  v.  State,  33  Texas,  102  . 

"       4  Ohio,  N.  S.  539  . 
"  "       24  Ark.  484      . 

Maurer  v.  People,  43  N.  Y.  1 
Maurice  v.  Com.  108  Mass.  433     . 
Maxwell  v.  Hardy,  8  Pick.  560 
Maxwell  v.   State,    3    Heisk.  420;  1    Green's  Crim 

Reps.  696  . 
May  V.  People,  60  111.  119 
May  V.  State,  14  Ohio,  461     . 

"      9  Ala.  167  . 
Mayer  v.  State,  33  Ind.  203     . 
Mayers  v.  State,  11  Humph.  40     . 
"      2  Eng.  174     . 
"  "      2  Eng.  68 

Mayes  v.  State,  33  Texas,  340 
Maynard  v.  State,  46  Ala.  85 
Mayo  V.  State,  30  Ala.  32       . 
Mayor  v.  Beasly,  21  Ala.  240 
McAfee  v.  State,  31  Ga.  411 
McAllister  v.  State,  17  Ala.  434    . 
McAlpiye  v.  State,  47  Ala.  78 
McAuley  v.  State,  3  Greene,  435   . 
McBride  v.  State,  10  Humph.  615      . 

"  "2  Eng.  374 

McBryde  v.  State,  34  Ga.  202 
McCall  V.  Parker,  13  Mete.  372      . 
McCann  v.  Com.  14  Gratt.  570 
McCann  v.  People,  6  Parker,  629 
McCann  v.  State,  13  Smed.  &  Marsh.  471 

"  "9  Smed.  &  Marsh.  465  . 

McCarron  v.  People,  13  N.  Y.  74 
McCartney  v.  State,  3  Ind.  353      . 
McCarty  v.  People,  51  111.  231 
McCartyv.  State,  44  Ind.  214;  2  Green's  Cr.  Reps.  715. 

"  "     1  Blackf.  238    . 

McCauley  v.  State,  26  Ala.  135 
MeCauley  v.  U.  S.  1  Morris.  486  . 
McCh)skey  v.  People,  5  Parker,  299,  308 
McComas  v.  State,  11  Mo.  116      . 
McCombs  V.  State,  8  Ohio,  N.  S.  643 
McConnell  v.  State.  46  Ind.  298;  2  Green's  Cr.  R.  723. 
McCord  V.  People,  46  N.  Y.  470  . 
McCorkle  v.  State,  1  Cold.  Tenn.  333 
McCoy  V.  State,  3  Eng.  451 

"  "25  Texas,  33  ... 

McCue  V.  Com.  78  Penn.  St.  185  . 
McCulloch  V.  State,  48  Ind.  109 
McCullough  V.  Com.  67  Penn.  St.  30 
McCune's  Case,  2  Rob.  77       . 
McDade  v.  People,  29  Mich.  50    . 


False  pretenses,  186. 

Robbery,  547. 

Statutes,  582. 

Trial,  605. 

Former  acquittal  or  conviction,  230. 

Bastardy,  74. 

Assault  and  battery,  54. 

Verdict,  638. 

Forgery  and  counterfeiting,  216. 

Peddlers,  496. 

Sunday.  584. 

Indictment,  328. 

New  trial,  465. 

Statutes,  580. 

False  pretenses,  186. 

Larceny,   395,  408,  411. 

Embezzlement,  121 ;  Indict.  340. 

Larceny,  380. 

Assault  and  battery,  56. 

Homicide,  264 ;  Trial,  595. 

Trial,  614,  619. 

Assault  and  battery,  38. 

Indictment,  334. 

Mayhem,  437. 

Evidence,  128. 

Bastardy,  72. 

Former  acquittal  or  conv.  224, 

New  trial,  448. 

Indictment,  345. 

New  trial,  460. 

Jurisdiction,  367. 

Forgery  and  counterfeit.  215, 221. 

Evidence,  151. 

Accessory,  10. 

Bail  and  recognizance,  64,  66,  67. 

Gaming,  239;  Trial,  611. 

Venue,  change  of,  635. 

Jury,  370;  Robbery,  545. 

New  trial,  442 ;  Rape,  530. 

Rape,  524,  525. 

Contempt,  110. 

False  pretenses,  176. 

False  pretenses,  177. 

Assault  and  battery,  51,  53. 

Homicide,  274. 

Homicide,  281. 

Homicide,  271. 

Arrest,  20,  21 ;  Grand  jury,  248. 

New  trial,  465. 

Arson,  27. 


TABLE   OF   CASES. 


725 


Title  of  Case  and  Report. 


Subject  and  Page. 


McDade  v.  State,  20  Ala.  81 
McDaniel  v.  Com.  6  Bush,  326       . 
McDaniel  v.  State,  8  Sin.  &  Marsh.  401 


«  "       35  Ala.  390     . 

"  "       30  Ga.  853 

McDermott  v.  People,  5  Parker,  103 
McDermott  v.  State,  13  Ohio,  N.  S.  833 
McDonald,  Ex  'parte,  3  Whart.  440 
McDonald  v.  Hobby,  1  Root,  154 
McDonald  v.  State,  8  Mo.  283 
McFall  V.  Com.  3  Mete.  Ky.  394 
Mc Parian  v.  People,  13  111.  9 
McFarland  v.  State,  24  Ohio,  N.  S.  329 
McGary  v.  People,  45  N.  Y.  153;  3  Lans.  237 
McGehee  v.  State,  26  Ala.  154 
McGinnis  v.  State,  9  Humph.  43 
McGlotherlin  v.  State,  3  Cold.  Tenn.  333 
McGowau  V.  State,  9  Yerg.  184    . 
McGregg  v.  State,  4  Blackf.  101 
McGregor  v.  State,  1  Carter,  233 
McGrory  v,  Peoijle,  48  Barb.  466 
McGuffie  V.  State,  17  Ga.  497 
McGuire  v.  Com.  3  Wall.  387 
McGuire  v.  People,  5  N.  Y.  Supm.  X.  S.  683 
McGuire  v.  State,  37  Ala.  160,  161      . 

"  "     50  Ind.  384 

"  "     7  Humph.  54 

McHugh  V.  State,  31  Ala.  317 
Mclntyre  agst.  People,  9  N.  Y.  38      . 
McKay  v.  State,  13  Mo.  493 
McKee  v.  People,  36  N.  Y.  113 
«  "       33  N.  Y.  339    . 


McKenzie  v.  State,  6  Eng.  594 
McKlnney  y.  People,  3  Oilman,  541 
McKissick  v.  State,  3  Texas,  356 
McLain  v.  State,  10  Yerg.  341 
McLane  v.  State,  4  Ga.  335 

McLaughlin  v.  Com.  4  Ravvle,  464 
McLaughlin  v.  Whitten,  33  Maine,  31 
McLean  v.  State,  10  Ala.  673 

"      8  Mo.  153 
McLeod  V.  State,  35  Ala.  395 
McMillan  v.  State,  13  Mo.  30 
McMurray  v.  State,  6  Ala.  334      . 
McNair  v.  Com.  36  Penn.  St.  383 
McNeal  v.  Weeds,  3  Blackf.  485 


Indictment,  348. 

Gaming,  236. 

Continuance,  112;  Evidence,  151; 
Homicide,  254,  360,  395,  399, 
300;  Larceny,  381,  382. 

Gaming,  241. 

Verdict,  637. 

Assault  and  battery,  49. 

Rape,  525,  537. 

Pardon,  495. 

Bastardy,  74. 

Larceny,  383. 

Jurisdiction,  365. 

Bail  and  recognizance,  59,  71. 

Rape,  524. 

Arson,  25,  28. 

Officer,  491. 

Former  acquittal  or  convic.  337. 

Evidence,  148. 

Gaming,  341. 

Indictment,  340;  Trial,  601,  630. 

Perjury,  503. 

Evidence,  165;  Trial,  616. 

Verdict,  637. 

Spirituous  liquors,  sale  of,  566. 

Evidence,  153. 

Adultery,  13 ;  Forg'y  and  coun.  307. 

Rape,  530. 

Voting,  643. 

Homicide,  396. 

Witness,  649. 
Continuance,   114. 

Insanity,  358;  Homicide,  375. 
Former  acquittal  or  convic.  338  ; 

Sentence,  559. 
False  preten.  175,  183;  lusan.  359. 
Trial,  631 ;  Witness,  654. 
Gaming,  343. 
New  trial,  454. 
Arson,  37;  Judgment,    363;  New 

trial,  465. 
Larceny,  389. 
Bastardy,  76. 
Evid.  137,    103;    Homi.  383,  280, 

393,  395 ;  Witness,  654. 
Trial,  613. 

Adultery,  15  ;  Sentence,  556. 
Homicide,  380,  391. 
Perjury,  513. 
Evidence,  133. 
Arson,  34. 


726 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


McNeil  V.  State,  47  Ala.  498 
McNevins  v.  People,  61  Barb.  307      . 
McPherson  v.  State,  9  Yerg.  279 

"  "      22Ga.  478 

McQuillan  v.  State,  8  Smed.  &  Marsh. 
McQuoid  V.  People,  3  Gilnian,  76 


587 


Mc Waters  v.  State,  10  Mo.  167 

McWhirter's  Case,  8  Gratt.  594 

Mead  v.  Hawes,  7  Cow.  322 

Meaderv.  State,  11  Mo.  363 

Medaris  v.  State,  10  Yerg.  239 

Meeks  v.  State,  51  Ga.  429      . 

Melton  V.  State,  3  Humph.  389 

Mendum  v.  Com.  6  Rand.  704 

Mercer  v.  State,  17  Ga.  146 

Meredith  v.  Com.  18  B.  Mon.  49 

Merkle  v.  State,  27  Ala.  139 

Merrill  v.  Prince,  7  Mass.  396 

Merrill  v.  State,  45  Miss.  651 

Merriweather  v.  State,  33  Texas,  789 

Merwin  v.   People,    26  Mich.  298;   1  Green's   Crim. 

Reps.  349         ....  . 

Messner  v.  People,  45  N.  Y.  1 


Metzger  In  re,  1  Barb.  248  ;  1  Parker,  108 

Meyer  v.  State,  19  Ark.  156     . 

Michie  v.  Michie's  Admr.  17  Gratt.  109 

Mickle  V.  State,  27  Ala.  20      . 

Middleton  v.  State,  Dudley,  275 

Miffin  V.  Com.  5  Watts  &  Serg.  461    . 

Milan  v.  State,  24  Ark.  346 

Miles  V.  Brown,  3  Barb.  37 

Miller  v.  Finkle,  1  Parker,  374      . 

Miller  v.  Foley,  28  Barb.  630 

Miller  v.  People,  39  111.  457 

"  "       52  N.  Y.  304      . 

"5  Barb.  203  . 
Miller  v.  State,  45  Ala.  24 

"       40  Ala.  54       . 

"       2  Scam.  233 
"  "       25  Wis.  384    . 

"  "       37  Ind.  432 

"  "       8  Ind.  325 

"       33  Miss.  356 
Mill's  Case,  7  Leigh,  751 
Mills  V.  Com.  13  Penn.  St.  631     . 
Mills  V.  McCoy,  4  Cow.  406     . 
Mills  V.  State,  20  Ala.  86  . 


Trial,  629. 

Homi.  304 ;  Writ  of  error,  665. 

Trial,  617. 

Verdict,  637. 

Abatement,  1,  2;  Trial,  605. 

Former  acquittal    or  conviction,. 

231 ;  Indictment,  337. 
Riot,  543,  544. 
Homicide,  254,  264. 
Arrest,  21. 
Trial,  593. 
Indictment,  328. 
Assault  and  battery,  53,  54. 
Bill  of  exceptions,  82 ;  Libel,  422. 
Continuance,  112. 
Trial,  601 ;  Verdict,  642. 
Homicide,  317. 

Spirituous  liquors,  sale  of,  573. 
Bastardy,  75. 
Larceny,   391. 
Larceny,  393. 

Larceny,  389. 

Evid.    164;  Hom.  290:  Sentence^ 

555 ;  Writ  of  error,  664. 
Fugitives  from  justice,  232. 
New  trial,  444. 
Sunday,  584. 
Evidence,  129. 
False  pretenses,  179. 
Conspiracy,  102. 
Trial,  598. 
Habeas  corpus,  249. 
Sentence,  558,  559,  561. 
Warrant,  646. 
Evidence,  128,  146,  152,  165,  166; 

Robbery,  548 ;  Verdict,  638. 
Forgery  and  counterfeiting,  204. 
Lasciviousness,  419. 
Arson,  29. 
Evidence,  141,  142 ;  Larceny,  401 ;. 

Statutes,  581. 
Forgery  and  counterfeiting,  209. 
Homicide,  261. 
Homicide,  306,  319. 
Trial,  628. 
Voting,  645. 
New  trial,  462. 
Abortion,  5. 

Bail  and  recognizance,  68, 
Gaming,  239. 


TABLE  OF  CASES. 


r2T 


Title  of  Case  and  Report. 


Subject  and  Page. 


Milner  v.  State,  30  Ga.  1:57 

Mimms  v.  State,  16  Ohio,  N.  S.  221  . 

Miner  v.  People,  58  111.  59 ;  1  Green's  Grim.  Reps.  655. 

Ming  V.  Truett,  1  Mont.  322 

Minor  v.  State,  1  Blackf.  236  . 

Mitchell  V.  State,  41  Ga.  527 

'•  "     8  Yerg.  514  ... 

"  "5  Yerg.  340         . 

Mitchum  v.  State,  11  Ga.  615 

Mobley  v.  State,  46  Miss.  501      . 
Moffatt  V.  State,  6  Eng.  169     . 
Moffett  V.  State,  2  Humph.  99      . 
Monday  v.  State,  32  Ga.  672  . 
Mondragon  v.  State,  33  Texas,  480 
Monroe  v.   State,  5  Ga.  85      . 

"  "        24  Miss.  54         . 

Monte  V.  Com.  8  J.  J.  Marsh.  132 
Montgomery  v.  State,  40  Ala.  684 

"11  Ohio,  424    . 
"  "      10  Ohio,  220 

Moody  V.  Com.  4  Mete.  Ky.  1 
Moody  V.  People,  20  111.  315 
Moody  V.  State,  7  Blackf.  424 
Mooney  v.  State,  33  Ala.  419 
Moore  v.  Com.  6  Mete.  243     . 

"  "8  Barr,  200 

Moore,  Ex  parte,  30  Ind.  197  . 
Moore  v.  State,  18  Ala.  532 

"  "       17  Ohio,  N.  S.  515    . 

"  "       30  Ala.  550 

"13  Ala.  764    . 

13  Smed.  &  Marsh.  260  . 
"  "       26  Ala.  88     . 

Mooerv.  State,  44  Ala.  15 
Moore's  Case,  9  Leigh,  639     . 
Moran's  Case,  9  Leigh,  651 
Morgan  v.  State,  33  Ala.  413 
"  "34  Texas,  677    . 

"  "      31  Ind.  193  . 

"  "      11  Ala.  389 

"      13Fla.  671, 
Morman  v.  State,  24  Miss.  55 
Morrell  v.  People,  32  111.  429 . 
Morrell  v.  Quarles,  35  Ala.  544    . 
Morrill  v.  State,  38  Wis.  428  . 
Morris  v.  People,  1  Parker,  441    . 
Morris  Run  Coal  Company  v.  Barclay  Coal  Company, 

68  Penn.  St.  173 
Morris  v.  State,  8  Smed.  &  Marsh.  763     . 


New  trial,  459. 

Homicide,  284,  387. 

Adultery,  12,  14,  15. 

Extortion,  171. 

Bail  and  recognizance,  66. 

Assault  and  battery,  39. 

Homicide,  260 ;  New  trial,  463. 

Homicide,  300. 

Homicide,    270,  28G;    New   trial, 

446;  Trial,  612. 
Rape,  531. 
Gaming,  343. 
"Witness,  651. 
Assault  and  battery,  54. 
Larceny,  406. 
Homicide,  387,  390,  398,  303,  305  ; 

New  trial,  444,  446,  456. 
Indictment,  345. 
Gaming,  343. 
Evidence,  159. 
Homicide,  394,  397,  306. 
Perjury,  498. 
Dueling,  117. 
Abduction,.  3. 
Indictment,  330,  348. 
Assault  and  battery,  53,  56. 
Adultery,  13. 
False  pretenses,  179. 
Homicide,  300. 
Assault  and  battery,  53. 
Evidence,  160;  Rape,  535. 
Gaming,  339. 
Homicide,  393,  397. 
Indictment,  351. 
Nuisance,  480. 
Larceny,  410. 
Bigamy,  79. 
Trial,  603. 

Assault  and  battery,  48. 
Former  acquittal  or  convic.  336. 
Homicide,  394. 
Incest,  324,  335. 
Larceny,  395. 

Homicide,  304 ;  Verdict,  638. 
Peijury,  507,  509. 
Fugitives  from  justice,  234. 
Peddlers,  496. 
Vagrant,  634. 

Conspiracy,  103. 

Forgery  and  counterfeiting,  331. 


728 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Morris  y.  State,  1  Blackf.  37 

"  "       31  Ind.  189     . 

"  "       7  Blackf.  607 

"  "       25  Ala.  57       . 

Morrisey  v.  People,  11  Mich.  327. 
Morrison  v.  State,  5  Ohio,  438 
Morse  v.  State,  6  Conn.  90 

"  "35  Ala.  421     . 

Morton  v.  State,  30  Ala.  527 
Moses  V.  State,  11  Humph.  232 
Moss  V.  State,  6  How.  Miss.  298  . 
Mount  V.  Com.  1  Duvall,  Ky.  99 
Mount  V.  State,  14  Ohio,  295 

Mountain  v.  State,  40  Ala.  344     . 
Muir  V.  State,  8  Blackf.  154  . 
Mullen  V.  State,  45  Ala.  66 

"  "      45  Ala.  43     . 

Mulligan  v.  People,  5  Parker,  105 
Mullins  V.  People,  24  N.  Y.  399 
Munden  v.  State,  37  Texas,  353  . 
Munson  v.  People,  5  Parker,  16 
Murphy  v.  Com.  1  Mete.  Ky.  365 

"  "      23   Gratt.    960;    2    Green's   Crim 

Reps.  662 
Murphy  v.  Glidden,  34  Maine,  196 
Murphy  v.  People,  6  N.  Y.  Supm.  N.  S.  309 
37  111.447      . 

"  "       5N.  Y.  Supm.  K  S.  302  . 

Murphy  v.  State,  50  Ga.  150 

"  "       1  Carter,  366;  1  Smith,  2G1 

"  "      6  Ind.  499 

"  "       3  Head,  249 

Murray  v.  Com.  13  Mete.  514 
Murray  v.  State,  36  Texas,  42 ;  1  Green's  Cr.  R.  654 

"  "     18  Ala.  727 

Murray's  Case,  5  Leigh,  720     . 
Murrell  v.  State,  46  Ala.  89 
Myers  v.  People,  4  N.  Y.  Supm.  N.  S.  292 
Myers  v.  State,  33  Texas,  525 


Judgment,  362;  New  trial,  442. 

Sunday,  584. 

Trial,  602;  Voting,  644. 

Trial,  615,  624. 

Larceny,  385. 

Evidence,  141. 

Evidence,  163. 

Indictment,  327;  Homi.  284,  294. 

Forgeiy  and  counterfeiting,  217. 

Trial,  601. 

Bail  and  recognizance,  69. 

Forg.  and  counterfeiting,  206,  221. 

Former   acquittal    or    conviction, 

224,  230;  Sentence,  554. 
Burglary,  95  ;  Evidence,  143. 
Perjury,  500. 
Assault  and  battery,  53. 
Sentence,  555. 
Assault  and  battery,  34. 
Certiorari,  96. 
Homicide,  317. 
Nuisance,  486. 
Trial,  603. 

Witness,  655. 

Bastardy,  74. 

Evidence,  129  ;  Trial,  608. 

Homicide,  294. 

Trial,  615. 

Adultery,  14. 

Spirituous  liquors,  sale  of,  567. 

Trial,  613. 

Usury,  633. 

Sentence,  557. 

Assault  and  battery,  55. 

Larceny,  398  ;  Trial,  615. 

Forgery  and  counterfeiting,  206. 

Evidence,  152. 

Indictment,  329,  347. 

Homicide,  309. 


N 


Nail  V.  State,  34  Ala.  262 
Nash  V.  State,  2  Greene,  286 
Nation  v.  People,  6  Parker,  258 
Neales  v.  State,  10  Mo.  498 
Ned  V.  State,  7  Porter,  187     . 


Accessory,  9;  Escape,  124,  125. 
Homicide,   265. 
Evidence,  166. 

Spirituous  liquors,  sale  of,  570. 
Former    acquittal    or    conviction, 
224;  Trial,  598,  611. 


TABLE   OF  CASES. 


729 


Title  of  Case  and  Report. 


Subject  and  Page. 


Needham  v.  State,  1  Texas,  139  . 
Neely  v.  People,  13  111.  687   . 
Nelms  V.  State,  13  Sm.  &  Marsh.  500 

JSTels  V.  State,  2  Texas,  280     . 
Nelson  v.  People,  5  Parker,  39 

Nelson  v.  State,  7  Humph.  542 
Nesbit  V.  State,  43  Ga.  238 
Nevin  v.  Laclue,  3  Denio,  437 
Newell  V.  Com.  2  Wash.  88 
Newland  v.  State,  30  Ind.  Ill 
Newman  v.  People,  63  Barb.  630  ;  6  Laus.  460 
Newman  v.  State,  49  Ala.  9     . 
Newton  v.  Com.  8  Mete.  535 
Nicholls,  Matter  of,  2  South.  539 
Nicholls  V.  State,  2  South.  542 
"  "      2  South.  539 

Nichol's  Case,  7  Gratt.  589  ..  . 

Nichols  V.  People,  17  N,  Y.  114        . 
Nichols  V.  State,  8  Ohio,  N.  S.  435 
Nicholson  v.  State,  2  Kelly,  363         .        .     . 

"  "       38  Md.  140    . 

"  "      18  Ala.  529 

Nixon  V.  State,  2  Smed.  &  Marsh.  497     . 
Noakes  v.  People,  25  N.  Y.  380;  5  Parker,  291 
Noble  V.  People,  Breese,  29  .  .  . 

Noble  V.  State,  22  Ohio,  N.  S.  541 ;  1  Green's  Crim 

Reps.  662  .... 

Nolan  V.  State,  19  Ohio,  131 
Noles  V.  State,  24  Ala.  672       . 


Nolty  V.  State,  17  Wis.  668 
Nomaque  v.  People,  Breese,  109 
Norfleet  v.  State,  4  Sneed,  340     . 
Norris  v.  State,  3  Humiih.  333 
Northcot  V.  State,  42  Ala.  330     . 
Northrup  v.  Brush,  Kirby,  108 
Northrup  y.  People,  37  N.  Y.  203 
Norton  v.  Ladd,  5  New  Hamp.  203 
Norton  v.  Peoijle,  8  Cow.  137 
Norton  v.  State,  4  Mo.  461      . 
Nugent  V.  State,  19  Ala.  540 
"      18  Ala.  521 


Gaming,  242. 

Trial,  597. 

Homicide,   294  ;    New  trial,  451 ; 

Trial,  601. 
Trial,  604. 
Assault   and   battery,   43;  Indict. 

338;  Jurisdic.  365;  Trial,  630. 
Homicide,  292,  309,  313. 
Homicide,  297. 

Spirituous  liquors,  sale  of,  566. 
Bribery,  85. 
Trespass,  589, 
Witness,  650,  652. 
Evidence,  144. 
Sentence,  558. 
Indictment,  353. 
Certiorari,  97. 

Bail  &  recog.  65 ;  Indictment,  352. 
Indictment,  334. 
Larceny,  374. 

Intox.  as  an  excuse  for  crime,  361. 
Bail  and  recognizance,  64. 
Evidence,  148. 

Forgery  and  counterfeiting,  208. 
Trial,  590. 

Forg.  and  counterfeiting,  201,207. 
Witness,  648. 

Incest,  324. 

Trial,  620. 

Indictment,  326,   330  ;  Judgment, 

362 ;  Homicide,  265,  275,  318. 
Officer,  490. 
Indictment,  327. 
Trial,  602. 
New  trial,  442. 
Malicious  mischief,  433. 
Abatement,  1. 
Jurisdiction,  365. 
Larceny,  384. 
Accessory,  9. 
Larceny,  378. 
Abatement,  1 ;  Rape,  529. 
Rape,  626,  532. 


o 


Oakley  v.  State,  40  Ala.  373 

O'Briau  V.  Com.  9  Bush,  Ky.  333  ;  6  lb.  563 


Larceny,  401. 
Trial,  611. 


730 


TABLE   OF   CASES. 


Title  of  Case  and  Report, 


Subject  and  Page. 


O'Brien  v.  People,   36  N.  Y.  276 ;    2  N.  Y.  Trans,   of 
App.  5 ;  affi'g  48  Barb.  274  . 


O'Connell  v.  Com.  7  Mete.  414 
O'Connell  v.  State,  18  Texas,  343 
O'Connor  v.  State,  30  Ala.  9 
Ogden  V.  State,  12  Wis.  532 
Oglesby  v.  State,  39  Texas,  53 
Ogletree  v.  State,  28  Ala.  693 

Oldham  v.  State,  5  Gill,  90     . 
O'Leary  v.  People,  4  Parker,  187 

Olive  V.  Com.  5  Bush,  376      . 
Oliver  v.  State,  5  How.  Miss.  14 

"  "      37  Ala.  134      . 

"  "      17  Ala.  587 

O'Mara  v.  Com.  75  Penn.  St.  424 
O'Meara  v.  State,  17  Ohio,  N.  S.  515 
O'Neal  V.  State,  47  Ga.  229      . 
O'Neale  v.  Com.  17  Gratt.  582     . 
O'Neill  V.  State,  16  Ala.  65     .     '        . 
Ooton  V.  State,  5  Ala.  463 
Ormsby  v.  People,  53  N.  Y.  472 
Ortner  v.  People,  11  N.  Y.  Supm.  N.  S.  323 
548  ....  . 

Ortwein  v.  Com.  76  Penn.  St.  414 
Osborn  v.  State,  24  Ark.  629  . 
Osborne  v.  People,  2  Parker,  583 
Osgood  v.  People,  39  N.  Y.  449 
Otmer  v.  People,  76  111.  149 
Overstreet  v.  State,  46  Ala.  30 
Owen  V.  State,  31  Ala.  387 

''      6  Humph.  330 
Oxford  V.  State,  33  Ala.  416 


5  lb. 


Evi.  141,  164;    Homi.  256;  Insan. 

359 ;    Intox.   as  an   excuse  for 

crime,  360,  362 ;  Lasciviousness, 

419  ;  Nolle  prosequi,  467 ;  Trial, 

595,597,  600,  601. 
Receiving  stolen  property,  539. 
Homicide,  273. 
False  pretenses,  186,  189. 
Accessory,  11. 
Arrest,  21. 
Assault  and  battery,  52,  53,  54, 55  ; 

Evidence,  130. 
Bastardy,  72. 
Assault  (fe  battery,  49,  57;  Former 

acquittal  or  conviction,  228. 
Burglary,  92. 
Evidence,  167;    Indictment,  348: 

Sentence,  559. 
False  pretenses,  185;  Indict.  345. 
Homicide,  277,  280,  295,  306,  321 ; 

Ti'espass,  590. 
Homicide,  281 ;  Trial,  599. 
Rape,  525,  529,  530. 
Jury,  369. 
Bigamy,  80. 
Affray,  17. 
Sentence,  560. 
Conspiracy,  108,  109  ;  Evi.  151. 

Perjury,  502,  508. 

Insanity,  339. 

Trial,  605. 

Burglary,  92. 

Spirituous  liquors,  sale  of,  571. 

Trial,  018,620. 

Arson,  29. 

Concealed  weapons,  101. 

Larceny,  394. 

Receiving  stolen  property,  539. 


Packard  v.  U.  S.  1  Iowa,  225  . 
Page  V.  State,  6  Mo.  205 
Paige  V.  People,  6  Parker,  683 

Paige's  Case,  9  Leigh,  686 
Paine  v.  Com.  18  Penn.  St.  108 
Palfus  V.  State,  36  Ga.  280 


New  trial,  442. 

Peddlers,  496. 

Forgery  &  counterfeiting,  203,  204 ; 

Writ  of  error,  661. 
Forgery  and  counterfeiting,  213. 
Trial,  605. 
Nuisance,  475. 


TABLE  OF  CASES. 


731 


Title  of  Case  and  Report. 


Subject  and  Page. 


Palmer  v.  People,  10  Wend.  lOG         , 

"  "       5  Hill,  427       . 

Palmer  v.  State,  45  Ind.  388;  3  Green's  Cr.  R.  718 
Palston  V.  State,  14  Mo.  463 
Pankey  v.  People,  1  Scam.  80 
Park  V.  State,  4  Ga.  329  . 

Parker  v.  Com.  6  Barr,  507 
Parker  v.  State,  26  Texas,  206 

"  "        34  Ga.  262 

Parker  V.  Way,  15  New  Hamp.  45     . 
Parmer  v.  State,  41  Ala.  416 
Parrott  v.  State,  5  Eng.  574 
Parsons  v.  State,  43  Ga.  197 

"  "      2  Carter,  499 

"      21  Ala.  300 
Patapsco  Ins.  Co.  v.  Coulter,  3  Pet.  222,  234 
Pate  V.  People,  3  Gilman,  644 
Patrick  v.  Smoke,  3  Strobh.  147 
Patten  v.  People,  18  Mich.  314     . 
Patterson,  Case  of,  6  Mass.  486 
Patterson  v.  People,  46  Barb.  625 


Patterson  v.  State,  36  Ala.  298 

"  "      2  Eng.  60 

Patton  V.  State,  6  Ohio,  N.  S.  470     . 
Payne  v.  Barnes,  5  Barb.  456 
Payne  v.  Com.  1  Mete.  Ky.  370 
Payne  v.  People,  6  Johns.  103 
Payne  v.  State,  3  Humph.  375 
Peacock  v.  State,  36  Texas,  647 
Peak  V.  People,  76  111.  289      . 
Peak  V.  State,  10  Humph.  90 
Pearce  v.  State,  40  Ala.  420     . 
Pearl  v.  Rawlin,  5  Day,  244 
Peck  Y.  State,  2  Humph.  78 

Peer's  Case,  5  Gratt.  674 
Peiffer  v.  Com.  15  Penn.  St.  468 
Pelts  V.  State,  3  Blackf.  28 
Pember's  Case,  1  Whart.  439 
Pendleton's  Case,  4  Leigh,  694     . 
Pennsylvania  v.  Campbell,  Addis.  233 
Pennsylvania  v.  Craig,  Addis.  190 
Pennsylvania  v.  Gillespie,  Addis.  267 
Pennsj'lvania  v.  Levin,  Addis.  279 
Pennsylvania  v.  McGill,  Addis.  21 
Pennsylvania  v.  McKee,  Addis.  1 

"  "     Addis.  33     . 

Pennsylvania  v.  Morrison,  Addis.  274 
Pennsylvania  v.  Myers,  Addis,  320  . 
Pennsylvania  V.  Oliphant,  Addis.  345 


Larceny,  381,  394. 
Larceny,  397. 
Malicious  trespass,  434. 
Arson,  26. 
Perjury,  500. 

Bail  and  recognizance,  69. 
Spirituous  liquors,  sale  of,  566. 
Gaming,  242. 
Trial,  600. 
Bastardy,  73,  74,  76. 
Grand  jury,  347;  Larceny,  402. 
Gaming,  341. 
Evidence,  159. 

Gaming,  338,  346 ;  Indictment,  348. 
Homicide,  264. 
Barratry,  71. 

Ev.  134 ;  New  trial,  441 ;  Trial,  615. 
Perjury,  497, 504. 
Homicide,  317,  321,  333. 
Jury,  370. 
Homicide,  302,  316,  323 ;  Insanity, 

356;  Trial,  591. 
Spirituous  liquors,  sale  of,  567. 
Trial,  604. 
Conspiracy,  109. 
Larceny,  384. 
Homicide,  317. 
Larceny,  382. 
Trial,  597,  599. 
Embezzlement,  131. 
Trial,  618. 

Lasciviousness,  419,  430. 
Spirituous  liquors,  sale  of,  567,  574. 
Bastardy,  76. 
Forgery  &  counterfeiting,  306,  331 ; 

Indictment,  343 ;  New  trial,  447. 
Spirituous  liquors,  sale  of,  571. 
New  trial,  455. 

Receiving  stolen  property,  535. 
Sentence,  560. 

Forgery  and  counterfeiting,  317. 
Lasciviousness,  398. 
Riot,  542. 

Malicious  mischief,  430. 
Homicide,  305. 
Misdemeanor,  437. 
Bastardy,  77. 

Forgery  and  counterfeiting,  308. 
Riot,  542. 
Larceny,  406. 
Indictment,  352. 


(32 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Pennsylvania  v.  Sullivan,  Addis.  143 
People  V.  Abbott,  19  Wend.  192 
People  V.  Adams,  3  Denio,  190 
"         17  Wend.  475 
People  V.  Adlcr,  3  Parker,  249 
People  V.  Adwards,  5  Mich.  22     . 
People  V.  Ah  Ki,  20  Cal.  177 
People  V.  All  Kim,  34  Cal.  189     . 
People  V.  Ah  Ping,  27  Gal.  489 
People  V.  Ah  Sam,  41  Cal.  645     . 
People  V.  Ah  Wee,  48  Cal.  236 
People  V.  Ah  Woo,  28  Cal.  205    . 
People  V.  Ah  Yek,  29  Cal.  575 
People  V.  Albany  Common  Pleas,  6  Wend.  550 
People  V.  Alger,  1  Parker,  333 
People  V.  Allen,  5  Denio,  76 
"      1  Parker,  445 
"  "      43N.  Y.  28;  37  Barb.  338  ' 

People  V.  Am.  Art  Union,  7  N.  Y.  240 
People  V.  Amanacus,  50  Cal.  233 
People  V.  Ames,  39  Cal.  403    . 
People  V.  Anderson,  44  Cal.  65    . 
"  "  26  Cal.  129 

"  39  Cal.  703 

"  "  2  Wheeler's  Cr.  Cas.  390 

"  "  14  Johns.  393  . 

People  V.  Antonio,  27  Cal.  404 
People  V.  Arnold,  6  Parker,  638 

15  Cal.  476       . 
People  V.  Ashe,  44  Cal.  288    . 
People  V.  Atkinson,  40  Cal.  284  . 
People  V.  Austin,  1  Parker,  154 

People  V.  Avila,  43  Cal.  196 
People  V.  Babcock,  7  Johns.  200 
People  V.  Backus,  5  Cal.  275 
People  V.  Badgley,  16  Wend.  53 
People  V.  Bailey,  23  Cal.  577 
People  V.  Baker,  3  Parker,  181 

"  "         3  Hill,  159 

"  "         1  Cal.  403    . 

People  V.  Ball,  14  Cal.  101  .  .       " 

"  "42  Barb.  324  . 

People  V.  Barnes,  48  Cal.  551 
People  V.  Barrett,  1  Johns.  06 
People  V.  Barrio,  49  Gal.  342 
People  V.  Barry,  31  Cal.  357  . 


Rape,  519. 
Rape,  525,  526. 
False  pretenses,  180. 
Spirituous  liquors,  sale  of,  571. 
Arrest,  20. 
Homicide,  260. 
Evidence,  148;  Larceny,  408. 
Verdict,  642. 
Larceny,  412. 

Forg.  &  countfg,  205,  206,  216. 
Homicide,  296. 
Forgery  &  countfg,  197,  209. 
Rape,  521. 
Trial,  604. 
Seduction,  551. 

Embezzlement,  120;  Indict.  331. 
Former  acquittal  or  convic.  223. 
Grand  jury,  248 ;    Judgment,  363 ; 

Trial,  594,  601. 
Lottery,  426,  427. 
Evidence,  170. 
Evidence,  158. 

Assault  and  batt.  39;  Trial,  613. 
Evidence,    156;    New   trial,    441; 

Witness,  654. 
Evidence,  154. 
Homicide,  297. 
Larceny,  379,  380. 
Larceny,  408. 
Burglary,  86. 
Homicide,  291,  300. 
Evidence,  150,  151. 
Evidence,  150. 
Evidence,    167;     Homicide,    255, 

305,  321 ;  Indictment,  340. 
Receiving  stolen  property,  535. 
False  pretenses,  174. 
New  trial,  454. 

Forgery  and  counterfeiting,  204. 
Embezzlement,  122. 
Certiorari,  96 ;   Venue,  change  of, 

635. 
Indictment,  340. 
New  trial,  442. 
Larceny,   391. 

Spirituous  liquors,  sale  of,  569. 
Burglary,  92. 

Former  acquittal  or  convic.  227. 
Evidence,  160;   Larceny,  402. 
Homicide,  318. 


TABLE  OF  CASES. 


733 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Bartlett,  3  Hill,  570     . 

People  V.  Bartow,  1  Wheeler's  Crim.  Cas.  378 

People  V.  Batchelder,  27  Cal.  69 

People  V.  Bates,  2  Parker,  27 

People  V.  Bearss,  10  Cal.  68 

People  V.  Beck,  21  Cal.  385  . 

People  V.  Beigler,  3  Parker,  316   . 

People  V.  Belden,  37  Cal.  51  . 

People  V.  Belencia,  21  Cal.  544     . 

People  V.  Bell,  49  Cal,  485      . 

People  V.  Benjamin,  2  Parker,  201 

People  V.  Bennett,  49  N.  Y.  137 


"  37  K  Y.  117  . 

People  T.  Benson,  6  Cal.  221  . 
People  V.  Berberrich,  20  Barb.  224 
People  V.  Bernstein,  18  Cal.  699 
People  V.  Best,  39  Cal.  690 
People  V.  Bill,  10  Johns.  95    . 
People  V.  BishoiD,  5  Wend.  Ill    . 
People  V.  Blake,  1  Wheeler's  Cr.  Cas.  490      . 
People  V.  Blakeley,  4  Parker,  176 

People  V.  Blankman,  17  Wend.  252    . 
People  V.  Bleeker,  2  Wheeler's  Cr.  Cas.  25G 
People  V.  Bodine,  1  Denio,  281 

People  V.  Bogart,  30  Cal.  345 

"         3  Parker,  143 
People  V.  Boggs,  20  Cal.  433 
People  V.  Bonilla,  38  Cal,  99  . 
People  V.  Bonney,  19  Cal.  426      . 
People  y.  Boscovitch,  20  Cal.  436 
People  V.  Boujet,  2  Parker,  11     . 
People  V.  Bowen,  43  Cal.  433 ;  1  Green's  Cr.  R. 
People  V.  Bradley,  60  111.  390  .  •  . 

"  "4  Parker,  245 

People  V.  Brady,  56  N.  Y.  182 

"  "        40  Cal.  198        . 

People  V.  Braman,  30  Mich.  460         . 
People  V.  Branchport,  &c.  Plank  R.  Co.  5  Parker, G04. 
People  V.  Brannigan,  31  Cal.  337 
People  V.  Bransby,  33  N.  Y.  525 
People  V.  Breese,  7  Cow.  429 

People  V.'  Brewer,  27  Mich.  134;  2  Green's  Cr.  R.  562, 
People  Y.  Brighani,  2  Mich.  550  .       •      . 

People  V.  Brotherton.47Cdl.  388;  3  Green's  Cr.  R.  444. 

People  V.  Brown,  33  Wend.  47  .  .  . 

"  "        27  Cal.  500 


185. 


Bail  and  recognizance,  68. 

Rape,  519. 

Homicide,  322. 

Rape.  530. 

Homicide,  288. 

Robbery,  547. 

Bail  and  recognizance,  63. 

Larceny,   375. 

Homicide,  275. 

Homicide,  279  ;  Insanity,  359. 

Certiorari,  97. 

Evi.  139;Homi.  370,339,330;Nol. 

pros.  465 ;  Verdict,  638 ;  Writ  of 

error,  661. 
Larceny,  394. 
Rape,  526. 

Bail  and  recognizance,  63. 
New  trial,  459. 
Insanity,  357. 
Witness,  649. 
Assault  and  batteiy,  47. 
Malicious  mischief,  429. 
Forgery   and   counterfeiting,  218; 

Evidence,  150;  Witness,  657. 
Bail  and  recognizance,  67,  69. 
Conspiracy,  108,  109. 
Bill  of  exceptions,  81 ;    Evidence^ 

151,  160;  Trial,  596,  600. 
Larceny,  391,  303. 
Misdemeanor,  439. 
Trial,  627  ;  Verdict,  642. 
Judgment,  363. 
New  trial,  448,  454. 
Witness,  648. 
Burglary,  87. 
Pardon,  495. 
Habeas  corpus,  252. 
Larceny,  383. 

Fugitives  from  justice,  235. 
Witness,  653. 

Threaten'g  to  accuse  of  crime,  585, 
Nuisance,  485,  486. 
Trial,  627. 

Ass.  &  batt.  32,35;    Trial,  613. 
Indictment,  329. 
Seduction,  553  ;  Witness,  656. 
Forgery  and  counterfeiting,  197. 
Conspir.  109;  Forg.  &  counterf'g, 

196,  219  ;  New  trial,  449. 
Bail  and  recognizance,  59,  60. 
Homicide,  268. 


734 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Brown,  C  Parker,  CG6  .  .  , 

"  "47  Cal.  447;  2  Green's  Cr.  R.  45G. 

People  V.  Browne,  1  Wheeler's  Cr.  Cas.  124 
People  V.  Bruno,  6  Parker,  657 

People  V.  Budge,  4  Parker,  519    . 


People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 


People  V. 
People  v. 
People  V. 
People  V. 
People  V. 
People  V. 


People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 

569 
People  V. 
People  V. 
People  V. 


Bumberger,  45  Cal.  050 
Burden,  9  Barb.  467      . 
Burgess,  35  Cal.  115 
Burke,  11  Wend.  139     . 
Burroughs,  1  Parker,  211    . 
Burtnett,  5  Parker,  113 
Bush,  3  Parker,  552 
Butler,  16  Johns.  203     . 

' '       3  Parker,  377 

"       8  Cal.  435 

"       3  Cow.  347 
Byrd,  1  Wheeler's  Cr.  Cas.  242 
Cady,  6  Hill,  490     . 
Csesar,  1  Parker,  645     . 
Calder,  30  Mich.  85 
Call,  1  Denio,  120 
Campbell,  40  N.  Y.  133      . 
30  Cal.  312 
4  Parker,  386     . 

Carabin,  14  Cal.  438     . 

Carey,  4  Parker,  238 

Carkhuff,  24  Cal.  640     . 

Carmichael,  5  Mich.  10 

Carnal,  1  Parker,  256     . 

Carpenger,  5  Parknr,  228    . 

Carroll,  3  Parker,  73      . 

Carter,  29  Barb.  208 

Caryl,  3  Parker,  326      . 

Caswell,  21  Wend.  86 

Caton,  35  Mich.  388 

Cavanagh,  3  Parker,  650     . 

Chadwick,  2  Parker,  163 

Chambers,  18  Cal.  382 

Chandler,  4  Parker,  231 

Chapman,  4  Parker,  56 

Chappell,  27  Mich.  486  ;  2  Green's  Cr.  P. 


Charles,  3  Denio,  212;  1  N.  Y. 
Christman,  66  111.  162    . 
Clark,  10  Mich.  310 
"3  Seld.  385 
People  V.  Clary,  17  Wend.  374 


180 


New  trial,  462 ;  Spirituous  liquors, 
sale  of,  577. 

Rape,  529. 

Religious  meet'g,  disturb,  of,  540. 

Bill  of  exceptions,  81 ;  Judgment, 
363  ;  Sentence,  557. 

Bail  and  recognizance,   61  ;    Cor- 
oner's inquest,  114. 

Trial,  623. 

Perjury,  511. 

Burglary,  90 ;  Indictment,  350. 

Larceny,  385. 

Perjury,  508,  509,  510. 

Habeas  corpus,  250,  254. 

Burglary,  86,  89,  93  ;  Trial,  630. 

Arson,  23. 

Homicide,  306,  311 ;  N.  trial,  405. 

Homicide,  309. 

Sentence,  558. 

False  pretenses,  177. 

Forgery  and  counterfeiting,  199. 

Larceny,  396,  397. 

Bigamy,  79,  80. 

Larceny,  374. 

Arrest,  20. 

Homicide,  318. 

Indictment,    349  ;      Jurisdiction, 

364;  Larceny,  384. 
Larceny,  413. 
Nuisance,  475,  478. 
Homicide,  290. 
Homicide,  260. 
New  trial,  443,  451,  452. 
Trespass,  589. 

Disorderly  person,  116;  Wit.  656. 
Forcible  entry  and  detainer,  1 93. 
Assault  and  bat.  37,  38,  45,  46. 
Receiving  stolen  property,  539. 
Forgery  and  counterfeiting,   197. 
Certiorari,  97. 

Forgery  and  counterfeiting,  215. 
Larceny,  408. 
Evidence,  163. 
False  pretenses,  183. 

Fire  arms,  190. 

Indictment,  336;  Lottery,  427,428. 

Bastardy,  75. 

Conspiracy,  106. 

Homicide,  256,  306. 

Bail  and  recognizance,  68. 


TABLE   OF   CASES. 


735 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Cleaveland,  40  Cal.  577 

People  V.  Clements,  26  N.  Y.  193;  5  Parker,  337      . 

People  V.  Clough,  17  Wend.  351 

People  V.  CoflFnian,  24  Cal.  230 

People  V.  Cogdell,  1  Hill,  94         ,  .  . 

People  V.  Colbern,  1  Wheeler's  Cr.  Cas.  479 

People  V.  Cole,  6  Parker,  6S5         . 

People  V.  Cole,  43  N.  Y.  508  ;  affi'g  2  Lans.  370 

People  V.  Collier,  1  Manning,  137 

People  V.  Collins,  48  Cal.  277  ... 

People  V.  Colt,  3  Hill,  432  ..  . 

People  V.  Conger,  1  Wheeler's  Cr.  Cas.  448  . 

People  V.  Connor,  17  Cal.  354        . 

People  V.  Cook,  5  Parker,  351 

"  "10  Mich.  164         . 

"  "2  Parker,  12  . 

People  V.  Cooke,  6  Parker,  31       . 
People  V.  Corbett,  28  Cal.  328  ..  . 

People  V.  Corbin,  56  N.  Y.  363     . 
People  V.  Corning,  2  Comst.  1  .  .  . 

People  V.  Costello,  1  Denio,  83      . 

"  "         15  Cal.  350 

People  V.  Cotteral,  18  Johns.  115 
People  V.  Cox,  40  Cal.  275       .... 
People  V.  Cramer,  5  Parker,  171  . 
People  V.  Crissie,  4  Denio,  525 
People  V.  Cronin,  34  Cal.  191         . 
People  V.  Cummings,  3  Parker,  343     . 

People  V.  Cunningham,  3  Parker,  531      . 
"  '•  6  Parker,  398 

"  "  1  Denio,  524 

People  V.  Curling,  1  Johns.  320 
People  V.  Curtis,  50  N.  Y.  321       . 

"        50  Cal.  95      . 
People  V.  Cyphers,  5  Parker,  006  ;  affi'd  31  N.  Y.  373. 
People  V.  Dalton,  15  Wend.  581 

"        2  Wheeler's  Cr.  Cas.  161    . 
People  V.  Damon,  13  Wend.  351 
People  V.  Davis,  56  N.  Y.  95    . 


4  Parker,  61 
21  Wend.  309 

36  N.  Y.  77 
61  Barb.  456 


Larceny,  408. 

Forgery  and  counterfeiting,  213. 

False  pretenses,  176. 

Insanity,  357. 

Larceny,  380. 

Witness,  650. 

Bail  and  recognizance,  61,  63; 
Evidence,  150;   Homi.  316,  321. 

Larceny,  375. 

Perjury,  507. 

Evid.  158;  RoVy,  548;  Tri.  614. 

Homicide,  271. 

False  pretenses,  173. 

Larceny,  393. 

Evidence,  158;  Receiving  stolen 
property,  534. 

Former  acquittal  or  convic.  224. 

Larceny,  398. 

Evid.  128  ;  False  pretenses,  174. 

Verdict,  642. 

Forgery  and  counterfeiting,  221. 

Writ  of  error,  662. 

Evidence,  132, 158  ;  Misdemeanor, 
439 ;  Witness,  649. 

Homicide,  283. 

Arson,  25. 

Embezzlement,  121. 

Former  acquittal  or  conv'tn,  233. 

False  pretenses,  181,  183. 

Homicide,  284. 

Bill  of  exceptions,  81 ;  Jurisdic- 
tion, 364  ;  Jury,  371. 

Bail  and  recognizance,  63. 

Homicide,  283  ;  Witness,  654. 

N.  trial,  448 ;  Nuisance,  471,  484, 
485 ;  Trial,  615 ;    Witness,  658. 

Forgery  and  counterfeiting,  207. 

Fugitives  from  justice,  233. 

Perjury,  511. 

Grand  jury,  247. 

Embezzlement,  1 19. 

False  pretenses,  176. 

Trial,  596,  597. 

Abortion,  4;  Conspir.  109;  Evid. 
136  ;  Homicide, 292 ;  Indictment, 
335,  330,  351. 

Assault  and  battery,  50,  57. 

Evidence,  170;  Forgery  and  coun- 
terfeiting, 215. 

Jurisdiction,  350. 

Jurisdiction,  364,  367  ;  Stats.  581. 


i36 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Davis,  45  Barb.  494 

People  V.  Degey,  2  Wheeler's  Cr.  Cas.  135     . 
People  V.  De  La  Guerra,  31  Cal.  41G 
"  31  Cal.  459 

People  Y.  Deuton,  3  Johns.  Cas,  275 
People  V.  Derby,  1  Parker,  393 
People  V.  Deviue,  44  Cal.  453  ;  3  Green's  Cr.  R.  405. 

People  Y.  Diaz,  6  Cal.  343  ... 

People  Y.  Dibble,  5  Parker,  38  .  .  . 

People  Y.  Divine,  5  Parker,  63     . 
People  Y.  Dixon,  4  Parker,  651 

"  "4  Parker,  654    . 

People  V,  Doe,  1  Manning,  451 
People  Y.  Dohring,  59  N.  Y.  374  ;  overruling  3  N.  Y, 

'Supm.  Ct.  N.  S.  458  ... 

People  Y.  Donnelly,  3  Parker,  183 
People  v.  Douglass,  4  Cow.  36 
People  Y.  Doyle,  31  N.  Y.  578 
People  Y.  Duffy,  5  Barb.  305 
People  Y.  Eastwood,  14  N.  Y.  563     . 

People  Y.  Eckert,  16  Cal.  110 

People  v.  Eckford,  7  Cow.  103     . 

People  V.  Edwards,  41  Cal.  640 

People  Y.  Ellis,  15  Wend.  371 

People  Y.  Elyea,  14  Cal.  144 

People  v.  English,  30  Cal.  214      . 

People  v.  Enoch,  13  Wend.  159 

People  v.  Erwin,  4  Denio,  129 

People  v.  Evans,  40  N.  Y.  1     . 

People  v.  Fair,  43  Cal.  137;  1  Green's  Cr.  Reps.  217. 

People  v.  Fallon,  6  Parker,  356 ;  affi'd  3  N.  Y.  Ct.  of 

App.  DeciSc  83      . 
People  Y.  Farrell,  30  Cal.  316        . 
31  Cal,  576         , 
People  Y,  Farrington,  14  Johns.  347 
People  v,  Fauerback,  5  Parker,  311 
People  Y,  Fenwick,  45  Cal,  287 
People  Y,  Field,  53  Barb,  198;  58  Ib,270;  1  Lans,223, 


People  V.  Finch,  5  Johns,  336 
People  V,  Finnegan,  1  Parker,  147 
People  V.  Fish,  4  Parker,  206 
People  Y,  Fisher,  14  Wend,  9 
People  Y,  Fitch,  1  Wend,  198 
People  Y.  Fitzpatrick,  5  Parker,  36 
People  v.  Flanders,  18  Johns.  163 
People  v.  Folmsbee,  60  Barb,  480 
People  V,  Forbes,  4  Parker,  611 


Spirituous   liquors,   sale  of,    574 ; 

Verdict,  640. 
Relig.  meet,  disturb,  of,  540. 
Embezzlement,  122. 
Indictment,  338. 
Trial,  638, 

Bail  and  recognizance,  67,  70, 
Cor,   inq,  114;    Evid.  133;    Wit. 

657. 
Continuance,  113. 
New  trial,  447. 
Habeas  corpus,  253. 
Bail  and  recognizance,  61,  63. 
Evidence,  152. 
Homicide,  304,  331. 

Rape,  519;  Witness,  653. 

Witness,  650. 

New  trial,  453,  456. 

Evidence,  154,  158. 

Bail  and  recognizance,  59. 

Evidence,  165;  Intoxication  as  an 

excuse  for  crime,  361. 
Witness,  660. 
Conspiracy,  105, 
Homicide,  398, 
Trial,  638. 

Evidence,  140;  Witness,  653. 
Assault  and  battery,  49. 
Homicide,  369;  Indictment,  347. 
Nuisance,  475. 
Subornation  of  perjury,  514. 
Evidence,  151 ;  Homicide,  299. 

Larceny,  395,  403, 

Evi,  159;  Forg,  and  counterf,  219, 

Insanity,  359. 

Forgery  and  counterfeiting,  201. 

Unwholesome  provis.  sale  of,  632. 

Evidence,  150. 

Fore,  entry  and  detainer,  190, 191, 

192,  193. 
Forgery  and  counterfeiting,  201. 
Bill  of  exceptions,  81;  Evid.  170. 
False  pretenses,  178,  183. 
Conspiracy,  103. 
Forgery  and  counterfeiting,  199. 
Assault  and  battery,  56. 
Forgery  and  counterfeiting,  201. 
Bail  and  recognizance,  62. 
Vagrant,  633,  634. 


TABLE   OF   CASES. 


737 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Fox,  25  Mich.  493  . 

People  V.  Francis,  38  Cal.  183 
People  V.  Frank,  28  Cal.  507  . 

People  V.  Franklin,  3  Johns.  Cas.  299 

People  V.  Free],  48  Cal.  43G 

People  V.  Freeman,  4  Denio,  9  .  .  . 

People  V.  Frost,  5  Parker,  53        . 

People  agst.  Fulton,  11  N.  Y.  94 

People  V.  Gaige,  26  Mich.  30;  1  Green's  Cr.Reps.524. 

People  V.  Gallowa\%  17  Wend.  540     . 

People  V,  Galvin,  9  Cal.  115 

People  V.  Garbutt,  17  Mich.  9  .  .  . 

People  V.  Garcia,  25  Cal.  531 

People  V.  Gardiner,  6  Parker,  143 

People  V.  Gardner,  1  Wheeler's  Cr.  Cas.  38    . 

People  V.  Gassaway,  23  Cal.  51 

People  V.  Gates,  46  Cal.  52;  2  Green's  Cr.  Reps.  425. 

"  "       15  Wend.  159      . 

"  "       18  Wend.  311 

People  V.  Geiger,  49  Cal.  643 
People  V.  Genet,  59  N.  Y.  80 
People  V.  Getchell,  6  Mich.  49G 
People  V.  Getty,  49  Cal.  581  ... 

People  V.  Gibbons,  49  Cal.  557;  1  Green's  Cr.Reps.592. 
People  V.  Gibson,  17  Cal.  283  ... 

People  V.  Gilkinson,  4  Parker,  26 


People  V.  Gill,  6  Cal.  637         . 

"45  Cal.  285 
People  V.  Gilmore,  4  Cal.  376 
People  V.  Girardin,  1  Mann.  90     . 
People  V.  Golden,  3  Parker,  330 
People  V.  Gonzales,  35  N.  Y.  49 
People  V.  Goodrich,  3  Parker,  518 
People  V.  Goodwin,  1  Wheeler's  Cr.  Cas.  434 
"  "         1  Wheeler's  Cr.  Cas.  253 

'^  "         18  Johns.  187 

People  V.  Graham,  21  Cal.  261 

"  "         6  Parker,  135 

People  V.  Granice,  50  Cal.  447 
People  V.  Graves,  o  Parker,  134 

People  V.  Gray,  25  Wend.  465 
"5  Wend.  289 
"  "      4  Parker,  616 

People  V.  Green,  5  Kill,  647 
"       1  Parker,  11 
"  "       1  Wheeler's  Cr.  Cas.  152 

47 


Perjury,  507. 

Insanity,  358. 

Evidence,  126 ;  Forg.  and  counter- 
feiting, 210;  Indictment,  338. 

Forgery  and  counterfeiting,  205. 

Homicide,  250. 

Trial,  594. 

Trial,  606. 

Forcible  entry  and  detainer,  192. 

Perjury,  503,  508. 

False  pretenses,  174,  178. 

Sentence,  555. 

Insanity,  358,  359 ;  Intoxication  as 
an  excuse  for  crime,  362. 

E-sddence,  136. 

Bill  of  exceptions,  81  ;  Jurisd.  366. 

Forgery  and  counterfeiting,  220. 

Larceny,  4o8 ;  Robbery,  549. 

Adultery,  12,  13,  14. 

Arson,  28. 

Evi.  150;  False  pret.  173,178,  185. 

Homicide,  262,  387. 

Escape,  125. 

False  pretenses,  170. 

Larceny,  408. 

Evidence,  142. 

Homicide,  300. 

Indictment,  336;  Spirit,  liquors, 
sale  of,  569,  570. 

Homicide,  265. 

Larceny,  408. 

Former  acquittal  or  convict.  229. 

Obscene  publications,  487. 

Larceny,  396. 

Homic.  37.3,  278 ;  New  trial,  447. 

New  trial,  441. 

Bail  and  recognizance,  63. 

Homicide,  308. 

Trial,  637. 

Evid.  138;  New  trial,  447;  Rape, 
531 ;  Venue,  change  of,  634. 

Forgery  and  counterfeit.  19G,  207. 

Jurisdiction,  364. 

Disinterring  the   dead,   115;    In- 
dictment, 336 ;  Trial,  630. 

Accessory,  11. 

New  trial,  450. 

Vagrant,  634. 

Bastardy,  75. 

Evid.  137,  155;  Horn.  293,296,297. 

Receiving  stolen  property,  539. 


738 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Green,  13  Wend.  55  .  .  . 

People  V.  Grunzig,  1  Parker,  299 

People  V.  Hackley,  24  N.  Y.  74 

People  V.  Haddock,  12  Wend.  475 

People  V.  Haggerty,46  Cal.354 ;  2  Green'sCr.Reps.431. 

People  V.  Hall,  6  Parker,  642        . 

"  "     19  Cal.  425      . 

People  V.  Hamilton,  46  Cal.  540;  2  Green's  Cr.  Reps, 

432      . 
People  V.  Harley,  8  Cal.  890 
People  v.  Harriden,  1  Parker,  344 
People  V.  Harriot,  3  Parker,  112 
People  V.  Harris,  29  Cal.  078 
People  V.  Harrison,  8  Barb.  560 
People  V.  Hartung,  4  Parker,  319 
.     "  '•  4  Parker,  256 

People  V.  Hawkins,  34  Cal.  181 
People  V.  Haynes,  55  Barb.  450  .  .  . 

"  "        14  Wend.  546;  11  lb.  557 

People  V.  Heffernan,  5  Parker,  393 
People  V.  Henderson,  1  Parker,  560 

"28  Cal.  465        . 
People  V.  Hendrickson,  1  Parker,  406;  10  N.  Y.  13. 

People  V.  Hennessey,  15  Wend.  147 
People  V.  Herrick,  13  Wend.  87 
People  V.  Hewitt,  2  Parker,  20 
People  V.  Hicks,  15  Barb.  153 
People  V.  Hoag,  2  Parker,  36 
People  V.  Holbrook,  18  Johns.  90 
People  V.  Holcomb,  3  Parker,  656 
People  V.  Holmes,  6  Parker,  25     , 

'•  "        3  Parker,  567 

People  V.  Honeyman,  3  Denio,  121 
People  V.  Honsbell,  10  Cal.  83 
People  V.  Hood,  6  Cal.  236 
People  V.  Horr,  7  Barb.  9 
People  V.  Horton,  4  Parker,  222 

"  "       4  Mich.  67 

People  V.  Howe,  2  N.  Y.  Supm.  N.  S.  383 
People  V.  Howell,  4  Johns.  296 
People  V.  Hoy  Yen,  34  Cal.  176 
People  V.  Hughes,  29  Cal.  257 

41  Cal  234       . 
People  V.  Hulse,  3  Hill,  309     . 
People  V.  Hunckeler,  48  Cal.  331 
People  V.  Hyler,  2  Parker,  566 
People  V.  Ingersoll,  14  Abb.  Pr.  N.  S.  23;  1  Green's  Cr 

Reps.  035  ..... 

People  V.  Irwin,  4  Deaio,  129 


Writ  of  error,  662. 

Homicide,  296. 

Contempt,  110,  111;  Witness,  655. 

Bastardy,  76. 

Arson,  23. 

Robbery,  545,  549. 

Larceny,  392. 

Rape,  530. 

Trial,  615. 

Incest,  325. 

Indictment,  326. 

Voting,  643. 

Forgery  and  counterfeiting,  200. 

Homicide,  273;  Jurisdiction,  367. 

New  trial,460 ;  Trial,626 ;  Yerd.642. 

Larceny,  387. 

Arson,  27;  Evidence,  158.  159;  In- 
dictment, 329  ;  Wit.  659,  680. 

False  pretenses,  176,  178,  186. 

Indictment,  353. 

Arson,  24,  27. 

Homicide,  299;  Sentence,  554. 

Evidence,    141 ;    Homicide,  280 ; 
Writ  of  error,  663. 

Embezzlement,  119;  End.  149. 

False  pretenses,  178,  187,  189. 

Forgeiy  and  counterfeiting,  217. 

Habeas  corpus,  252, 

Misdemeanor,  437. 

Larceny,  390,  392,  404. 

Search  warr.  549,  550 ;  Warr.  647. 

Trial,  615. 

Writ  of  error,  662. 

Larceny,  400  ;  Trial,  601. 

Ass.  and  batt.  53;  Homicide,  261. 

Arson,  26. 

Malicious  mischief,  432. 

Contin.  Ill,  112;  Indict.  353. 

Homicide,  260. 

Embezzlement,  120. 

Forgery  and  counterfeiting,  213. 

Larceny,  410. 

Arson,  30. 

Former  acquittal  or  convict.  225. 

Rape,  527. 

Trial,  611. 

Grand  jury,  248. 

Bail  and  recognizance,  67. 
Nuisance,  476. 


TABLE   OF   CASES. 


739 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Jackson,  3  Hill,  92 
"  "3  Parker,  590  . 

"  "       3  Denio,  101 

*•  "       8  Barb.  637     . 

"  "       7  Mich.  432 

"  "       3  Parker,  391  . 

People  V.  Jayne,  27  Barb.  58 
People  V.  Jefferds,  5  Parker,  518 
People  V.  Jenkins,  16  Cal.  431 
People  V.  Jenness,  5  Mich.  305     . 
People  V.  Jerome,  1  Mann.  142 
People  V.  Jersey,  18  Cal.  337 
People  V.  Jewett,  6  Wend.  386 

"  '^        3  Wend.  314      . 

People  V.  Jillson,  3  Parker,  234 
People  V.  Jim  Ti,  32  Cal.  60 
People  V.  Johnson,  41  Cal.  452 
"  "  12  Johns.   291 

"  "1  Parker,  291 


People  V.  Jones,  31  Cal.  565 ;  32  lb.  80  . 
"  "       54  Barb.  311 

"  "      44  lb.  311 

"  "      5  Lans.  340    . 

People  V.  Josephs,  7  Cal.  120 
People  V.  Josselyn,  39  Cal.  393 
People  V.  Juarez,  28  Cal.  380 
People  V.  Judges  of  Dutchess  O.  and  T.  2  Barb 
People  V.  Kaatz,  3  Parker,  129     . 
People  V.  Kaina,  45  Cal.  292 
People  V.  Kane,  4  Denio,  530 
People  V.  Keefer,  18  Cal.  636 
People  V.  Kelly,  38  Cal.  145 

"       28  Cal.  423  . 

"       35  Barb.  444 
People  V.  Kendall,  25  Wend.  399 
People  V.  Kennedy,  32  N.  Y.  141 
People  V.  Kent,  1  Doug.  42   . 
People  V.  Kenyon,  5  Parker,  254 ;  26  N.  Y.  203 
People  V.  Kerrains,  1  N.  Y.  Supm.  N.  S.  333 
People  V.  King,  1  Wheeler's  Crim.  Cas.  33 

"      27  Cal.  507    . 
People  V.  Kingsley,  2  Cow.  522  . 
People  V.  Knapp,  26  Mich.  106;  1  Green's  Cr.  R 
People  V.  Knickerbncker,  1  Parker,  302  . 
People  V.  Koeber,  7  Hill,  39 
People  V.  Kohler,  5  Cal.  72 
People  V.  Krummer,  4  Parker,  217     . 


283 


252. 


Abortion,  7. 

Evidence,  108;  Larceny,  377. 

Gaming,  237,  242;  Lot'y,  428,  475. 

Larceny,  387,  390. 

Nuisance,  472. 

Rape,  525. 

Bastardy,  75. 

Habeas  corpus,  251. 

Burglary,  87. 

Evi.  158;  Incest,  325;  N.  tr.    450. 

Libel,  422. 

Larceny,  412. 

Abatement,  1. 

Grand  jury,  248. 

Assault  and  battery,  37. 

Evidence,  147. 

Evidence,  148. 

False  pretenses,  173. 

Homicide,  256,  310;  Receiving 
stolen  property,  534,  535. 

Evidence,  149,  157. 

Innkeeper,  354;  Officer,  488;  Spir- 
ituous liquors,  sale  of,  566. 

License.  426. 

Robbery,  548. 

Homicide,  299. 

Abortion,  6. 

Larceny,  382. 

New  trial,  4i0. 

Larceny,  383;  Trial,  615. 

Evidence,  150. 

Bail  and  recognizance,  64. 

Assault  and  battery,  52. 

Jurisdiction,  367. 

Larceny,  408. 

Statutes,  582. 

False  pretenses,  176. 

Evidence,  126. 

Larceny,  389,  392. 

Seduction,  550,  551,  553. 

Assault  and  battery,  49,  52,  53,  56. 

Evidence,  157. 

Homicide,  275. 

Forgery  and  counterfeiting,  203. 

Homicide,  232,  293,  314. 

Trial,  594,  603. 

Bail  and  recognizance,  01,  65. 

Trial,  605. 

Demurrer,  115;  False  pretenses, 
184 ;  Forgery  and  counterfeiting, 
199;  Former  acquittal  or  con- 
viction, 227. 


740 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  agst.  Lake,  12  N.  Y.  358;  1  Parker,  495. 
People  V.  Lamb,  2  Keyes,  3G0 ;  affi'g  54  Barb.  342     , 

People  V.  Lambert,  5  Mich.  349    . 

''  "  5  Denio,  9  .  .  , 

People  V.  Lawrence,  21  Cal.  368  . 
People  V.  Lawson,  17  Johns.  277 
People  V.  Lawton,  56  Barb.  126    . 
People  V.  Lee,  17  Cal.  76,  78   . 

"     6  Cal.  353  . 
People  V.  Leonard,  11  Johns.  504 
People  y.  Levison,  16  Cal.  98         . 
People  V.  Lewis,  3  N.  Y.  Ct.  of  Aj^peals  Decis,  535. 

"       36  Cal.  531 
People  V.  Linn,  23  Cal.  150    . 
People  Y.  Lohman,  2  Barb.  450    . 

2  Barb.  216 ;  1  N.  Y.  379 

People  V.  Lombard,  17  Cal.  316 

People  V.  Long  Island  R  R,  Co.  4  Parker,  602 

People  V.  Loomis,  4  Denio,  380     . 

People  V.  Loop,  3  Parker,  559 

People  V.  Loughridge,  1  Neb.  11 

People  V.  Lynch,  29  Mich.  274 

11  Johns.  549    . 
People  V.  Mack,  1  Parker,  567 

"     2  Parker,  673      . 
People  V.  Mahoney,  18  Cal.  185 
People  V.  Mallon,  3  Lans.  224 
People  V.  Maloney,  1  Parker,  593 
People  V.  Marion,  29  Mich.  31      . 

"         28  Mich. .255;  2  Green's  Cr.  R.  5^ 
People  V.  Marks,  4  Parker,  153     . 
People  V.  Martin,  47  Cal.  112 

"  "1  Parker,  187     . 

People  V.  Mather,  4  Wend.  229 


People  V.  Mayer,  16  Barb.  362  . 
People  V.  McArdle,  5  Parker,  180 
People  V.  McCann,  3  Parker,  272;  IG  X.  Y. 


People  V.  McCloskey,  5  Parker,  57 
People  V.  McCormack,  4  Parker,  9 
People  V.  McCoy,  39  Barb.  73 
People  V.  McCranie,  6  Parker,  49 
People  V.  McCrea,  32  Cal.  98 
People  V.  McDaniels,  1  Parker,  198 
People  V.  McDonald,  39  Cal.  697 


Evidence,  161,  162. 

Evidence,  150 ;  Homicide,  298, 
316 ;  Verdict,  639. 

Bigamy,  79,  80. 

Nuisance,  471. 

Homicide,  297. 

Nuisance,  470. 

Burglary,  94,95;  Evidence,  158. 

New  trial,  454;  Verdict,  541. 

Venue,  change  of,  634. 

Forcible  entry  and  detainer,  194. 

Receiving  stolen  property,  539. 

Homicide.  276. 

Intox.  as  an  excuse  for  crime,  360. 

Larceny,  400. 

Bail  and  recognizance,  62. 

Evidence,  157 ;  Indictment,  345 ; 
Witness,  649,  655. 

Homicide,  299,  315. 

Venue,  change  of,  634. 

Larceny,  383. 

Larceny,  389. 

Larceny,  385. 

Rai^e,  530. 

Treason,  587. 

Bail  and  recognizance,  59,  65. 

New  trial,  457. 

Venue,  change  of,  634. 

Trial,  594,  600. 

Larceny,  384. 

Evidence,  156  ;  Forgery  and  coun- 
terfeiting, 207,  216. 

Forgery  and  couuterf g,  210, 212. 

Burglary,  92. 

Assault  and  battery,  42. 

Habeas  corpus,  253. 

Conspiracy,  102,  104,  105,  107; 
Trial,  596,  597,  598,  601;  Wit- 
ness, 656,  658,  659. 

Habeas  corpus,  249. 

Seduction,  553. 

Ev.  162;  Gr.  jury,248;  Hom.279; 
Ins.  359 ;  Juris.  364 ;  New  trial, 
443 ;  Writ  of  error,  662. 

Bur.  89;  For.  acq.  or  convict.  230. 

Dis.  person,  116;  Habeas  cor.  249, 

Bail  and  recognizance,  67,  68. 

Homicide,  285. 

Evidence,  139. 

Robbery,  546. 

Evidence,  130. 


TABLE   OF   CASES. 


'41 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  McDonald,  43  K  Y.  Gl 

. 

"                     "9  Midi.  150 

People  V.  McDonnell,  47  Cal.  134 ;  3  Green's  Cr.  R.  441. 

People  V.  McFall,  1  Wheeler's  Crini.  Cas. 

107 

People  V.  McGarren,  17  Wend.  460 

People  V.  McGee,  1  Denio,  19 

People  V.  McGeery,  6  Parker,  653 

People  V.  McGinnis,  1  Parker,  387     . 

People  V.  McGungill,  41  Cal.  429; 

People  V.  McKay,  18  Johns.  212 

People  V.  McKiune}',  3  Parker,  510 

People  V.  McLean,  2  Johns.  381 

People  V.  McLeod,  1  Hill,  377      . 

People  agst.  McMahon,  15  N.  Y.  384 

. 

People  V.  McMakin,  8  Cal.  547      . 

People  V.  McMurray,  4  Parker,  234'    . 

. 

1  Wheeler's  Cr.  Cas. 

63       . 

People  V.  McWhorter,  4  Barb.  438     , 

. 

People  V.  Meighan,  1  Hill,  298     . 

People  V.  Melvane,  39  Cal.  614 

People  V.  Melvin,  2  Wheeler's  Crim.  Cas. 

263      . 

People  agst.  Merrill,  14  N.  Y.  74 

Peoiile  V.  Milgate,  5  Cal.  127 

People  V.  Miller,  14  Johns.  370 

. 

"33  Cal.  99 

People  V.  Millspaugh,  11  Mich.  278    . 

People  V.  Mitchell,  2  N.  Y.  Supm.  N.  S.  1 

73 

People  V.  Monroe  0.  &  T.  20  AVend.  108 

. 

People  V.  Moody,  45  Cal.  289;  2  Green's 

Cr.  R.  420. 

"                 "5  Parker,  568 

People  V.  Moore,  2  Douglas,  1 

"3  Parker,  465 

"       45  Cal.  19 

"       15  Wend.  419 

. 

People  V.  Moring,  3  N.  Y.  Ct.  of  App.  Dec.  539;  affi', 

47  Barb.  642;  8  Keyes,  374    . 

People  V.  Morrison,  1  Parker,  635 

. 

People  V.  Mosher,  2  Parker,  195 

People  V.  Murphy,  45  Cal.  137;  2  Green's 

Cr.  R.  414 

"         39  Cal.  53 

47  Cal.  103 

. 

"                  "         5  Parker,  130   . 

People  V,  Murray,  8  Cal.  518 

"          41  Cal.  60 

"                "          10  Cal.  309 

, 

"                 "          14  Cal.  159       . 

"5  Parker,  577 

People  V.  Myers,  20  Cal.  76 

People  V.  Nash,  5  Parker,  473. 

People  V.  Nestle,  19  N.  Y.  583      . 

People  V.  Newberry,  20  Cal.  439 

• 

Larceny,  376. 

Rape,  520,  535. 

Insanity,355;  New  trial, 459. 

Evidence,  149. 

Larceny,  377,  379. 

Rape,  531,  534. 

Sentence,  555,  557 ;  Trial,  590. 

Evidence,  166;  Perjury,  510. 

Witness,  650. 

Jury,  870;  New  trial,  443. 

Perjury,  497. 

Jury,  370. 

Hab.  c.  253 ;  Horn.  300 ;  Nol.  p.  465. 

Evidence,  136,  141. 

Assault  and  battery,  53. 

Accessory,  8. 

Assault  and  battery,  33. 

Evidence,  153. 

Bastardy,  76. 

Evidence,  130,  158;  Larceny,  408. 

Conspiracy,  103. 

Writ  of  error,  661. 

Homicide,  399,  301. 

False  pretenses,  175. 

Trial,  629. 

Seduction,  551. 

Disorderly  jiersou,  116. 

Indictment,  353. 

Homicide,  377. 

]\Ialicious  mischief,  439. 

Bail  and  recognizance,  69. 

Commitment,  99. 

Evidence,  138. 

Witness,  657,  660. 

Extortion,  173. 

New  trial,  440 ;  Rape,  532. 

Bigamy,  78. 

Ev.  135;  Hom.  288;  Judg.  3G3. 

Homicide,  287. 

Larceny,  405,  412. 

License,  435. 

Burglary,  91. 

Evidence,  139. 

Homicide,  398. 

Incest,  334. 

Jurisdiction,  368. 

Arson,  36,  28. 

Commitment,  98. 

Writ  of  error,  661. 

Accessory,  11;  Homicide,  388. 


742 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 

People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 


People  V. 
People  v^ 
People  V. 
People  V. 


Nichol,  34  Cal.  211 
Nichols,  3  Parker,  579 
Noakes,  5  Parker,  291 
Nolan,  22  Mich.  229 
Norton,  7  Barb.  477       . 
N.  Y.  Cent.  R.  P.  Co.  5  Parker,  195 
N.  Y.  Gas  Light  Co.  64  Barb.  55 
O'Brien,  4  Parker,  203 
Olcott,  3  Johns.  Cas.  301 
Olivera,  7  Cal.  403 
Olmstead,  30  Mich.  431 
O'Neil,  48  Cal.  257 
Orcutt,  1  Parker,  252 
Osborn,  1  Wheeler's  Cr.  Cas.  S7     . 
Osmer,  4  Parker,  242    . 
Page,  3  Parker,  600 
Paige,  Idaho,  114 
Parish,  4  Denio,  153 
Park,  41  N.  Y.  21  ;  affi'g  1  Lans.  203 
Parker,  4  Johns.  424 
"        38  N.  Y.  85 
Parks,  44  Cal.  105;  2  Green's  Cr.  Rep 
Parshall,  6  Parker,  129 
Parsons,  6  Cal.  487  . 
Payne,  3  Denio,  88 
Peabody,  25  Wend.  473      . 
Peacock,  6  Cow.  72 
Pease,  3  Johns.  Cas.  333     . 
Pelham,  14  Wend.  48   . 
Perdue,  49  Cal.  425 
Perkins,  1  Wend.  91      . 
Phelps,  5  Wend.  9 
Phillips,  1  Wheeler's  Crim.  Cas.  155 

42  N.  Y.  200 

1  Parker,  95     . 
Phipps,  39  Cal.  3^3 
Pierpont,  1  Wheeler's  Crim.  Cas.  139 
Pine,  2  Barb.  56-3 
Pitcher,  15  Mich.  397    . 


People  V.  Plumraer,  9  Cal.  298 

People  V.  Pool,  27  Cal.  572 

People  V.  Porter,  3  Paiker,  14  .  . 

"      4  Parker,  524   . 
•'  "      5  Mich.  1      .  . 

"      1  Parker,  47      . 
People  V.  Powers,  2  Seld.  50 
People  V.  Preston,  1  Wheeler's  Crim.  Cas.  41 
People  V.  Quin,  1  Parker,  340 
People  V.  Quiun,  50  Barb.  128 
People  V.  Ramirez,  13  Cal.  173 


Homicide,  256,  275. 
Embezzlement,  119. 
Forgery  and  coun,  201 ;  Trial,  616. 
Burglary,  86,  89. 
Spirituous  liquors,  sale  of,  566. 
Nuisance,  480. 
Nuisance,  469. 
New  trial,  457. 

Conspiracy,  107,  110;  Trial,  637. 
Perjury,  505. 
Homicide,  314. 
Rape,  339.       ■ 

Arson,  33,  37  ;  Evidence,  130. 
Trespass,  588. 

Forgery  and  counterfeiting,  313. 
Indictment,  336. 

Forgery  and  counterfeiting,  219. 
False  pretenses,  183. 
Statutes,  582. 
Burglary,  88. 
Unwholesome  pro  v.  sale  of,  631. 
398.  Evidence,  129. 
Abduction,  3. 
Perjury,  505. 
Lottery,  428. 

Forgery  and  counterfeiting,  215. 
Forgery  and  counterfeiting,  196. 
Pardon,  495. 
Habeas  corpus,  250. 
Homicide,  320. 
Trial,  629. 

Perjury,  503,  503,  506. 
Assault  and  battery,  36. 
Evidence,  145;  New  trial,  441, 
Summary  conviction,  583. 
Evidence,  156. 

Receiving  stolen  property,  536. 
Verdict,  037. 
New  trial,   447;  Receiving  stolen 

property,  537,  538. 
New  trial,  445. 

Arrest,  33;  Homicide,  259,  261. 
Blasphemy,  84. 
Nolle  prosequi,  465,  466. 
Homicide,  284. 
Pardon,  493. 
Larceny,  396. 
Larceny,  406. 
Bill  of  exceptions,  82. 
Rape,  519. 
Trial,  615. 


TA[3LE   OF   CASES. 


743 


Title  of  Case  and  Report, 


Subject  and  Page. 


People  V.  Rando,  3  Parker,  333     . 
People  V.  Ransom,  7  Wend.  417 
People  V.  Ratbbuu,  '21  Wend.  509 

People  V.  Rawson,  Gl  Barb.  G19 

People  V.  Reagle,  GO  Barb.  527 


People  V.  Rector,  19  Wend.  5G9   . 
People  V.  Reed,  11  Wend.   157 

"  "       -17  Barb.  335 

People  V.  Reeder,  1  Wheeler's  Crim,  Cas.  418 
People  V.  Reihhart,  39  Cal.  449. 
People  V.  Reyes,  5  Cal.  347      .... 
People  V.  Reynolds,  2  Mich.  422 

People  V.  Rhoner,  4  Parker,  106 
People  V.  Richards,  1  Mann.  Mich.  210    . 
People  V.  Richardson,  4  Parker,  G5G 
People  V.  Richmond,  29  Cal.  414. 
People  V.  Riley,  5  Parker,  401 
People  V.  Roach,  17  Cal.  297         . 
People  V.  Robinson,  19  Cal.  40  .  .  . 

"  2  Parker,  308 

1  Parker,  649     . 
"  "  2  Parker,  235 

People  V.  Robles,  34  Cal.  591 

People  V.  Rodundo,  44  Cal.  538;  2  Green's  Cr.  R  411. 
People  V.  Rogers,  18  N.   Y.    9;   rev'g   3  Park.  332. 


People  V. 
People  V. 
People  V. 
People  V. 


People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 


Romaine,  1  Wheeler's  Crim.  Cas.  3G9   . 

Rowe,  4  Parker,  253 

Rnggles,  8  -Johns.  290 

Ruloff,  5  Parker,   77  .  .  . 

"      3  Parker,  401     . 

"  3  Parker,  126 
Runkel,  0  Johns.  334  . 
Rynders,  12  Wend.  425 
Satford,  5  Denio,  112  . 
Sammis,  0  N.  Y.  Supm.  N.  S.  328 
Sanchez,  24  Cal.  17  • 
Sands,  1  Johns.  78  ... 

Sanford,  43  Cal.  29 ;  1  Green's  Cr.  R.  G82. 
Satterlee,  12  N.  Y.  Supm.  N.  S.  167     . 
Saunders,  4  Parker,  196 
Scholtz,  2  Wheeler's  Crim.  Cas.  017     . 
Schryver,  42  N.  Y.  1 ;  40  Barb.  625 
Schuyler,  6  Cow.  572     . 
Schwarz,  33  Cal.  160 
Scoffffins,  37  Cal.  676    . 


Receiving  stolen  property,  537. 

New  trial,  443,  449. 

Evid.  152  ;  Forg.  and  counterft'g, 
197,202,213;  Trial,  595,596,598. 

Commit.  98,  99 ;  Habeas  corp.  353 ; 
Misdemeanor,   438 ;    Stat.  579. 

Cert.  96  ;  Form,  acquit,  or  con.  224 ; 
Trial,  627,  528 ;  Wit.  651 ;  Writ 
of  error,  661. 

Homicide,  291 ;  Witness,  656,  660. 

Forcible  ent.  and  det.  193,  194. 

Indictment,  341 ;  Verdict,  641. 

Evidence,  158. 

Evidence,  130. 

Trial,  598. 

New  trial,  453,  461;  Rec.  stolen 
property,  533,  536. 

Com.  98;  Forg.  and  counter.  201. 

Conspiracy,  104,  105. 

Habeas  corpus,  253. 

Larceny,  413. 

Jurisdiction,  363. 

Assault  and  batteiy,  54. 

Evidence,  136. 

Grand  jury,  248. 

Homicide,  255. 

Jury,  370. 

Larceny,  405,  413. 

Evidence,  142  ;  Larceny,  409. 

Evid.  142 ;  Intoxication  as  an  ex- 
cuse for  crime,  361. 

Larceny,  393. 

Arrest,  23. 

Blasphemy,  83. 

Contin.lll  ;  Ilab.cor.  352;  Tri.591 

Evidence,  148. 

Former  acquittal  or  convic.  331. 

Certiorari,  90. 

Forg.  and  count.  310;  Indict.  336. 

Spir.  liq.  sale  of,  57G  ;  Wit.  658. 

Venue,  change  of,  034. 

Homicide,  295,  296,  309. 

Nuisance,  480. 

Homicide,  268;  Witness,  648. 

Witness,  659. 

Former  acquittal  or  convic.  231. 

Conspiracy,  105. 

Homicide,  270,  323. 

Larceny,  375. 

Arson,  27. 

Homicide,  291. 


744 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Scott,  6  Mich.  287 
People  agst.  Sergeant,  8  Cow.  139 
People  V.  Shaver,  4  Parker,  45 
People  V.  Shaw,  1  Parker,  .827      . 

"       9  Cow.  778    . 

"       5  Johns.  236 
People  V.  Shea,  3  Parker,  563 

"4  Parker,  344:  22  N.  Y.  31', 


People  V. 

Sheriff  of  Westchester,  1  Parker,  659 

People  V. 

Shorter,  4  Barb.  460  ;  2  N.  Y.  193 

People  V. 

Shotwell,  27  Cal.  894          . 

People  V. 

Shuler,  28  Cal.  490         . 

Peojjle  Y. 

Simonds,  19  Cal.275 

People  V. 

Simpson,  50  Cal.  304 

People  V. 

Skeehan,  49  Barb.  217         . 

People  V. 

Slack,  15  Mich.  193       . 

People  V. 

Slayton,  1  Breese,  257 

People  V. 

Smith,  57  Barb.  46         .             .             . 

u 

"       1  Parker,  329 

li 

"       5  Parker,  490            .            . 

li 

"       24  Barb.  16         .             .             . 

n 

"       26  Cal.  665  . 

11 

"       31  Cal.  466          . 

u 

"       4  Parker,  255 

u 

"       15  Cal.  408         . 

(( 

"       23  Cal.  280  . 

(( 

"       5  Cow.  258          . 

(( 

"       1  Wheeler's  Crim.  Cas.  119 

People  V. 

Snitlin,  1  Wheeler's  Crira.  Cas.  512 

People  V. 

Snyder,  2  Parker,  23            .             .             . 

People  V. 

Spoouer,  1  Denio,  343    . 

People  V 

Stakem,  40  Cal.  599             .             .             . 

People  V. 

Staudish,  6  Parker,  111 

People  V 

Stanley,  47  Cal.  113 

People  V 

St.  Clair,  38  Cal.  137     . 

People  V. 

Stearns,  21  Wend.  409          . 

a 

"        23  Wend.  634  . 

People  V. 

Stein,  1  Parker,  202 

People  V 

Stetson,  4  Barb.  151       . 

People  V. 

Stewart,  4  Mich.  656             ..             . 

" 

"         28  Cal.  395       . 

a 

7  Cal.  140  .            .            .            . 

People  V 

Stockham,  1  Parker,  424 

People  V.  Stocking,  50  Barb.  573 
6  Parker,  263 
People  Y.  Stokes,  1  Wheeler's  Crim.  Cas.  Ill 
People  V.  Stone,  9  Wend.  182 
'•       16  Cal.  369    . 


Assault  and  battery,  48. 

Gaming,  238  ;  Nuisance,  475. 

Bail  and  recognizance,  68. 

Assault  and  battery,  52. 

Forgery  and  counterfeiting,  200. 

Forgery  and  counterfeiting,  201. 

Habeas  corpus,  252;  Stat.  582. 

Homicide,  275. 

Homicide,  311. 

Homicide,  321. 

Forg.  and  count.  210 ;  Sent.  560. 

Eob.  547 ;  Venue,  change  of,  634. 

EYidence,  136. 

Arson,  29. 

EYidence,  167  ;  Homicide,  263. 

Bigamy,  77. 

Bail  and  recognizance,  66. 

Bill  of  excep.  82 ;  Former  acquit. 

or  convic.  229;  Larceny,  415. 
Burglary,    90;     Indictment,    350; 

Larceny,  394,  403. 
False  pretenses,  177. 
Fore,  entry  and  det.  190,  191,  195. 
Homicide,  309. 
Insanity,  358. 
Larceny,  386. 
Larceny,  388,  397. 
Larceny,  413. 
Malicious  mischief,  429. 
Trial,  630. 

Assault  and  battery,  36. 
Burglary,  95. 
EYidence,  133. 

Receiving  stolen  property,  533. 
Voting,  643. 
Evidence,  158. 
Burglary,  90. 

Forgery  and  counterfeiting,  208. 
Writ  of  error,  662. 
Embezzle.  130,  123;  Indict.  336. 
False  pretenses,  173,  176,  184. 
Forgery  and  counterfeiting,  209. 
Homicide,  299. 
Trial,  598. 
Bill  of  exceptions,  81 ;  Indictment, 

349;  Trial,  591. 
Indictment,  332. 
Voting,  643. 
Animals,  18. 

False  pretenses,  173,  178. 
Larceny,  382,  413. 


TABLE   OF   CASES. 


745 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Stone,  8  Wend.  39  .  .  . 

People  V.  Stonecifer,  6  Cal.  405 
People  V.  Stout,  3  Parker,  670       . 

"       4  Parker,  71,  132       . 
People  V.  Stowell,  2  Deuio,  127    . 
People  V.  Strong,  46  Cal.  302  . 

"  "         9  Wend.  182     . 

People  V.  Stuart,  4  Cal.  218     . 
People  V.  Sturtevant,  33  Wend.  418 
People  V.  Sullivan,  3  Seld.  396 
Poople  V.  Sully,  5  Parker,  1 43       . 
People  V.  Sweetman,  3  Parker,  358     . 
People  V.  Symonds,  33  Cal.  348     . 
Peojjle  V.  Tannan,  4  Parker,  514 
People  V.  Taylor,  3  Denio,  91         . 

"  "        36  Cal.  255  . 

People  T.  Thacher,  6  Vroom  (35  N.  J.)  445 ;  1  Green' 

Crim.  Reps.  562 
People  V.  Thayer,  1  Parker,  595  , 
People  V.  TheaU,  50  Cal.  415  . 
People  v.  Thomas,  3  Hill,  169       . 

"        3  Parker,  256  ;  afR'd  3  N.  Y.  Ct 
of  App.  Decis.  571 
People  V.  Thompson,  28  Cal.  314  . 
"  "  50  Cal.  480 

"  34  Cal.  671  . 

"  "  4  Cal.  238 

41  K  Y.  1    . 
People  V.  Thoms,  3  Parker,  256  . 

People  V.  Thrall,  50  Cal.  415         . 
People  V.  Thurston,  2  Parker,  49 
People  V.  Tinder,  19  Cal.  539         . 

People  V.  Tomlinson,  35  Cal.  503 

People  V.  Tompkins,  1  Parker,  234     . 

People  V.  Torres,  38  Cal.  141  ... 

People  V.  Townsend,  3  Hill,  479  . 
People  V.  Toynbee,  30  Barb.  168 
People  V.  Travis,  4  Parker,  213     . 
People  V.  Trim,  39  Cal.  75       . 

'•  "      37  Cal.  274  .  . 

People  V.  Tryon,  4  Mich.  665 
People  V.  Tyler,  36  Cal.  523 

"       85  Cal.  553    .... 

"  "       7  Mich.  161;  8  lb.  330   . 

People  V.  Urias,  13  Cal.  335  .... 
People  V.  Valencia,  43  Cal.  552;  1  Green's  Cr.  R.  715. 
People  V,  Van  Blurcum,  3  Johns,  105 


New  trial,  440. 
Homicide,  383. 
Evidence,  150. 

Evi.  158 ;  Homi.  381 ;  Trial,  599. 
Bastardy,  76. 

Evidence,  153;  Larceny,  398. 
False  pretenses,  185. 
Sentence,  555. 
Lottery,  438. 
Homicide,  255,  313. 
False  pretenses,  178,  186,  183. 
Perjury,  499. 
Trial,  627. 
Homicide,  273,  309. 
Appeal,    19 ;    Lottery,   438 ;    Sen- 
tence, 555,  556. 
New  trial,  448. 

False  pretenses,  177. 
Homicide,  385  ;  Verdict,  637. 
Accessory,  10. 
False  pretenses,  174,  176. 

Forgery  and  counterfeiting,  330. 

Burglary,  91. 

Evidence,  159. 

Larceny,  383. 

Sentence,  559. 

Verdict,  639  ;  Writ  of  error,  664. 

Evidence,  141. 

Evidence,  149. 

Evidence,  163. 

Bail  and  recognizance,  60,  63 ; 
Indictment,  327. 

Forgery  and  counterfeiting,  199; 
Indictment,  339. 

False  pretenses,  178;  Habeas  cor- 
pus, 353,  253. 

Bill  of  exceptions,  81. 

Nuisance,  476,  481,  483,  485. 

Statutes,  578. 

Perjury,  500. 

Arson,  31. 

Trial,  626. 

Embezzlement,  121. 

Evidence,  154. 

Evidence,  169;  Rape,  521. 

Jurisdiction,  366. 

Assault  and  battery,  51. 

Homicide,  266. 

Arson,  24. 


74G 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


487. 
33  N. 


People  V.  Vance,  21  Cal.  400 
People  V.  Van  Home,  8  Barb.  158      . 
People  V.  Van  Keureu,  5  Parker,  66 
People  V.  Van  Nostrand,  9  Wend.  50 
"  "  9  Cow.  655 

People  V.  Van  Steenburgh,  1  Parker,  39 
People  V.  Vasquez,  49  Cal.  56.") 
People  V.  Vermilyea,  7  Cow.  108 

"  "         7  Cow.  369    . 

People  V.  Vernon,  35  Cal.  49  . 
People  V.  Vice,  21  Cal.  344 
People  V.  Videto,  1  Parker,  603 
People  V.  Walsh,  43  Cal.  447;  1  Green's  Cr.  E. 
People  V.  Walters,  5  Parker,  661 ;  6  lb.   15; 

Y.  147 

People  V.  Ward,  15  Wend.  231     . 
People  V.  Warner,  4  Barb.  314 

"  "        5  Wend.  271   . 

People  V.  Warren,  1  Parker,  338 
People  V.  Way,  10  Cal.  336 
People  V.  Webster,  3  Parker,  503 
People  V.  Weil,  40  Cal.  268 
People  V.  Wentz,  37  K  Y.  303 
People  V.  Weston,  4  Parker,  226 
People  V.  Wheatley,  6  Cow.  661 
People  V.  Wheelock,  3  Parker,  9  . 
People  T.  AVhipple,  9  Cow.  707 
People  V.  White,  55  Barb.  606     . 

"  "       14  Wend.  Ill    . 

"  "       22  Wend.   167 

»  "       24  Wend.  520  . 

People  V.  Whitney,  1  N.  Y.  Supm.  N.  S.  533 
People  V.  Wilber,  4  Parker,  19     . 
People  V.  Wiley,  3  Hill,  194    . 


People  V.  Williams,  4  Hill,  1 

"  "         3  Parker,  84 ;  1  N.  Y.  Ct.  of  App. 

Decis.  596      . 

"  "         43  Cal.  344 ;  1  Green's  Cr.  R.  412. 

"  "  18  Cal.  187    . 

"  '•'  24  Mich.  156      . 

"  "  35  Cal.  671     . 

"  "  24  Cal.  31             .             .             , 

"  "        17  Cal.  142     . 


Homicide,  268. 

Bail  and  recognizance,  59,  61. 

Forgery  and  counterfeiting,  198. 

Forcible  entry  and  defc.  192,  194. 

Indictment,  348 ;  Judgment,  363. 

Felony,  190. 

Homicide,  262. 

Bail  and  recognizance,  64  ;  Venue, 

change  of,  635. 
Contin.  Ill;  New  trial,  457,  458. 
Homicide,  297. 
Robbery,  547. 
Verdict,  637. 
Homicide,  314,  321. 

Indictment,  331,  352. 

Former  acquittal  or  conviction, 226. 

Lottery,  428. 

Perjury,  505. 

Former  acquittal  or  conviction, 226. 

Forgery  and  counterfeiting,  220. 

Commitment,  98. 

New  trial,  449;  Trial,  602. 

Evidence,  142. 

Jurisdiction,  365 ;  Oflicer,  491. 

Extortion,  171. 

Spirituous  liquors,  sale  of,  566,  573. 

Access.  11 :  Pardon,  494;  Wit.  649. 

Ass.&  batt.45 ;  For.acq.or  con. 223 ; 
Ind.338 ;  Riot,  54-3, 544 ;  Ver.641. 

Forg.  &  counterfeit.  220 ;  Trial,  607. 

Homicide,  209 ;  New  trial,  450. 

Homicide,  274;  New  trial,  450. 

Forcible  entry  and  detainer,  193. 

Indictment,  342. 

Larceny,  382,  399,  414;  New  trial, 
464 ;  Receiving  stolen  property, 
533,  534, 535,  537 ;  Verdict,  640. 

False  pretenses,  173,  174. 

Evidence,  133, 157  ;  Homicide,  279, 

281,  294,  295. 
Homicide,  256,  275 ;  Intoxication 

as  an  excuse  for  crime,  362. 
Homicide  288;  New  trial,  441. 
Larceny,  374,  385. 
Larceny,  387. 
New  trial,  452 ;  Venue,  change  of, 

634. 
Trial,  600,  610,  615. 


TABLE   OF   CASES. 


747 


Title  of  Case  and  Report. 


Subject  and  Page. 


People  V.  Williams,  19  Wend.  377 
People  V.  Willis,  5  Barb.  511  . 
People  V.  Wilson,  3  Parker,  199  . 

"  "        30  Micl).  48G 

People  agst.  Wiuchell,  7  Cow.  100 

"  "  7  Cow.  524 

People  V.  Winkler,  9  Cal.  234 
People  V.  Winters,  3  Parker,  10 

"  "         29  Cal.  658     . 

People  V.  Wood,  3  Parker,  681 
People  V.  Woodward,  45  Cal.  293 ;  2  Gr.  Cr.  R.  421 
People  V.  Woody,  45  Cal.  289 

"       47  Cal.  80 
People  V.  Wright,  45  Cal.  260 

"        9  Wend.  193   . 
People  V.  Yates  Gen.  Sess.  5  Wend.  110 
People  V.  Ybarra,  17  Cal.  106      . 
People  V.  Young,  31  Cal.  563 
People  V.  Yslas,  27  Cal.  630 
People  V.  Zeiger,  6  Parker,  355 
Perdue  v.  State,  2  Humph.  494    . 
Pereira,  Ex  parte,  6  Rich.  149 
Peri  V.  People,  65  111.  17  . 
Perkins  v.  Com.  7  Gratt.  651 
Perkins  v.  People,  27  Mich.  386 ;  2  Gr.  Cr.  R.  567 
Perkins  v.  State,  G  Ohio,  274       . 
Perkins  v.  Stevena,  24  Pick.  277 
Perry  v.  State,  43  Ala.  21  . 

"      10  Ga.  511       . 
Perry's  Case,  3  Gratt.  632  ..  . 

Peter  v.  State,  4  Sm.  &  Marsh.  31      . 
Peters  v.  State,  39  Ala.  681 
Peterson  v.  State,  47  Ga.  524 ;  1  Green's  Cr.  R.  576 

"  "       32  Texas,  477 

Peverelly  v.  People,  3  Parker,  59 
Pfomer  v.  People,  4  Parker,  558 
Phelps  V.  People,  13  N.  Y.  Supm.  X.  S.  401 "      . 
Phillips  V.  Com.  2  Duvall,  Ky.  328     . 
Phillips  V.  People,  57  Barb.  353  ;  42  N.  Y.  200  . 

"  "        55  111.  29  . 

Phillips  V.  State,  19  Texas,  158    . 

"      33  Ga.  281  . 
Phipps  V.  State,  3  Cold.  344 
Pierce  v.  State,  13  New  Ham  p.  556  . 
Pierson  v.  State,  12  Ala.  149 
Pigman  v.  State,  14  Ohio,  555 
Pike  V.  Com.  .2  Duvall,  Ky.  89     . 
Pike  V.  State,  35  Ala.  419 


Witness,  649. 

Bail  and  recognizance,  65. 

Homicide,  270,  271 ;  Jurisdiction^ 

366  ;  Trial,  597,  598. 
Larceny,  408. 
Bail  and  recognizance,  70. 
Sentence,  555. 
Larceny,  398. 
Assault  and  battery,  35. 
Burglary,  94. 
Evidi-nce,  158. 
Rape,  529,  530. 
Homicide,  201. 
Robbery,  548. 
Assault  and  battery,  56. 
Forg.  &  counterfeiting,  204,  210. 
Commitment,  98. 
Trial,  621. 
Perjury,  500. 

Assault  &  batteiy,  32,  52;  Ev.  169. 
Verdict,  637. 

Forgery  and  coun.  199,  209,  218. 
Appeal,  19. 
Homicide,  277. 

Forg.  &  counterfeiting,  204,  219. 
Forg.  and  counterfeiting,  197,  314. 
Indictment,  349. 
Pardon,  495. 
Homicide,  254. 
Larceny,  380. 
Witness,  648. 
Evidence,  141,  146,  147. 
Sentence,  554. 

Evidence,  149  ;  Witness,  647. 
Indictment,  331, 
Arson,  25. 
Trial,  621. 
Larceny,  375. 
Homicide,  317. 
Evidence,  136,  144  ;  Larceny,  405  ; 

Writ  of  error,  663. 
Former  accjuittal  or  convic.  224. 
Indictment,  341. 
New  trial,  457. 
Homicide,  302. 
Trial,  597. 
Homicide,  281,  303. 
Forgery  and  counterfeiting,  223. 
Theatrical  performance,  585. 
License,  426. 


748 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Pilkenton  v.  State,  19  Texas.  214        . 

Pirtle  T.  State,  9  Humph.  663       . 

Pitcber  v.  People,  16  Mich.  143  . 

Pitman  v.  State,  22  Ark.  354        . 

Pitts  V.  State,  48  Miss.  473     . 

Pittsburgh  v.  Young,  3  Watts,  363 

Plato  V.  People,  3  Parker,  586  ..  , 

Pleasant  v.  State,  2  Eng.  300        . 

"  "       8  Eng.  360  ... 

"  "       15  Ark.  624      . 

Poage  T.  State,  3  Ohio,  N.  S.  229       . 
Polk  y.  State,  19  Ind.  170  ... 

Pollard  v.  Com.  5  Rand;  659 
Pollard  V.  People,  69  111.  148        . 
Pollard  V.  State,  2  Clarke,  567  ..  . 

Pond  V.  People,  8  Mich.  150 
Poore  V.  Com.  3  Va.  Cas.  474 
Pope  V.  State,  33  Ark.  372  ..  . 

"  "35  Miss.  131     , 

Porter  v.  State,  5  Mo.  538  ... 

"       15  Ind.  433;  17  lb.  415 

"  "       1  Mart.  &  Yerg.  326 

"  "       2  Carter,  435  ... 

"5  Sneed,  358         . 
Portis  V.  State,  27  Ark.  360 ;  1  Green's  Cr.  Reps.  325. 

"  "       33  Miss.  578 

Potter  V.  Kingsbery,  4  Day,  98  .  .  . 

Potter  V.  State,  39  Texas,  388 
Pound  V.  State,  43  Ga.  88        . 

Powell  V.  Com.  11  Gratt.  823 
Powell  V.  State,  24  Ala.  31 

"  "      19  Ala.  577  ... 

"  "      37  Texas,  348     . 

"      48  Ala.  154 
Powell  V.  U.  S.  1  Morris,  17  .  .  . 

Powell's  Case,  8  Leigh,  719     . 
Powers  Y.  State,  9  Humph.  374    . 
Pratt  V.  Bogardus,  49  Barb.  89  .  .  . 

Pratt  V.  Price,  11  Wend.  137        . 
Preisker  v.  People,  47  111.  383  ..  . 

Presbury  v.  Com.  9  Dana,  203 

Preston  v.  State,  35  Miss.  383  ,  •  . 

Price  V.  Com.  31  Gratt.  846  . 

Price  V.  State,  18  Ohio,  N.  S.  418      . 
''      19  Ohio,  423 

"  "      36  Miss.  531     .... 

"      8  Gill,  395  ... 


Trial,  614. 

Homicide,  255,  275. 

Witness,  649. 

Homicide,  290. 

Evidence,  149;  Homicide,  286. 

Summary  conviction,  583. 

Statutes,  579. 

New  trial,  458. 

New  trial,  442 ;    Rape,  533,  53b ; 

Witness,  659. 
Rape,  531. 

Forg.  &  counterf.  303 ;  Trial,  628. 
Insanity,  357. 
Trial,  602. 
Perjury.  499. 
Rape,  527. 

Homicide,  317,  321,  322. 
New  trial,  444,  457. 
Evidence,  135. 
New  trial,  455. 
Adultery,  13. 

Forgery  and  counterfeiting,  217. 
Larceny,  379. 
New  trial,  453,  458,  459. 
Voting,  645. 
Gaming,  236. 
Grand  jury,  249. 
Bail  and  recognizance,  60. 
Larceny,  388. 
Evi.  135;    Homi.    299,  300;   New 

trial,  460;  Trial,  621. 
Forgery  and  counterf.  196,  204. 
Evidence,  164. 

Homicide,  390;  Witness,  6-37. 
New  trial,  459. 
Trial,  611. 
Trial,  592. 

Malicious  mischief,  430. 
Forgery  and  counterfeiting,  221. 
Officer,  487 ;  Warrant,  646. 
Perjury,  499. 
Rape,  531. 
New  trial,  456. 

Homicide,  305,  309;  Trial,  615. 
Larceny,  406. 
Evidence,  142. 
Former  acquittal  or  convict'n,  223; 

Indictment,  331. 
Homicide,  258 ;  Trial,  629. 
Trial,  593;  Venue,  change  of,  635. 


TABLE   OF   CASES. 


740 


Title  of  Case  and  Report. 


Subject  and  Page. 


Price's  Case,  8  Leigh,  757 
Pridgen  v.  State,  31  Texas,  420 
Prim  V.  State,  33  Texas,  157 
Prime,  Matter  of,  1  Barb.  310 
Prince  V.  State,  35  Ala.  867     . 

"30  Ga.  27 
Pritchett  v.  State,  22  Ala.  39 

"      2  Sneed,  285 
Puller  V.  People,  1  Doug.  48 
Pulling  V.  People,  8  Barb.  384 
Purkey  v.  State,  3  Heisk.  26 
Putnam  v.  Putnam,  8  Pick.  433 
Pyland  v.  State,  4  Sneed,  357 


Gaming,  245. 
Homicide,  309. 
Larceny,  373. 
Habeas  corpus,  249,  252. 
Eape,  528. 
Riot,  542. 

Homicide,  291,  298. 
Larceny,  379. 
Witness,  650. 
Certiorari,  98. 
Misdemeanor,  439. 
Bigamy,  77. 
Larceny,  379,  391. 


Q 


Quarles  v.  State,  5  Humph.  561    . 
Quesenberry  v.  State,  3  Stew.  &  Port.  308 
Quigley  v.  People,  2  Scam.  301     . 
Quimbo  Appo  v.  People,  20  N.  Y.  531 
Quinlan  v.  People,  6  Parker,  9 
Quinn  v.  State,  35  Ind.  485     . 


Gaming,  237. 

Trial,  598. 

Forgery  and  counterfeiting,  209. 

Jurisdiction,  367. 

Evidence,  156;  Larceny,  404. 

Voring,  643. 


E 


Radford  v.  State,  35  Texas,  15      , 
Rafferty  v.  People,  69  111.  Ill 

"         66  111.  118       . 
Rainey  v.  People,  3  Gilman,  71  .  .  . 

Rainforth  v.  People,  61  111.  365     . 
Rakes  v.  People,  2  Kansas,  157 
Ramo  V.  Wilson,  24  Vt.  517 
Ramsey  v.  State,  5  Sneed,  652 
Randal  v.  State,  4  Smed.  &  Marsh.  349    . 
Randle  v.  State,  42  Texas,  580 
Ranney  v.  People,  23  N.  Y.  413    . 
Ransom  v.  State,  22  Conn.  153 
Rapp  V.  Com.  14  B.  Monr.  614      . 
Raswick  v.  Com.  2  Va.  Cas.  356 
Ratzky  v.  People,  29  N.  Y.  124     . 

Rawlings  v.  State,  1  Md.  127  ... 

Rawls  V.  State,  8  Smed.  &  Marsh.  599    . 
Ravvson  v.  State,  19  Conn.  393 
Ray  V.  State,  1  Iowa  (Greene),  310 

Read  v.  Com.  32  Gratt.  924  ;  1  Green's  Cr.  Reps.  267. 


Larceny,  401. 

Homicide,  310. 

Intox.  as  an  excuse  for  crime,  36(7. 

Judgment,  363. 

Trial,  625. 

New  trial,  443,  448. 

Bastardy,  73. 

Voting,  645. 

Larceny,  379. 

Lottery,  426. 

False  pretenses,  175. 

Larceny,  379. 

Homicide,  276,  310,  317. 

Forgery  and  counterfeiting,  197. 

Former  accpiittal  or  convict'n,  228  - 

Sentence,  559. 
Venue,  change  of,  635. 
Abatement,  1. 

Spirituous  liquors,  sale  of,  568. 
Evidence,  159;  Larceny,414;  New 

trial,  457  ;  Witness,  649. 
Assault  tfc  battery,  53;   Homicide, 

273;    .Malicious   mischief,  433; 

Sunday,  584. 


rso 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Read  v.  State,  3  Carter,  438    . 

"  "        1  Smith,  369  . 

"  "        1  Carter,  511    . 

Eeading  v.  Com.  11  Penn.  St.  196 
Real,  Matter  of,  53  Barb.  186 
Real  V.  People,  55  Barb.  551 ;  aff 'd  43  N.  Y.  370 


Rector  v.  State,  1  Eng.  187     . 
Reddan  v.  State,  4  Greene,  137    . 
Reddill's  Case,  1  Whart.  445 
Redfield  v.  State,  34  Texas,  138    . 
Redman  v.  State,  38  Ind.  305 
Reed  v.  Com.  7  Bush,  Ky.  641      . 
Reed  v.  Elwell,  46  Maine,  370 
Reed  v.  People,  1  Parker,  481 
Reed  v.  State,  38  Ind.  396       . 
"       15  Ohio,  217 
"  "       16  Ark.  499       . 

"Reese  V.  State,  8  Ind.  416 
Reeves  v.  State,  30  Ala.  33      . 
Reid  V.  State,  30  Ga.  681 
Reins  v.  People,  30  III.  356     . 

Remsen  v.  People,  57  Barb.  334 
Renwick  v.  Morris,  7  Hill,  575     . 
Resp.  V.  Arnold,  3  Yeates,  417 
Resp.  V.  Bob,  4  Dall.  145 
Resp.  V.  Hammond,  1  Yeates,  71 
Resp.  V.  Hevice,  3  Yeates,  114     . 
Resp.  V.  Langcake,  1  Yeates,  415 
Resp.  V.  Malin,  1  Dall.  33 
Resp.  V.  McCarty,  3  Dall.  86 
Resp.  T.  Montgomery,  1  Yeates,  419 
Resp.  V.  Powell,  1  Dall.  47      . 
Resp.  V.  Roberts,  3  Dall.  134 
Resp.  V.  Ross,  3  Yeates,  1 
Resp.  V.  Steele,  3  Dall.  93 
Resp.  V.  Teischer,  1  Dall.  335 
Revel  V.  State,  36  Ga.  375      . 
Rex  V.  Humphrey,  1  Root,  63 
Reynolds'  Case,  3  Wallace,  jr.  145 
Reynolds  v.  Corp,  3  Caines,  269 
Reynolds,  Matter  of,  6  Parker,  273 
Reynolds  v.  Orvis,  7  Cow.  369 
Reynolds  v.  State,  3  Kelly,  53 

"  "     1  Kelly,  333 


Assault  and  battery,  54. 

Malicious  mischief,  431. 

Malicious  trespass,  435. 

Nuisance,  468,  471. 

Evidence,  131. 

Continuance,  113;  Evidence,  131, 
136,  164;  Homi.  373,391,292; 
Insanity,  358  ;  Intox.  as  an  ex- 
cuse for  crime,  362  ;  Juris.  367 ; 
Trial,  633 ;  Witness,  657. 

Former  acquittal  or  convict'n,327. 

Trial,  606. 

Sentence,  560. 

False  imprisonment,  173. 

Escape,  134;  Witness,  654. 

Larceny,  393. 

Forcible  entry  and  detainer,  193. 

Indictment,  339;  Nuisance,  479. 

Forgery  and  counterfeiting,  203. 

Forgery  and  counterf.  215,  231. 

Homicide,  366,  370,  273. 

Trial,  628. 

Indictment,  335. 

Conspiracy,  104. 

Homicide,  319;  New  trial,  453; 
Verdict,  642. 

Larceny,  403. 

Nuisance,  476. 

Nuisance,  477. 

Homicide,  264. 

Extortion,  171. 

Conspiracy,  108. 

Homicide,  296. 

Treason,  P88. 

Treason,  586,  588. 

Riot,  543. 

False  pretenses,  177. 

Adultery,  12. 

Forgery  and  counterfeiting,  213. 

Outlawry,  493. 

False  pret.  179  ;  Mai.  miscli.  439. 

Homicide,  383. 

Burglary,  89. 

Trial,  601. 

Arrest,  22. 

Habeas  corpus,  351,  253,  254. 

Arrest,  21. 

Former  acquittal  or  conviction, 
331;  Nolle  prosequi,  466. 

Homicide,  378,  304,  305,  814; 
Trial,  691. 


TABLE   OF   CASES. 


751 


Title  of  Case  and  Report. 


Subject  and  Page. 


Rhoads  v.  Com.  15  Penn.  St.  273 
Rhodihan  v.  People,  5  Parker,  395     . 
Rhodus  V.  Com.  2  Duvall,  Ky.  159 
Rice  V.  Com.  18  B.  Mon.  472  .  . 

Rice  V.  State,  16  Ind.  298 

"  "      47  Ala.  38  ;  1  Green's  Cr.  Reps.  708 

"  "      3  Kansas,  141  , 

"  "      7  Ind.  332 

"  "      8  Mo.  561      . 

"  "      3  Heisk.  215  ;  1  Green's  Cr.  Reps.  360 

"  "      8  Ohio,  111         . 

Richards  v.  Com.  13  Gratt.  803     . 
Richardson  v.  State,  37  Texas,  346      . 
Richels  v.  State,  1  Sneed ,  606       . 
Richmond  v.  State,  2  Greene,  532 
Riddle  v.  State,  49  Ala.  389  . 

Ridgeway  v.  State,  41  Texas,  231 
Riggs  V.  State,  3  Cold.  Tenn.  85 

"  "       30  Miss.  635     . 

Riley  v.  State,  32  Texas,  763         . 

"  "      16  Conn.  47      . 

"  "      9  Humph.  657 


Rippy  V.  State,  2  Head,  217     . 
Ritchey  v.  State,  7  Blackf.  168 
Ritter  V.  State,  33  Texas,  608 
Rivers,  Ex  parte,  40  Ala.  712 
Roach  V.  State,  5  Cold.  Tenn.  39 
Robbins  v.  State,  20  Ala.  36 
"      8  Ohio,  131 
Roberts'  Case,  10  Leigh,  686 

"  "     1  Dall.  39 

Roberts  v.  State,  2  Head,  501 

"  "      14  Ga.  8       . 


"  "      14  Mo.  138 

"  "      2  Overt.  423  .  .  . 

Robie  V.  McNiece,  7  Vt.  419 
Robin  V.  State,  40  Ala.  72       . 
Robinson  v.  Com.  16  B.  Mon.  609 

"  "      101  Mass.  27  .  .  . 

Robinson,  Ex  parte,  19  Wallace,  505  ;  2  Green's  Cr. 

Reps.  135         . 
Robinson  v.  State,  31  Texas,'170 

"  "       12  Mo.  593 

"  "       24  Texas,  152         . 

"  "       42  Ala.  509     . 

"  "       1  Cold.  Tenn.  120 

<'       1  Kelly,  503     . 

"  "       5  Ark.  G59 


Bail  and  recog.  71 ;  Fal.  pret.179. 

Larceny,  414. 

Larceny,  391. 

Attorney,  58. 

Assault  and  battery,  50. 

Evidence,  146,149. 

Gaming,  241. 

Homicide,  287. 

Homicide,  310. 

Receiving  stolen  property,  534. 

Larceny,  387. 

Larceny,  373. 

Adultery,  13. 

Assault  and  battery,  34. 

"Witness,  656. 

Assault  and  battery,  46. 

Larceny,  387,  391. 

Officer,  490. 

Homicide,  280. 

Embezzlement,  121,  123. 

Escape,  124;  Sentence,  560. 

Homicide,    257,    265,    277;    New 

trial,  442,  454. 
Homicide,  298,  315. 
Arson,  29. 

Malicious  mischief,  434. 
Venue,  change  of,  634. 
Receiving  stolen  }>roperty,  536. 
Assault  and  battery,  46. 
Homicide,  257. 
Gaming,  243. 
Treason,  586.  588. 
False  pretenses,  177. 
Former  acquit,   or  convict.  223 ; 

Trial,  C12 ;  Verdict,  640. 
Homicide,  310;    Indictment,  333; 

New  trial,  441,  459. 
Pardon,  494. 
Bastardy,  72. 

Judgment,  364;  Sentence,  555. 
Assault  and  battery,  57. 
Indictment,  345. 

Attorney,  58;  Contemjit,  110. 
Assault  and  battery,  50. 
Evidence,  140. 
Gaming,  237. 
Homicide,  304. 
Larceny,  374. 
Larceny,  401. 
New  trial,  441. 


752 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Robinson  v.  State,  3  Cold.  Tenn.  181 
Rockwell  V.  State,  12  Ohio,  K  S.  427 
Rodgers  v.  State,  26  Ala.  70  . 

Rogers  v.  State,  33  Ind.  543    . 
Rohan  v.  Sawin,  5  Cush.  281 
Rohe,  Ex  parte,  5  Ark.  104     . 
Romp  V.  State,  3  Greene,  376       . 
Root  V.  State,  10  Gill  &  Johns.  374    . 
Roquemore  v.  State,  19  Ala.  528    . 
Roscow  V.  Corson,  8  Taunt.  684 
Rose  V.  State,  33  Ind.  167 

"  "       Minor,  38  .  .  . 

"       30  Ohio,  31  .  .  . 

Rosekrans  v.  People,  5  N.  Y,  Snpm.  N.  S.  407 

Rosenbaum  v.  State,  33  Ala.  354 

Rosenzweig  v.  People,  6  Lans.  463 ;  63  Barb.  034 

Ross  V.  Com.  3  B.  Mon.  417     . 

Ross,  Ex  parte,  3  Bond,  353 

Boss  V.  Hunter,  4  Term  R.  33 

Ross  V.  lunis,  35  111.  487 

Ross  V.  People,  5  Hill,  294      . 

Ross  V.  State,  9  Mo.  687    . 

"  "      1  Blackf.  390    . 

Rothbauer  v.  State,  23  Wis.  468    . 
Rouse  V.  State,  4  Ga.  136 
Rowe  V.  State,  11  Humph.  491 

"  "      3  Bay,  565 

Rowell  V.  Small,  30  Maine,  29      . 
Royster,  Ex  2jarte,  1  Eng.  28 
Ruby  V.  State,  7  Mo.  206  ... 

Rulo  V.  State,  19  Ind.  398       . 
Ruloflf  V.  People,  5  Lans.  361        . 
•'        45  N.  Y.  313 
"  "        18  N.  Y.  179;  rev'g  3  Parker,  401 

Rump  V.  Com.  30  Penn.  St.  475 
Rumsey  v.  People,  19  N.  Y.  41      . 
Russell  V.  Com.  7  Serg.  &  Rawle,  489 
Russell  V.  State,  33  Ala.  366  . 

Rutherford  v.  Com.  3  Mete.  387 
Rutter,  Matter  of,  7  Abb.  N.  S.  67 
Ryan  v.  State,  45  Ga.  128   ■      . 


Officer,  489. 

Evidence,  138. 

Gaming,  240. 

Larceny,  413. 

Arrest,  21. 

Commitment,  98. 

Gaming,  241. 

Bastardy,  72,  73. 

Gaming,  340. 

Barratry,  71. 

Assault  and  battery,  47. 

Indictment,  351. 

New  trial,  461. 

Forgery  and  counterfeiting,  303; 
Indictment,  338. 

Assault  and  battery,  46 ;  Misde- 
meanor, 440 ;  Trial,  617,  623. 

Evidence,  166;  New  trial,  447. 

Misdemeanor,  437. 

Fugitives  from  justice,  234. 

Barratry,  71. 

Embezzlement,  120. 

Larceny,  378. 

Judgment,  363. 

Larceny,  399. 

Trial,  639. 

Forg.  and  counterf.  307,  311,  313. 

New  trial,  451,455. 

Pardon,  493. 

Larceny,  400. 

Habeas  corpus,  350. 

Venue,  change  of,  635. 

Trial,  611. 

Ev.  153;  Homicide,  375,  376. 

Ev.l57;  Homi.363,333;  Trial,  634. 

Homicide,  370. 

Perjury,  499. 

Assault  and  battery,  53. 

Sentence,  557. 

Indictment,  350;  Sentence,  559. 

Evidence,  143,  144. 

Fugitives  from  justice,  334. 

False  pretenses,  175. 


s 


SafEord  v.  People,  1  Parker,  474 


Bill  of  exceptions,  81 ;  Seduction, 
551,  552,  553;  Sentence,  555; 
Verdict,  637. 


TABLE   OF   CASES. 


753 


Title  of  Case  and  Report. 


Subject  and  Page. 


Salisbury  v.  State,  6  Conn.  101 
Sallie  T.  State,  39  Ala.  691 
Salomon  v.  State,  28  Ala.  83  . 
Sam  V.  State,  13  Smed.  &  Marsh.  189 
"  "        31  Miss.  480      . 

"        1  Swan,  61  . 
Sampson  v.  Com.  5  Watts  &  Serg.  385 
Samuels  v.  State,  3  Mo.  50  .  .  . 

Sanchez  v.  People,  4  Parker,  535 ;  32  N.  Y.  147       . 

Sanderlin  v.  State,  2  Humph.  315 

Sander's  Case.  5  Leigh,  751 

Sanders  v.  State,  18  Ark.  198  ... 

Sandford  v.  Nichols,  13  Mass.  286 

Sandford  v.  State,  6  Eng.  328  ... 

Sands  v.  Com.  2  Gratt.  87  .  .  . 

"  "     3  Gratt.  800      . 

Sarah  v.  State,  28  Ga.  576  ... 

"  "     28  Miss.  267     .  .  .  . 

Sartorius  v.  State,  24  Miss.  603    . 
Sasser  v.  State,  13  Ohio,  453   .  .  .  . 

Satterwhite  v.  State,  28  Ala.  65   . 
Sattler  V.  People,  59  111.  68 ;  2  Green's  Crim.  Reps.  550. 
Saunders  v.  Coffin,  16  Ala.  431  . 

Sawyer  v.  Joiner,  16  Vt.  497 
Sawyer  v.  State,  35  Ind.  80      . 
Sayres  v.  State,  30  Ala.  15 

Schaller  v.  State,  14  Mo.  502  .  .  . 

Schii-mer  v.  People,  33  111.  276      . 
Schmidt  v.  State,  14  Mo.  137  . 


Sehnier  v.  People,  23  111.  17   . 
Schooler  v.  Com.  Litt.  Sel.  Cas.  88 
Schusler  v.  State,  29  Ind.  394 
Scitz  V.  State,  23  Ala.  42 
Scott  V.  Com.  6  Serg.  &  Rawle,  224 

"  "      4  Mete.  Ky.  237       . 

Scott  V.  Ely,  4  Wend.  555       , 
Scott  V.  People,  62  Barb.  62 
Scott  V.  State,  30  Ala.  503      . 

"  "      48  Ala.  430 

Scott  V.  U.  S.  1  Morris,  142     . 
Scott's  Case,  1  Rob.  695    . 
Scraggs  V.  State,  8  Smed.  &  Marsh.  732 
Scully  V.  State,  39  Ala.  240 
Seabright  v.  State,  2  West.  Va.  591    . 
Seal  V.  State,  13  Smed.  &  Marsh.  28G 
Sealy  v.  State,  1  Kelly,  213     . 
Searls  v.  People,  13  111.  597 
Seibert  v.  State,  40  Alu.  60     . 
Sellers  v.  People,  1  Oilman,  183   . 
48 


Larceny,  389. 

Larceny,  383,  390. 

Lottery,  428. 

Indictment,  353;  Trial,  601. 

New  trial,  445. 

New  trial,  461. 

Accessory,  10;  Arson,  35. 

Jury,  370. 

Ev.  155 ;  Homi.  360,  267 ;  Insanity, 

358 ;  Trial,  601 ;  Witness,  658. 
Misdemeanor,  438. 
Gaming,  239. 
Nuisance,  486. 
Arrest,  22. 

Escape,  125  ;  Trial,  604. 
Conspiracy,  108. 

Forgery  and  counterfeiting,  197. 
Evidence,  147. 
Indictment,  340. 
Trial,  618  ;  Witness,  653,  654. 
Forgery  and  counterfeiting,  315. 
Bastardy,  75. 
Malicious  mischief,  430. 
Indictment,  328. 
Misdemeanor,  440. 
Homicide,  260. 
Larceny,  401,  411. 
Perjury,  513. 

Evidence,  131,  Trial,  005. 
Spirituous  liquors,   sale    ot,    568, 

576. 
Ev.  163;  Homi.  319;  Verdict,  638. 
Bastardy,  73. 
Homicide,  303. 
Assault  and  battery,  57. 
Assault  and  battery,  40. 
Insanity,   355. 
Bastardy,  74. 
False  pretenses,  175. 
Evidence,  137  ;  Larceny,  405. 
Rape,  533. 

Former  ac.  or  con.  230 ;  Riot,  543. 
Forgery  and  counterfeiting,  206. 
Homicide,  304. 

Forg.  and  counterfeit.  212,  223. 
Unwhol.  provisions,  sale  of,  632. 
New  trial,  456. 

Continuance,  112;  Witness,  657. 
LasciviousnesB,  417. 
Sprituous  liquors,  sale  of,  575. 
Homicide,  305. 


754 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Sellers  v.  People,  3  Scam.  412  ... 

Semme's  Case,  11  Leigh,  605 
Serjeant,  Case  of,  2  City  Hall  Rec.  44 
Severin  v.  People,  37  111.  414         . 
Shadle  v.  State,  34  Texas,  572  ..  . 

Shaffner  v.  Com.  72  Penn.  St.  GO ;  2  Green's  Cr.  R  504. 
Shafher  v.  State,  20  Ohio,  1  .  .  . 

Shanahan  y.  Com.  8  Bush,  463 ;  1  Green's  Cr.  R.  373. 
Sharkey  v.  People,  3  N.Y.  Supm.  N.  S.  739  ;  8  lb.  300. 
Sharp  V.  State,  19  Ohio,  379 

"  "       15  Ala.  749  . 

"  "16  Ohio,  N.  S.  218    . 

Sharpe  v.  State,  48  Ga.  16  .  .  . 

Shattuck  V.  People,  4  Scam.  477 
Shaw  V.  People,  5  K  Y.  Supm.  439 
Shaw  V.  State,  18  Ala.  547      .... 

Shay  V.  People,  22  N.  Y.  317 ;  4  Parker,  358 
Shearer  v.  State,  7  Blackf.  99  .  .  . 

Shell  V.  State,  6  Humph.  283        . 
Shelton  v.  State,  1  Stew.  &  Port.  208 
Shepherd  v.  People,  19  N.  Y.  537 
"  "        25N.  Y.  406 

Shepherd  v.  State,  42  Texas,  501 

Sheppard  v.  State,  42  Ala.  .531 

Sherban  v.  Com.  8  Watts,  212       . 

Sheriff  and  Jailer  of  New  York,  Matter  of,  1  Wheeler's 

Crim.  Cas.  303 
Sherman  v.  Com.  14  Gratt.  677 
Sherrod  v.  State,  25  Ala.  78 
Shifflet  V.  Com.  14  Gratt.  652 
Shirley  v.  State,  1  Oregon,  269     . 
Shirwin  v.  People,  69  111.  55 
Shoeffler  v.  State,  3  Wis.  823 
Shoemaker  v.  State,  12  Ohio,  43 
Shore  v.  State,  6  Mo.  640 
Short  V.  State,  4  Harring.  568 

"  "       7  Yerg.  513 

Shorter  v.  People,  2  Comst.  193 
Shouse  V.  Com.  5  Barr,  83 
Shover  v.  State,  5  Eng.  259     . 
Shriedlyv.  State,  23  Ohio,  N.  S.  130;  2Gr.Cr.R.  530. 

Shropshire  v.  State,  7  Eng.  190.  .  .  , 

Shnfflin  v.  People,  6  N.  Y.  Supm.  N.  S.  215 

Silver  v.  State,  17  Ohio,  365   . 

Silvus  T.  State,  22  Ohio,  N.  S.  90;  1  Green's  Cr.  R.  679. 

Simon  v.  State,  37  Miss.  288. 

Simons  V.  State,  7  Ohio,  116         .  .  . 

Simonton,  £ir  ^  irrf^f,  9  Porter,  390 


New  trial,  446. 

Bail  and  recognizance,  61,  66. 

Former  acquittal  or  convict.  223. 

Former  acquittal  or  convic.  230. 

Concealed  weapons,  101. 

Evidence,  157  ;  Homi.  274,  281. 

Bigamy,  77. 

Intox.  as  an  ex.  for  crime,  360,  361. 

Escape,  125. 

Ass.  and  bat.  53,  55  ;  Homi.  304. 

Bill  of  exceptions,  82 ;  Evid.  134. 

Evidence,  169. 

Rape,  529. 

Bail  and  recognizance,  63,  66,  68. 

Homicide,  289,  293  ;  Trial,  608. 

Assault  and  bat.  50 ;  Indict.  350 ; 

Verdict,  640. 
Homi.  266  ;  Indict,  346  ;  Wit.  653. 
Spirituous  liquors,  sale  of,  576. 
Malicious  mischief,  430. 
Indictment,  333. 
Arson,  24,  27,  29. 
Form,  acquittal  or  con.  228,  231 ; 

Statutes,  579. 
Burglary,  91. 
Larceny,  395. 
Indictment,  335. 

Attorney,  58. 

Escape,  125. 

Gaming,  240. 

Evidence,  142. 

Forgery  and  counterfeiting,  213. 

Rape,  526. 

Witness,  650,  651. 

Homicide,  256. 

Bail  and  recognizance,  61,  70. 

Bastardy,  75. 

Homicide,  271,  305,  321. 

Homicide,  315. 

Riot,  545. 

Sunday,  583,  584. 

Rec.   stolen  prop.   535,  537,  539; 

Witness,  657. 
Abatement,  1. 

Appeal,  19;  Homi.  282  ;  Wit.  655. 
Perjury,  500. 
Homicide,  301. 
Evidence,  147. 

Forgery  and  counterfeiting,  213. 
Bail  and  recognizance,  60. 


TABLE  OF  CASES. 


755 


Title  of  Case  and  Report. 


Subject  and  Page. 


Simpson  v.  Com.  1  Dana,  533 
Simpson  v.  State,  5  Yerg.  356 
"  "        4  HumiJh.  456 

"  "        10  Yerg.  525 

"  "        31  Ind.  90 

Sims'  Case,  7  Cusb.  385 
Skinner  v.  State,  30  Ala.  524 
Slatter  v.  People,  58  N.  Y.  354 
Slatterly  v.  State,  41  Texas,  619 
Slaughter  v.  State,  6  Humph.  410 
Sloan  V.  State,  8  Ind.  312 
Slomer  v.  People,  35  111.  70     . 
Smaltz  V.  Com.  3  Bush,  Ky.  32     . 
Smathers  v.  State,  46  Ind.  447 
Smcdly  v.  State,  30  Texas,  314      . 
Smith  V.  Com.  54  Penn.  St.  309 
"  "7  Gratt.  593 

"  "21  Gratt.  809 

"  "1  Duvall,  Ky.  234 

"  '-3  Va.  Cas.  6     . 

"       6  B.  Mon.  21 
"  "6  Gratt.  696    . 

Smith  V.  Hayden,  6  Cush.  Ill       . 
Smith  V.  People,  25  111.  17      . 
"  "       47N.  Y.  303       . 

"       47N.Y.  330 
"  "       53N.Y.  Ill       . 

"  "1  Parker,  317 

"1  Parker,  583      . 
Smith  V.  Schultz,  1  Scam,  490 
Smith  V.  State,  19  Conn.  493 

"  "       83  Maine,  48 

"       46  Ga.  298 
"       39  Ala.  554     . 

"  "       39  Miss.  521 

7  Humph.  43 

*'  "       33  Texas,  593       . 

"  53  Ga.  88 

"  "  38  Ga.  19 

"  "  1  Stewart,  506 

"  "  41  Texas,  353 

"  "  47  Ala.  540     . 

''  "  37  Ala.  472 

"  "  23  Ala.  54      . 

*'  "  33  Ala.  39 

"  "  9  Humph.  9 

"  "  49  Ga.  483 


Bail  and  recognizance,  64, 
Affray,  17. 
Larceny,  406. 
Nuisance,  473. 
Witness,  618. 
Habeas  corpus,  351,  253. 
Gaming,  340  ;  Indictment,  330. 
Assault  and  battery,  53. 
Mayhem,  437. 

Former  acquit,  or  conviction,  239. 
Nuisance,  469. 

Conspiracy,  103 ;  Officer,  489. 
Homicide,  317. 
Larceny,  407. 
Robbery,  547. 

Adultery,  13;  Misdemeanor,  438. 
Former  acquittal  or  convict'n,  229 ; 

Trial,  601. 
Homicide,  266,  270. 
Homi.  377  ;  Insan.  355 ;  Intox'n  as 

an  excuse  for  crime,  360,  361. 
New  trial,  446. 
Nuisance,  475. 
Trial,  603. 
Bastardy,  73,  73. 
Conspiracy,  102. 
False  pretenses,  182,  185,  186. 
Jurisdic'n,  365 ;  Statutes,  583,  583. 
Larceny,  377. 
Perjury,  510. 

Spirituous  liquors,  sale  of,  565. 
Larceny,  381. 
Abatement,  1 ;  Spirituous  liquors, 

sale  of,  568,  676. 
Abortion,  3. 
Accessory,  10. 
Adultery,  13. 
Assault  and  battery,  33, 
Assault  and  battery,  33. 
Assault  and   battery,   34 ;    Libel, 

421,  424. 
Assault  and  battery,  53. 
Bastardy,  73. 
Dueling,  117. 
Evidence,  136. 
Evidence,  151 ;  Rape,  523. 
Evidence,  160;  Gaming,  239. 
Gaming,  230. 
Gaming,  344. 
Homicide,  392.  397. 
Homicide,  354;  Verdict,  637. 


756 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Smith  V.  State,  1  Humph.  396 

"  "       8  Ohio,  294 

"  "       35  Texas,  738 

"  "       28  Ind.  321 

"  "       41  Texas,  168 

"  "       4  Greene,  189 

"       6  Gill,  425       . 
"       14  Mo.  147 

"  "       42  Texas,  444 

Smitherman  v.  State,  27  Ala.  23 
"  "40  Ala.  355 

Smith's  Case,  2  Wallace,  Jr.  150 
Snap  V.  People,  19  111.  80 
Snell  V.  State,  50  Ind.  516 

"  "       2  Humph.  347 

"  "       50  Ga.  219 

Snider's  Case,  2  Leigh.  744 
Snow,  Ex  parte^  1  R.  I.  360 
Snow  V.  State,  14  Wis.  479     . 
Snyder  v.  People,  26  Mich.  106 ;  1  Green's  Cr.  Reps 

547  ....  , 

Sohn  V.  State,  18  Ind.  389 
Solander  v.  People,  2  Col.  48 
Somers  v.  State,  5  Sneed,  438 
Son  V.  People,  12  Wend.  344 
South  worth  v.  State,  5  Conn.  825 


Spaight  V.  State,  29  Ala.32     .  .  .  . 

Spalding  v.  People,  7  Hill,  301    . 

Spann  v.  State,  47  Ga.  553 ;  1  Green's  Cr.  Reps.  391. 

Sparks  v.  Com.  3  Bush,  Ky.  Ill         . 

Speers  v.  Com.  17  Gratt.  570         . 

Speilman  v.  State,  27  Md.  520 

Spence  v.  State,  8  Blackf.  281       . 

Spencer  v.  State,  13  Ohio,  401 

"  "       17  Ala.  192 

Spencer's  Case,  2  Leigh,  751 
Sperry's  Case,  9  Leigh,  623 
Spiver  v.  State,  26  Ala.  90       . 
Spratt  V.  State,  8  Mo.  247  ... 

Springer  v.  State,  34  Ga.  379  ... 

"      19  Ind.  180        . 
Sprouce  v.  Com.  2  Va.  Cas.  375 

Squire  v.  State,  46  Ind.  459;  2  Green's  Cr.  Reps.  725. 
Stacey,  Matter  of,  10  Johijs.  327         . 
Stallings  v.  State,  33  Ala.  425       . 
Stalls  V.  State,  28  Ala.  25        . 
Stamper  v.  Com.  7  Bush,  Ky.  612 
Stanglein  v.  State,  17  Ohio,  N.  S.  453 
Stanley  t.  State,  24  Ohio,  N.  S.  166 

"  "       26  Ala.  26  ... 


Indictment,  326;  Trial,  591. 

Indictment,  350. 

Larceny,  378. 

Larceny,  402. 

Larceny,  409. 

New  trial,  443. 

Nuisance,  475. 

Riot,  542. 

Trial,  608. 

Adultery,  12. 

Adultery,  16. 

Trial,  601. 

Malicious  mischief,  429. 

Evidence,  165. 

Forgery  and  counterfeiting,  208. 

Larceny,  374. 

Indictment,  330. 

Bail  and  recognizance,  65. 

Forgery  and  counterfeiting,  207. 

Arson,  24. 
Trial,  592. 
Abortion,  6. 
Voting,  645. 
Sentence,  555. 

Assault  and  battery,  48 ;    Indict- 
ment, 346;  Information,  354. 
License,  426 ;  Trial,  618. 
Habeas  corpus,  253. 
Insanity,  355,  358. 
Homicide,  263. 
Burglary,  95, 
License,  426. 

Continu.  113;  Venue,  ch.  of,  686. 
Burglary,  90,  91. 
Evidence,  147. 

Forgery  and  counterf.  219,  220. 
Trial,  605. 
Trial,  624. 
Evidence,  158. 
New  trial,  450. 
Trial,  631. 
Trial,  595,  598. 
Bigamy,  78,  79,80,81. 
Habeas  corpus,  251. 
Spirituous  liquors,  sale  of,  576. 
Trial,  596,  597. 
Statutes,  583. 
Bigamy,  80. 
Larceny,  385. 
Spirituous  liquors,  sale  of,  576. 


TABLE  OF  CASES. 


757 


Title  of  Case  and  Report. 


Subject  and  Page. 


Stanton  v.  State,  8  Eng.  317 
Starin  v.  People,  45  N.  Y.  333 
Starkey  v.  People,  17  111.  17 
Starkie'8  Case,  7  Leigh,  753    . 
Starks  v.  People,  5  Denio,  106 
Starr  v.  Com.  7  Dana,  343 
State  V.  Abbey,  29  Vt.  60 


State  V. 


State  V. 
State  V. 
State  V. 

State  V. 

State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V, 
State  V. 

State  V. 

(( 

State  V. 
(( 

State  V. 
State  V. 


State  V. 

State  V. 
State  V. 
State  V. 

State  V. 


State  V. 
State  V. 

State  V. 
State  V. 
State  V. 


Abbot,  R.  M.  Charlt.  244 
"       16  New  Hamp.  507 
"      31  New  Hamp.  434 
"       30  Vt.  537       . 
Abram,  10  Ala.  938 
Absence,  4  Porter,  397 
Adams,  1  Brev.  379 

"        51  New  Hamp.  568 
Addington,  1  Bail.  310 
"  2  Bail.  516 

Aguilar,  14  Mo.  130 
Ah  Loi,  5  Nev.  99     . 
Ah  Sam,  7  Nev.  137 
Ah  Tong,  7  Nev.  148 
Aikens,  32  Iowa,  403 
Alley,  3  Heisk.  8 
Albertson,  3  Blackf.  351 
Alexander,  2  Dev.  470 

"  7  Rich.  5       . 

Alford,  68  N.  C.  322  . 

"        31  Conn.  40 
Allaire,  14  Ala.  435     . 
Allen,  4  Hawks,  356 
"       2  Humph.  258 
"      4  Blackf.  369 
"      1  Hawks,  6      . 
Allison,  Phil.  N.  C.  346  . 

"        3  Yerg.  438  . 
Alman,  64  N.  C.  364 
Alstead,  18  New  Hamp.  59 
Ames,  10  Mo.  743 

"      64  Maine,  386  . 
Anders,  8  Ired.  15  , 

"        4  Nev.  265    . 
"         3  Rich.  172 
"         3  Bail.  565    . 
"         1  Strobh.  455      . 
Andrew,  Phil.  N.  C.  305 
Andrews,  17  Maine,  103  . 

"  29  Conn.  100 

Angel,  7  Ired.  27 
Anthoine,  40  Maine,  435 
Anthony,  1  McCord,  385 


Homicide,  303. 

Accessory,  11  ;  Writ  of  error,  661. 

Homicide,  397. 

Larceny,  378. 

Witness,  658,  659. 

Bail  and  recognizance,  68. 

Bigamy,    80 ;       Indictment,    344 ; 

Statutes,  578. 
Bail  and  recognizance,  59,  63. 
Escape,  134. 
Indictment,  343,  344. 
Malicious  mischief,  431. 
Mayhem,  436. 

Indict.  343  ;  Mayhem,  436,  437. 
Bastardy,  74. 

Spirituous  liquors,  sale  of,  575. 
Larceny,  394. 
Sentence,  561. 
Arson,  36. 
Robbery,  546,  548. 
Burglary,  91. 
Trial,  610,  634. 
Perjury,  513. 
Mayhem,  436. 
Gaming,  236. 
Perjury,  510. 
Riot,  543. 

Assault  and  battery,  36. 
Assault  and  battery,  44. 
Gaming,  338. 
Affray,  18. 

Bail  and  recognizance,  69. 
Bastardy,  73. 

Forg  &  coun.  216;  New  trial,  447. 
Bastardy,  73. 
Riot,  544. 
Trial,  638. 
Nuisance,  483. 

Gaming,  344  ;  Indictment,  329. 
Witness,  653. 

Forcible  entry  and  detainer,  194. 
Homicide,  268. 
Indictment,  333. 
New  trial,  463;  Trial,  613. 
Verdict,  640. 
Evidence,  148. 
Indictment,  336. 
New  trial,  445,  451. 
Homicide,  370;  Indictment,  333.  - 
Nuisance,  486. 
Homicide,  361 ;  Indictment,  346. 


758 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V. 

State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

u 

State  V. 


State  V. 


State  V. 
State  V. 
State  T. 
State  V. 

State  V. 
State  V. 

State  V. 
State  V. 


State  V. 
State  V. 
State  v. 


AnthoriT,  7  Ired.  234 
"     '    10  Ired.  153 
Antonio,  3  Brev.  562      . 
Apel,  14  Texas,  481 
Appling,  25  Mo.  315 
Archer,  54  New  Hamp.  4Go  . 
Arden,  1  Bay,  437 
Armfield,  5  Ired.  207 
Armontrout,  21  Texas,  472 
Armstrong,  4  Minn.  335 

"  3  Ind.  139     . 

Arnold,  13  Ired.  184 

"         12  Iowa,  479       . 

"         39  Texas,  74 
Arthur,  1  McMuUan,  456 

"         23  Iowa,  430 

"        2  Dev.  217 

"         21  Iowa,  322 
Ashbury,  26  Texas,  82     . 
Ashley,  Dudley,  Ga.  188 
Atherton,  16  New  Hamp.  203 
Atkinson,  9  Humph.  677 
"  24  Vt.  448       . 

Atkyns,  1  Ala.  180    . 
Austin,  4  Humph,  213     . 

"         6  Wis.  205     . 
Avern,  2  Taylor,  237 
Avery,  7  Conn.  267   . 

"      44  New  Hamp.  392 

"      44  Vt.  629       . 

"       64  N.  C.  608 
A.  W.  1  Tyler,  260     . 
Aydelott,  7  Blackf.  157  . 
Ayer,  3  Foster,  301   . 


State  V.  Babcock,  1  Conn.  401 

"  "         1  Vroom  (30  N.  J.)  29 

State  V.  Bacon,  7  Vt.  222  . 

"  "      41  Vt.  526     . 

State  V.  Bailey,  10  Conn.  144 

"  "         31  New  Hamp.  321    . 

"  "        4  La.  An.  376       . 

"  "         73  N.  C.  70     . 

"  "         1  Foster,  343 

State  V.  Baker,  65  N.  C.  332    . 
.    "  "       50  Maine,  45 

"  "        1  Jones,  267  . 

*'  "        34  Maine,  52 

"  "       70  N.  C.  530  . 

State  V.  Baldwin,  1  Dev.  &  Batt.  195 
State  V.  Baldy,  17  Iowa,  39     . 


Robbery,  547. 
Trial,  630. 

Forgery  and  counterfeiting,  220. 
Estray,  126. 
Lasciviousness,  416. 
Ev.  164 ;  Rape,  531 ;  Wit.  657. 
Homicide,  269. 
Forcible  trespass,  195. 
Estray,  125. 

Adultery,  12  ;  Bigamy,  80. 
Gaming,  244. 

Evidence,  127;  Homicide,  302. 
Evidence,  151 ;  Trial,  598. 
Malicious  mischief,  430. 
Bail  and  recognizance,  61. 
Evidence,  152. 
Homicide,  278. 
New  trial,  462. 
Evidence,  129. 
Statutes,  581. 
Nuisance,  470,  477. 
Former  acquittal  or  convic.  227. 
Nuisance,  473. 
Gaming,  243. 
Bail  and  recognizance,  66. 
Trial,  629. 
Perjury,  513. 
Adultery,  12. 
Animals,  19. 
Demurrer,  115. 
Homicide,  260, 

Forgery  and  counterfeiting,  212. 
Malicious  trespass,  435. 
Burglary,  91 ;  Larceny,  394  ;  New- 
trial,  442,  448,  451. 
Jury,  369. 
Nuisance,  474. 
False  pretenses,   183. 
Witness,  655. 
Burglary,  89. 
Evidence,  128. 
Evidence,  160. 
Larceny,  415. 
Nuisance,  475. 
Assault  and  battery,  33. 
Bail  and  recognizance,  65,  66,  67. 
Homicide,  255,  264,  273. 
Indictment,  348. 
Larceny,  415. 
Nuisance,  468. 
New  trial,  456. 


TABLE   OF   CASES. 


759 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Balkom,  3  Pick.  281 
State  V.  Ballerio,  11  La.  An.  81    . 
State  V.  Bait,  7  Blackf.  9 
State  V.  Bangor,  38  Maine,  593     . 

"  "         30  Maine,  341 

State  V.  Baptiste,  36  La.  An.  134 
State  V.  Barefoot,  3  Rich.  309 
State  V.  Barfield,  8  Ired.  344 
State  V.  Barker,  18  Vt.  195      . 
State  V.  Barnes,  39  Maine,  561 

"  "         33  Maine,  580 

State  V.  Barr,  39  Conn.  40 
State  V.  Barrett,  43  New  Hamp.  466 
State  V.  Barron,  37  Vt.  57 

State  V.  Bartlett,  58  Maine,  446 
"  "55  Maine,  200     . 

"  "30  Maine,  133 

"  "39  Maine,  561     . 

"  "        43  New  Hamp.  334 

"  "47  Maine,  388    . 

State  V.  Barton,  19  Mo.  337 
State  V.  Batcheldor,  15  Mo.  307 

"  "  5  New  Hamp.  549 

State  V.  Bateman,  8  Ired.  474 
State  V.  Bates,  10  Conn.  373 

"  "33  Iowa,  96 

"  "10  Mo.  166 

State  V.  Battle,  7  Ala.  259 
State  V.  Bean,  19  Vt.  580 

"  "36  New  Hamp.  133 

State  V.  Beard,  1  Dutch.  384 
State  V.  Beasom,  40  New  Hamp.  367 
State  V.  Beatty,  Phil.  N.  C.  53 
State  V.  Beaver,  5  Harring.  508     . 
State  V.  Beck,  Dudley,  168      . 
State  V.  Beckwith,  1  Stew.  318     . 
State  V.  Beebe,  13  Kansas,  589 
State  V.  Beekman,  3  Dutch.  134 
State  V.  Behimer,  20  Ohio,  N.  S.  573 
State  V.  Belcher,  1  McMullan,  40 
State  V.  Belden,'83  Wis.  130;  3  Green's 
State  V.  Bell,  29  Iowa,  316 

"  "      Sired.  506 

"      65  N.  C.  318 
"5  Porter,  365      . 


State 

V. 

Benedict 

,  11  vt. 

386 

State 

V. 

Benham, 

7  Conn 

414 

i( 

IC 

33  Iowa,  154 

Cr.  R.  647 


Innkeeper,  355. 

Verdict,  638. 

Indictment,  353. 

Judgment,  363. 

Nuisance,  483. 

Pardon,  494. 

Bigamy,  77. 

Homicide,  355,  298. 

Indictment,  344. 

Indictment,  353,  858. 

Libel,  433,  433. 

Sunday,  588. 

Animals,  19  ;  Indictment,  349. 

Sp.  liquors,  sale  of,  568,  578,  577 ; 
Verdict,  637. 

Adultery,  13. 

Attorney,  58 ;  Burglary,  91 ;  Evi- 
dence, 128,  154;  Larceny,  393. 

Conspiracy,  101,  105. 

Indictment,  358. 

Insanity,  360. 

Search  warrant,  549;  Trial,  617. 

Evidence,  188. 

Indictment,  353. 

Trespass,  588. 

Forgery  and  counterfeiting,  213. 

Adultery,  14. 

Escape,  134. 

Gaming,  338. 

Trial,  639. 

Forgery  and  counterfeiting,  310. 

Indictment,  386 ;  New  trial,  448. 

Perjury,  507. 

Officer,  493. 

Receiving  stolen  property,  535. 

Assault  and  battery,  53. 

Assault  and  battery,  43. 

Ass.  and  bat.  39;  Judgment,  363. 

Escape,  184. 

Animals,  18. 

Former  acquittal  or  convict.  839. 

Peddlers,  496. 

Homicide,  304. 

Burglary,  87. 

Indictment,  330. 

Larceny,  882. 

Nuisance,  485. 

Assault  and  battery,  33. 

Forg.  and  coun.  198;  Former  ac- 
quittal or  conviction,  238. 

Homicide,  318,  330,  333. 


760 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  v. 
State  V. 


State  V. 
State  V. 
>State  V. 
State  V. 

a 

State  V. 
State  V. 
State  V. 
State  V, 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


State  V. 
State  V. 


State  V. 

State  V. 

State  V. 

State  V. 
It 

State  V. 
State  V. 
State  V. 
State  V. 
.State  V. 
State  V. 
.State  V. 
State  V. 
State  V. 
State  V. 
State  V, 
State  V. 
State  V. 

State  V. 

State  V. 
State  V. 


Benner,  64  Maine,  267 
Bennett,  31  Iowa,  34 
"         19La.  An.  395 
"        14  Iowa,  479       . 
"        3  Brev.  514;  2  Const.  R.  693 
"        4  Dev.  »&  Batt.  43 
Benthal,  5  Humph.  519 
Benton,  2  Dev.  &  Batt.  196 
Bergen,  1  Dutch.  309 
Berry,  4  Halst.  374  ..  . 

"       1  Bay,  316       .  . 

Berryman,  8  Nov.  263  ;  1  Green's  Cr.  R.  335 
Berthol.  6  Blackf.  474 
Bertin,  34  La.  An.  46        .  . 

Bertrand,  3  Oregon,  61 
Best,  7  Blackf.  611 
Biebusch,  32  Mo.  376 
Bierce,  27  Conn.  319 
Bill,  13  Ired.  373        . 
Birmingham,  Busbee,  120 
Birney,  35  Maine,  105 
Bishop,  8  Ired.  366 

"         7  Conn.  181    . 

"         1  Chip.  134 
Bitting,  13  Iowa,  600 
Black,  9  Ired.  378 

"       31  Texas,  560 

"       63  Maine,  310 
Blackafellow,  1  Halst.  333     . 
Blackwell,  9  Ala.  79 
Blair,  13  Rich.  93       . 
Blaisdell,  49  New  Hamp.  81 
"  33  New  Hamp.  388 

Blake,  39  Maine,  333 
Blakesley,  38  Conn.  533 
Blanch,  2  Vroom  (31  N.  .1.)  83     . 
Blankenship,  21  Mo.  504 
Blansky,  3  Minn.  346 
Blennerhassett,  Walker,  7 
Bloget,  1  Root,  534 
Bloom,  17  Wis.  531 
Blythe,  1  Bay,  166 
Bogue,  9  Ired.  360      . 
Boliug,  2  Humph.  414    . 
Bonnell,  46  Mo.  395 
Bonney,  34  Maine,  333    . 

"         39  New  Hamp.  306 
Boon,  13  Ired.  344. 

"       4  Jones,  463 
Bostick,  4  Harring.  563 
Bowe,  01  Maine,   171 ;  2  Green's  Cr.  R.  459. 


Witness,  654,  657. 

Adultery,  15. 

Forgery  and  counterfeiting,  199. 

Larceny,  385. 

Larceny,  406. 

Riot,  544  ;  Sentence,  559. 

Affray,  17. 

Trial,  595,   601. 

Contempt,  110. 

Assault  and  battery,  43. 

Riot,  544. 

Larceny,  384,  399. 

Nuisance,  475. 

Trial,  605. 

Homicide,  278. 

Habeas  corpus,  253. 

Subornation  of  perjury,  514. 

Indictment,  343;  Seduct.  550,551. 

Certiorari,  96. 

Former  acquittal  or  convict.  333. 

Evidence,  168. 

Gaming,  338. 

Indictment,  336. 

Perjury,  503,  513. 

Indictment,  339. 

Gaming,  337. 

Larceny,  393. 

Rape,  520;  Trial,  617;  Wit.  651. 

Bail  and  recognizance,  61. 

Assault  and  batt.  34;  Trial,  616. 

Riot,  543. 

Indictment,  351. 

Misdem.  438 ;  Pardon,  494,  495. 

Rape,  520,  529. 

Nuisance,  483. 

Larceny,   385. 

Indictment,  331. 

Witness,  656. 

New  trial,  458,  464  ;  Witness,  648. 

Forgery  and  counterfeiting,  214. 

Jurisdiction,  364. 

Assault  and  battery,  42. 

Trespass,  589. 

Lasciviousness,  417. 

False  pretenses,  180. 

Forg.&coun.  203,208;  Indict.  350. 

Spirituous  liquors,  sale  of,  573. 

Burglary,  86 ;  Rape,  533. 

False  pretenses,  184. 

Evidence,  140. 

Adultery,  14;  Evid.  149 ;  Trial,607. 


TABLE   OF  CxiSES. 


761 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Bowers,  17  Iowa,  46 
State  V.  Bowling,  10  Humph.  52 
State  V.  Bowman,  6  Vt.  594    . 
State  V.  Boyd,  2  Hill,  S.  C.  288     . 
State  V.  Boyden,  13  Ired.  505 
State  T.  Boyett,  10  Ired.  336 
State  V.  Boyington,  56  Maine,  512 
State  V.  Boyle,  28  Iowa,  522 
State  V.  Bradbury,  40  Maine,  154 
State  V.  Bradley,  34  Texas,  95     . 

"  "        1  Blackf.  83 

"  "        6  La.  An.  554    . 

"  "        9  Rich.  168 

State  V.  Brady,  14  Vt.  353 

"  '       Ga.  Decis.  pt.  2,  40 

State  V.  Brandon,  7  Kansas,  106 
State  V.  Brannon,  55  Mo.  63;  2  Green's  Cr.  Eeps.  608 

"  "        3  Nev.  238  .  .  . 

State  V.  Brantly,  63  N.  C.  518       . 
State  V.  Braunschweig,  38  Mo.  587  . 
State  V.  Braxton,  3  Ired.  354 
State  V.  Bray,  1  Mo.  180 

"  "      13  Ired.  289 

State  T.  Brazil,  1  Rice,  257     . 
State  V.  Breeden,  58  Mo.  507 
State  V.  Brette,  6  La.  An.  652 


State  V.  Brewster,  7  Vt.  118     . 
State  V.  Bridgen,  8  Ired.  84 
State  V.  Briggs,  3  Ired.  357     . 
"  "        34  Vt.  501 

"  "        1  Brev.  8 

"  "        9  R.  L  361 

State  V.  Briley.  8  Porter,  472 
State  V.  Brinyea,  5  Ala.  241 
State  V.  Brisbane,  2  Bay,  451 
State  V.  Britt,  3  Dev.  122 
State  V.  Britton,  4  McCord,  256 

"  "        2  Mason,  464 

State  V.  Brockman,  46  Mo.  566 
State  V.  Brooks,  9  Ala.  10 
"  "        4  Conn.  446 

"  •'        1  Hill.  S.  C.    361 

"  "        3  Humph.  70 

State  V,  Broughton,  7  Ind.  96 
State  V.  Brown,  5  Harring.  505 
"  "       4  R.  L  528 

"  "2  Oregon,  221 

"  "16  Conn.  54 

"  "       5  Eng.  78       . 

'*  "       31  Vt.  602     *       , 


Larceny,  405. 
Assault  and  battery,  57. 
Forgery  and  counterfeiting,  211. 
Indictment,  353. 
Assault  and  battery,  48. 
Voting,  644. 
Voting,  644. 
Verdict,  640. 
Nuisance,  470. 
Assault  and  battery,  32. 
Bastardy,  72, 76  ;  Bail  and  rec.  63. 
Homicide,  315 ;  Trial,  625. 
Witness,  652. 
Burglary,  91. 
Larceny,  384. 
Burglary,  95. 

Former  acquit,  or  conviction,  231. 
Larceny,  396. 
Evidence,  130. 
Evidence,  158. 
Indictment,  333. 
Assault  and  battery,  41. 
Bigamy,  78. 

Riot,  542,  543,  544,  545. 
Evidence,  169 ;  Trial,  623. 
Continuance,  114  ;  Former  acquit- 
tal or  conviction,  229. 
Larceny,  406,  408. 
Forcible  entry  and  detainer,  191. 
Assault  and  battery,  44. 
Forgery  and  counterfeiting,  204. 
Trial,  590. 
Witness,  656. 
Mayhem,  436. 
Sentence,  554. 
Indictment,  332. 
Forgery  and  counterfeiting,  219. 
Bigamy,  80. 

Forgery  and  counterfeiting,  211. 
Evidence,  146. 
Abatement,  2. 
Burglary,  89. 
Riot,  542. 
Trial,  628. 
Evidence,  132,  135. 
Arrest,  21. 

False  preten.184 ;  Forg.&  coun.221. 
Forgery  and  counterfeiting,  211. 
Form.  ac.  orcon.223 ;  Nuis.479,482. 
Grand  jury,  247. 
Indictment,  327. 


762 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Brown,  3  McLean,  233 

"  "       8  Humph.  89       .  ... 

"  "      25  Iowa,  561 

"  "       1  Dev.  137  .  .  . 

"  "8  Nov.  208  ;  1  Green's  Cr.  Reps.  843. 

"       27  Vt.  619     . 

"  "3  Murphey,  224  . 

"  "31  Maine,  520  ..  . 

"  "       67  K  C.  435        . 

State  V.  Brownlow,  7  Humph.  63       . 
State  V.  Bruce,  24  Maine,  (11  Shepl.)  71  . 


State  V.  Bruin,  34  Mo.  537  .  . 

State  V.  Bruington,  22  La.  An.  9         . 
State  V.  Bninson,  2  Bail.  149 
State  V.  Bryan,  74  N.  C.  351    . 
State  V.  Bryant,  65  N,  C.  327        . 

"  "        14  Mo.  340     . 

"        17  New  Hamp.  323 

"  "        55  Mo.  75       . 

•'        74  N.  C.  124       . 

"  "        21  Vt.  479     . 

State  V.  Buchanan,  17  Vt.  573      . 

"  "5  Har.  i&  J.  317,  500 

"  "1  Ired.  59       . 

State  V.  Buckman,  8  New  Hamp.  203 
State  V.  Buckner,  Phil.  N.  C,  558 
State  V.  Buflfum,  2  Post.  267  .... 

State  V.  Bugbee,  22  Vt.  32  .  .  . 

State  V.  Bullard,  16  New  Hamp.  139 
State  V.  Bullinger,  54  Mo.  142 ;  2  Green's  Cr.  Reps. 
601  .....  . 

State  V.  Bullock,  IS  Ala.  413 

State  V.  Bundy,  64  Maine,  507  ..  . 

State  V.  Bunger,  11  La.  An.  607    . 
State  V.  Bunker,  59  Maine,  366 
State  V.  Bunten,  2  Nott  &  McCord,  441 
State  V.  Burgdorf,  53  Mo.  65 ;   2  Green's  Cr.  Reps. 
593  .....  . 

State  V.  Burge,  7  Iowa,  255 
State  V.  Burgess,  24  Mo.  381    . 

"  "         74  N.  C.  272       . 

"  "        40  Maine,  592  . 

State  V.  Burgett,  1  Carter,  479 
State  V.  Burke,  30  Iowa,  331 

"  "       38  Maine,  574       . 

"  "       54  New  Hamp.  92  ;  2  Green's  Cr.  Reps. 

305  .... 


Indictment,  345,  348. 

Indictment,  349. 

Larceny,   376. 

Larceny,  388. 

Larceny,  396. 

Lasciviousness,  418. 

Misdemeanor,  438. 

Spirituous  liquors,  sale  of,  568. 

Trial,  620. 

Libel,  422. 

Evidence,  155 ;  Larceny,  386 ;  Nolle 
prosequi,  466;  Threatening  to 
accuse  of  crime,  585;  Witness, 
659. 

Larceny,  406. 

Jurisdiction,  368. 

Lasciviousness,  417,  420. 

Robbery,  548. 

Arrest,  20. 

Spirituous  liquors,  sale  of,  568. 

Forgery  and  counterfeiting,  203. 

Homicide,  298. 

Larceny,  378. 

New  trial,  461. 

Assault  and  battery,  36,  46. 

Conspiracy,  102,  107. 

Indictment,  353. 

Nuisance,  469. 

Trespass,  588, 589. 

Bail  and  recognizance,  66. 

Indictment,  336. 

New  trial,  456 ;  Trial,  626. 

Incest,  325. 

Intox.  as  an  excuse  for  crime,  360. 

Assault  and  battery,  39. 

Trial,  602. 

Nuisance,  470. 

Larceny,  414. 

Rape,  518. 
Evidence,  128. 
Indictment,  327. 
Larceny,  402. 
Malicious  mischief,  433. 
Gaming,  244, 
Homicide,  318. 

Indictment,  336,  340,  351 ;    Nolle 
prosequi,  466;  Verdict,  640. 

Indictment,  336. 


TABLE  OF   CASES. 


763 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V. 
State  V. 
State  V. 

State  V. 


State  V. 
State  V. 
State  V, 

u 

State  V. 

State  V. 

373 

State  V. 


Burke,  73  N.  C.  83 
Burlingham,  15  Maine,  104 
Burnham,  15  New  Hamp.  396    . 

"  9  New  Hamp.  34 

Burns,  8  Ala.  313 

"       33  Mo.  483     . 

"        8  Nev.  251  ..  . 

"       20  New  Hamp.  550     . 
Bumside,  37  Mo.  343       . 
Burrows  H  Ired.  477 
Burt,  25  Vt.  373  ... 

"     64N.C.  619      . 
Burton,  3  Ind.  93  .  .  . 

Bushing,  69  N.  C.  29 ;    1  Green's  Cr.  Reps 


Butler,  17  Vt.  145 
"  "1  Taylor,  262 

State  V.  Butman,  42  New  Hamp.  490 
1  Brev.  33    . 
"  "         15  La.  An.  166  . 

State  V.  Buych,  2  Bay,  563     . 
State  V.  Buzine,  4  Harring.  572    . 

State  V.  Calais,  48  Maine,  456 
State  V.  Calder,  2  McCord,  462     . 
State  V.  Call,  48  New  Hamp.  126 
State  V.  Callendine,  8  Iowa,  288  . 


Calvin,  R.M.  Charlt.  151       . 

"       2  Zabr.  207 
Cameron,  40  Vt.  555 

2Chand.  172 
Camp,  33  Vt.  551       . 
Campbell,  3  Vroom  (32  N.  J.)  309 

1  Rich.  124 
Candler,  3  Hawks,  393     . 
Canney,  19  New  Hamp.  135 
Canterbury,  28  New  Hamp.  195 
Capers,  6  La.  An.  267 
Cargill,  2  Brev.  445 
Carnahan,  17  Iowa,  256 
Caroline,  20  Ala.  19 
Carr,  37  Vt.  191         .  .      ■ 

"      25  La.  An.  407 

"      5  New  Hamp.  367 

"      13  Vt.  571  . 

"      1  Foster,  106  . 
Carrier,  5  Day,  131 
Carroll,  5  Ired.  139     . 

38  Conn. 449       . 
Carron,  18  Iowa,  372 


State  V. 

u 

State  V. 

state  V. 

State  V. 

(( 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V, 
State  V. 

State  V. 


Robbery,  547. 

Indictment,  353;  Witness,  651. 

Conspiracy,  101,  103,  105. 

Libel,  421,425. 

Assault  and  battery,  57. 

Homicide,  297. 

Indictment,  330. 

Spirituous  liquors,  sale  of,  570. 

Witness,  652. 

False  pretenses,  184. 

Assault  and  battery,  40,  45. 

Larceny,  384. 

Extortion,  171. 

Receiving  stolen  property,  534. 

Abatement,  2 ;  Accessory,  10. 

Forcible  entry  and  detainer,  193, 

Assault  and  bat.  57  ;  Officer,  492. 

Forgery  and  counterfeiting,  211. 

Libel,  425. 

Bail  and  recognizance,  63. 

Fugitives  from  justice,  234 ;  Ha- 
beas corpus,  250. 

Nuisance.  473. 

Riot,  543. 

False  pretenses,  182,  189. 

Forgery  and  counterfeiting,  203  ; 
Trial,  628. 

Forgery  and  counterfeiting,  218. 

Receiving  stolen  property,  533. 

Evidence,  154 ;  Larcenj",  397,  405. 

Homicide,  266. 

New  trial,  441,  447,  448,  454. 

Assault  and  battery,  37. 

Homicide,  288. 

Witness,  652. 

Indictment,  343. 

Nuisance,  474, 479. 

Indictment,  332. 

Forcible  entry  and  detainer,  191. 

Trial,  614. 

Slave-trade,  563. 

Evidence,  147. 

Evidence,  154. 

Forgery  &  counterf.  200,  205,  216. 

Larceny,  413. 

New  trial,  458. 

Burglary,  89. 

Certiorari,  97. 

Officer,  487. 

Seduction,  551. 


764 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Carter,  3  Dutch.  499 

"              "       39  Maine,  262 

, 

State  v.  Carver,  49  Maine,  588 

State  v.  Casados,  1  Nott  &  McCord,  91 

State  V.  Casey,  Busbee,  209 

"             "       45  Maine,  435 

State  T.  Cason,  20  La.  An.  48 

State  V.  Cass,  41  Texas,  552 

State  V,  Cassady,  12  Kansas,  550 

52  New  Hamp.  500 

State  V.  Cassell,  2  Har.  &  Gill,  407 

State  V.  Cassety,  1  Rich.  90    . 

State  V.  Caswell,  2  Humph.  399    . 

State  V.  Caverly,  51  Mo.  446 

State  V.  Cazeau,  8  La.  An.  109 

State  V.  Center,  35  Vt.  378     . 

State  V.  Centr.  R.  R.  Co.  60  Maine,  490 ; 

61  lb.  114. 

State  T.  Chamberlain,  30  Vt.  559 

State  V.  Chambers,  6  Ala.  855 

State  V.  Champ,  16  Mo.  385 

State  V.  Chancellor,  1  Strobh.  347      . 

State  V.  Chandler,  2  Harring.  553 

"                "          3  Hawks,  393 

"                "          5  La.  An.  489 

State  v.  Chapin,  17  Ark.  561 

State  V.  Chapman,  6  Nev.  320 

"                "         3  McLean,  390 

State  V.  Cheatwood,  2  Hill,  S.  C.  459      . 

State  V.  Cheek,  25  Ark.  206    . 

"             "        13Ired.  114 

State  T.  Cheeseman,  2  South.  445 

State  V.  Cherry,  11  Ired.  975 

"        Meigs,  232     . 

"1  Swan,  160 

State  V.  Chittem,  2  Dev.  49    . 

State  V.  Chitty,  1  Bail.  379 

State  V.  Chopin,  10  La.  An.  458 

State  V.  Chovin,  7  Iowa,  204 

State  V.  Christ,  32  Texas,  99  . 

State  V.  Church,  63  N.  C.  15 

State  V.  Clarissa,  11  Ala.  57. 

State  T.  Clark,  54  New  Hamp.  456 

18  Mo.  432      . 

"             "        3  Foster,  429 

"        8  Ired.  226       . 

"            "        12  Ired.  151 

2  Tyler,  282    . 

"        28  New  Hamp.  176 

"44  Vt.  636       . 

3  Ired.  451 

"             "        37  Vt.  471       . 

Jurisdiction,  365. 

Search  warrant,  549. 

Abatement,  2  ;  Judgment,  363. 

Larceny,  382 ;  Witness,  648. 

Former  acquittal  or  convict'n,227. 

Indictment,  344. 

Larceny,  391. 

Assault  and  battery,  40. 

Access'y,  9;  Larc.  406;  Trial,  592. 

Indictment,  344;  Officer,  491. 

Larceny,  414. 

Spirituous  liquors,  sale  of,  569. 

Spirituous  liquors,  sale  of,  569. 

Indictment,  333. 

Witness,  657. 

Evidence,  150;  Homi.  295,  311. 

Indictment,  342. 

Peijury,  501,  508.  513. 

Larceny,  380. 

Witness,  649. 

Sentence,  556. 

Blasphemy,  83. 

Forgery  and  counterfeiting,  216. 

Homicide,  315. 

Accessory,  8. 

Accessory,  9. 

Perjury,  507. 

Homicide,  255,  257. 

Indictment,  349. 

Misdemeanor,  438. 

Habeas  corpus,  249. 

Assault  and  battery,  33. 

Bail  and  recognizance,  66,  67. 

Rape,  521. 

Accessory,  11. 

Barretry,  71,  72. 

Homicide,  317. 

Assault  and  battery,  37. 

Estray,  126. 

Assault  and  battery,  34. 

Grand  jury,  248. 

Evidence,  133. 

Indictment,  328. 

Indictment,  348. 

Larceny,  388,  399. 

New  trial,  449. 

Perjury,  512. 

Spirituous  liquors,  sale  of,  567. 

Spir.  liq.  sale  of,  569 ;  Officer,  487, 

Spirituous  liquors,  sale  of,  570. 

Trial,  624. 


I 


TABLE   OF  CASES. 


765 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Clarke,  2  Brev.  386 

"  "        33  New  Hamp.  339 


State  V 

Clarkson,  3  Ala.  378 

State  V 

Cleaveland,  6  Nev.  181 

(1 

3  R.  I.  117  . 

t( 

58  Maine,  564     .  ' 

State  V. 

Cleaves,  59  Maine,  298    . 

State  V 

Clements,  1  Speer,  48 

State  V. 

Clough,  49  Maine,  573     . 

State  V. 

Coatney,  8  Yerg.  210 

State  V. 

Cockerhaui,  2  Ired.  204  . 

State  V. 

Cockfield,  15  Rich.  316 

State  V. 

Coffey,  41  Texas,  46 

State  V. 

Cofren,  48  Maine,  364 

State  V 

Coggswell,  3  Blackf.  54 

State  V. 

Colin,  9  Nev.  179       . 

State  V. 

Cohoon,  12  Ired.  178        . 

State  V. 

Cole,  19  Wis.  129      . 

# 

(I 

"    48  Mo.  70     . 

t< 

"     9  Humph.  626    . 

(1 

"     2  McCord,  117 

State  V. 

Collins,  20  Iowa,  85  . 

11 

"        8  Ired.  407 

(1 

"        33  Iowa,  36  • 

u 

48  Maine,  217      . 

state  V. 

Colman,  5  Porter,  32 

State  V. 

Colter,  6  R.  I.  195 

State  V. 

Colvin,  11  Humph.  599 

State  V. 

Colwell,  3  R.  I.  132 

State  V, 

Comings,  28  Vt.  508 

State  V. 

a 

Commissioners,  2  Murphy,  371  . 
"                Riley,  273    . 

(1 

"                3  Hill,  S.  C.  149 

State  V. 

Condry,  5  Jones,  418 

State  V. 

Cone,  2  Mass.  133 

State  V. 

Conley,  39  Maine,  78 

State 

u 

State 
State 


State 
State 
State 


V.  Connell,  49  Mo.  282 

"  38  New  Hamp.  81 

V.  Conner,  3  McLean,  573    . 

"        5  Blackf.  325 
V.  Connolly,  3  Oregon,  69   . 
"  3  Rich.  337 

"  63  Maine,  212 

V.  Connor,  2  Bay,  34 
V.  Conway,  18  Mo.  321 
V.  Cook,  38  Vt.  437 

23  La.  An.  347       . 
"       20  La.  An.  145 
1  Mo.  547 


Bastardy,  74. 

Lottery,  426. 

Indictment,  348. 

Forgery  and  counterfeiting,  215. 

Statutes,  580. 

Verdict,  638. 

Evidence,  154;  Trial,  615. 

Bastardy,  74. 

Indictment,  327. 

Bastardy,  75. 

Sentence,  560. 

Larceny,  400. 

Assault  and  battery,  40. 

Indictment,  333. 

Indictment,  337. 

Arson,  30 ;  Witness,  650. 

Voting,  643. 

Assault  and  battery,  47 ;  Forgery 

and  counterfeiting,  215. 
Former  acquittal  or  convic.  228. 
Jury,  370. 
Riot,  542. 
Evidence,  166. 
Homicide,  283,  304. 
Homicide,  317. 
Indictment,  345. 

Accessory,  9 ;  Indictment,  340,  353. 
Burglary,  91. 

Former  acquittal  or  convic.  327. 
Witness,  655. 

Spirituous  liquors,  sale  of,  568. 
Former  acquittal  or  convic.  228. 
New  trial,  465. 
Nuisance,  482 ;  Trial,  606. 
Evidence,  150. 
Indictment,  346. 
Indictment,  339;    Homicide,  355, 

267  ;  Trial,  591,  614,  629. 
Sentence,  557. 

Spirituous  liquors,  sale  of,  573. 
Perjury,  499. 
Grand  jury,  247. 
Homicide,  278,  319,  323. 
Riot,  543. 

Spirituous  liquors,  sale  of,  569. 
Bail  and  recognizance,  63. 
Larceny,  379. 

Enlistment,  133  ;  Indictment,  333. 
Evidence,  135. 
Evidence,  159. 
Indictment,  335. 


76G 


TABLE  OF   CASES. 


1 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Coombs,  33  Maine,  529 

"  "  55  Maine,  477   . 

State  V.  Coon,  18  Minn.  518    . 

"  "14  Minn.  456 

State  V.  Cooper,  3  Zabr.  52    . 
"  "  16  Vt.  551 

"  "  5  Conn.  260 

"  1  Green,  361 

16  Mo.  551    . 
State  V.  Coover,  49  Mo.  433 
State  V.  Copp,  15  New  Hamp.  212 
State  V.  Coppenburg,  2  Strobh.  373 


State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

State  V, 
State  V, 
State  V. 
State  V, 
State  V. 
State  V. 


'^ 


Corbett,  1  Jones,  264 
Corson,  59  Maine,  137 
Corwin,  4  Mo.  609      . 
Cotton,  4  Foster,  143 
Council,  1  Overt.  305 
Covington,  70  N.  C.  71 
Cowan,  7  Ired.  239 
Cowell,  4  Ired.  231 
Cux,  2  Tayl.  165 

"    6  Ired.  44     . 

"    32  Mo.  566 
Coy,  2  Aiken,  181 
Crane,  4  Wis.  401 
Crank,  2  Bail.  66 
Craton,6  Ired.  164 
Crawford,  11  Kans.  32;  3  Green's  Cr.  R.  638. 

'•  34  Iowa,  40  .  .  . 

Creasman,  10  Ired.  395    . 
Creight,  1  Brev.  169   . 
Creighton,  1  Nott  &  McCord,  256 
Crocker,  3  Barring.  559 
Crosby,  4  La.  An.  434      . 
Cross,  2  Humph.  301 

"       27  Mo.  333  ..  . 


"  "       12  Iowa,  66      ... 

"  "       34  Maine,  595         .  .      '       . 

State  V.  Croteau,  23  Vt.  14     . 

State  V.  Crow,  1  Ired.  375  ... 

State  V.  Crowell,  30  Me.  115    . 

State  V.  Crowley,  13  Ala.  172         . 

State  V.  Crowner,  56  Mo.  147;  2  Green's  Cr.  Reps.  616 

State  V.  Cruikshank,  6  Blackf.  62 

State  V.  Cruise,  19  Iowa,  312  .... 

"  "         74  N.  C.  491  . 

"  "         16  Mo.  391      . 


Former  acquittal  or  convic.  230. 
Larceny,  383. 
Larceny,  398,  415. 
Officer,  491. 
Abortion,  3. 

Adultery,  13;  Burglary,  88. 
Forgery  and  counterfeiting,  203. 
Former  acquittal  or  convic.  229. 
Spirituous  liquors,  sale  of,  573. 
Jurisdiction,  364. 
Indictment,  337,  349. 
Indictment,  331 ;  Receiving  stolen 

property,  534, 535. 
Indictment,  348. 
Perjury,  506. 
Indictment,  336. 
Indictment,  334. 
Malicious  mischief,  429. 
Trespass,  589. 

Evi.  146,  149 ;  Robbery,  547,  548. 
Adultery,  16. 
Adultery,  13. 
Indictment,  327,  331. 
Indictment,  344. 
Assault  and  battery,  57. 
Assault  and  battery,  51. 
Accessory,  11;  Indictment,  349. 
Trial,  593. 
Insanity,  357. 
Seduction,  550. 
Trial,  595. 
Indictment,  330. 

Assault  and  battery,  47;  Riot,  545. 
Burglary,  95. 
Larceny,  397. 
Gaming,  243. 
Intoxication  as  an  excuse  for  crime, 

360;  Trial,  605. 
Rape,  530. 
Sentence,  559. 
Spirituous  liquors,    sale   of,   574; 

Verdict,  637. 
Assault  and  battery,  34. 
Spirituous   liquors,   sale  of,    570, 

576. 
Adultery,  16. 
Adultery,  12. 
Perjury,  497,  507. 
Evidence,  139. 
Evidence,  147. 
New  trial,  441. 


TABLE   OF  CASES. 


767 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V. 
State  V. 

State  V. 
State  V. 
State  V. 
State  V. 


State  V. 
State  V. 
State  V. 
State  v. 
State  V. 
State  V. 
State  V. 


Cucuel,  31  N.  J.  249 
Cummings,  33  Conn.  260 
3  La.  An.  330 
Cunningham,  72  N.  C.  469 
Curran,  18  Mo.  320 
Currier,  23  Maine,  43 
Curtis,  1  Hayw.  471 

"        2  Dev.  &  Batt.  222 

"        12  Ired.  270 

"        6  Ired.  247      . 

"        71  N.  C.  56;  2  Green 
Custer,  65  N.  C.  339 
Daley,  29  Conn.  273 
Dalton,  11  Ired.  379 
Dame,  11  New  Hamp.  271 
Damery,  48  Maine,  327 
Damon,  2  Tyler,  387 
Dark,  8  Blackf.  526    . 


s  Cr.  Reps.  748 


State  V.  Dart,  29  Conn,  153 
State  V.  Daubsrt,  42  Mo.  239,  242 
State  V.  Daugherty,  80  Texas,  360 
State  V.  Davidson,  30  Vt.  377 
"  "  12Vt.  800 

State  T.  Davis,  1  Ired.  125 
*'  "        63  N.  C.  578 

"  "       4  Blackf.  345. 

"2  Ired.  153 

"  "3  McCord,  187 

69N.  C.  383 
State  V.  Dawson,  6  Ohio,  251 
State  V.  Day,  37  Maine,  244 
State  V.  Dayton,  3  Zabr.  49     . 

State  V.  Deal,  64  K  C.  270     . 
State  V.  Dean,  13  Ired.  63 
State  V.  Dearborn,  54  Maine,  442 
State  V.  Debury,  5  Ired.  371 
State  V.  Decklotts,  19  Iowa,  447 
State  V.  De  Hart,  2  Halst.  172      . 
State  V.  Delano,  54  Maine,  442 
State  V.  Delue,  1  Chand.  166 
State  V.  Delyon,  1  Bay,  353     . 
State  V.  Deming,  4  McLean,  3 
State  V.  Dennin,  32  Vt.  158    . 
State  V.  Denton,  14  Ark,  343 
State  V.  Derrick,  1  McMullan,  338 
State  V.  Desmond,  5  La.  An.  398 
State  V.  Devereux,  41  Texas,  383 
State  V.  Devlin,  25  Mo.  174 


New  trial,  455. 

Larceny,  379. 

Homicide,  265. 

Insanity,  358. 

Assault  and  battery,  43. 

Gaming,  237, 

Arrest,  21. 

Forcible  entry  and  detainer,  194. 

Perjury,  513. 

Sentence,  554. 

Verdict,  641. 

Vagrant,  633. 

Statutes,  580,  581. 

Forgery  and  counterfeiting,  211. 

Assault  and  battery,  53. 

Evidence,  131;  Trial,  607. 

Former  acquittal  or  convic.  229. 

Forgery  and  counterfeiting,  209; 
Writ  of  error,  661. 

Homicide,  289, 

Conspiracy,  108,  109  ;  Evi.  158. 

Indictment,  346. 

Evidence,  135  ;  Robbery,  549. 

Indictment,  336. 

Assault  and  battery,  32. 

Evidence,  148. 

Former  acquittal  or  convic.  223. 

Grand  jury,  246 ;  Malicious  mis- 
chief, 433,  434. 

Larceny,  415. 

Perjury,  509. 

Bail  and  recognizance,  59. 

Spirituous  liquors,  sale  of,  570. 

Indict.  337,  347,  351,  353,  353; 
Perjury,  500,  508,  509. 

Larceny,  377 ;  Trespass,  588. 

Conspiracy,  109. 

Assault  and  battery,  40. 

Indictment,  336. 

Evidence,  156. 

New  trial,  443. 

Spirituous  liquors,  sale  of,  566. 

Indictment,  346. 

False  i^retenses,  173. 

Perjury,  503. 

Arson,  33,  30. 

Indictment,  388. 

Bastardy,  74. 

Former  acquit,  or  convic.  229. 

False  pretenses,  184. 

Trial,  613. 


768 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Dew,  1  Taylor,  143     . 

State  V.  Dewitt,  2  Hill,  S.  C.  282  . 

State  V.  De  Wolf,  8  Conn.  93  . 

State  V.  Dibble,  4  Jones,  107 

State  V.  Dickerson,  34  Mo.  365 

State  V.  Dill,  1  Scam.  257 

State  V.  Dillihunty,  18  Miss.  331 

State  V.  Dineen,  10  Minn.  407 

State  V.  DivoU,  44  New  Hamp.  140    . 

State  V.  Dobson,  3  Harring.  563    . 

State  V.  Dodd,  3  Murphy,  226 

State  V.  Dodson,  4  Oregon,  64 

State  V.  Dole,  3  Blackf.  294    . 

State  V.  Donaldson,  3  Vroom  (32  N.  J  )  151 

State  V.  Donnegan,  34  Mo.  67 

State  V.  Donnell,  32  Vt.  491 

State  V.  Doon,  R.  M.  Charlt.  1 

State  V.  Dooris,  40  Conn.  145 ;  2  Green's  Cr. 

State  V.  Dorr,  33  Maine  (3  Red.)  498  . 

"  "      10  Ired.  469 

State  V.  Dorsett,  21  Texas,  656 
State  V.  Doty,  3  Vroom  (32  N.  J.)  403       . 

«  "       5  Cold.  Tenn.  33 

State  V.  Dougherty,  55  Mo.  69 ;  2  Green's  Cr 
State  V.  Douglass,  7  Iowa,  413 
State  V.  Dourdon,  3  Dev.  443 
State  V.  Dove,  10  Ired.  469      . 
State  V.  Dover,  9  New  Hamp.  468 

"  "        46  New  Hamp.  452    . 

State  V.  Dow,  21  Vt.  484   . 
State  V.  Dowd,  19  Conn.  383  . 
State  V.  Dowe,  27  Iowa,  373 
State  V.  Dowell,  3  Gill  &  Johns.  310  . 
State  V.  Dowers,  45  New  Hamp.  543 
State  V.  Downing,  74  N.  C.  184 
State  V.  Dozier,  Dudley,  Ga.  155    . 
State  V.  Drake,  30  Maine,  366 
State  V.  Drawdy,  14  Rich.  87 
State  V.  Dresser,  54  Maine,  569 
State  V.  Dubois,  49  Mo.  573 
State  V.  Duckworth,  3  Dutch.  338 
State  V.  Dudley,  7  Wis.  664 
State  V.  Duesloe,  1  Bay,  377   . 
State  V.  Dufify,  6  Nev.  138 
State  V.  Duncan,  7  Yerg.  371 

"  "         6  Ired.  336 

"  "        1  McCord,  404 

State  V.  Dunkley,  3  Ired.  116        . 
State  V.  Dunlap,  34  Maine,  77 


Bail  and  recognizance,  63. 

Conspiracy,  103 ;  Larceny,  412. 
.      Evid.  134,  162,  170;  Rape,  531. 

Nuisance,  486. 
.      Officer,  492. 

Writ  of  error,  662. 
.      Homicide,  270. 

Evidence,  129. 

Perjury,  504. 

Larceny,  403. 

Perjury,  507. 

Homicide,  291. 

Gaming,  242. 

Conspiracy,  103. 
.      Larceny,  397,  399. 

New  trial,  450. 

Nuisance,  475. 
R.  493.       Bigamy,  80. 

False  pretenses,  176,  184. 

Trial,  603. 

Escape,  125. 

Contempt,  110. 

Religious  meet,  disturb,  of,  540. 
R.  610.      New  trial,  453. 

Voting,  644. 

Forgery  and  counterfeiting,  203. 
.      Evidence,  169,  170. 

Information,  353. 

Nolle  prosequi,  467. 

Spirituous  liquors,  sale  of,  568. 

Homicide,  304. 

False  pretenses,  183. 

Larceny,  388. 

Lasciviousness,  418. 
.      Affray,  17. 

False  pretenses,  186. 

Warrant,  647. 

Larceny,  412 ;  Verdict,  637. 

Demurrer,  115;  Evidence,  127. 

Burglary,  94. 

False  pretenses,  186. 

Adultery,  14,  15. 

New  trial,  445. 

Trial,  630,  631. 
Abatement,  1. 

Accessory,  11;   Continuance,  113; 

Homicide,  387. 
Nuisance,  471. 
Homicide,  254. 
False  pretenses,  180. 


TABLE   OF   CASES. 


769 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Dunham,  9  Ala.  70... 

State  V.  Dunn,  18  Mo.  41<J       . 

"       26  Ark.  34             .             .             . 

"              "       1  Dutch.  214    . 

State  V  Dupont,  2  McCord,  334        .         . 

State  V.  Durham,  72  N.  C.  447 

State  V.  Durst,  7  Texas,  74             .             .             . 

State  V.  Duvall,  26  Wis.  415  . 

, 

State  V.  Dyer,  59  Maine,  137         . 

"            "      41  Texas,  520    . 

State  V.  Early,  3  Barring.  562 

State  V.  Earp,  41  Texas,  487    . 

State  Y.  Eaton,  3  Barring.  554 

State  V.  Edney,  4  Dev.  &  Batt.  378     . 

State  V.  Edson,  10  La.  An.  229      . 

State  V.  Edwards,  4  Humph.  226 

State  V.  Egan,  10  La.  An.  698       . 

State  V.  Elder,  41  Maine,  165  . 

"             "       54  Maine,  381          . 

State  V.  Ellington,  7  Ired.  61  . 

State  V.  Elliott,  11  New  Hamp.  540 

"              "         7  Blackf.  280 

State  V.  Ellis,  4  Vroom,  1 02           . 

"             "3  Conn.  185       . 

"             "      8  Blackf.  225           ..             . 

State  V.  Emeigh,  18  Iowa,  123 

State  V.  Emerson,  53  N.  H.  619;  2  Green's  Cr.  R. 

362 

"                 "         16  New  Hamp.  87  . 

State  V.  Emery,  Brayt.  131             ..             . 

State  V.  Emmott,  23  Wis.  632  . 

State  V.  England,  8  Jones.,  399      . 

State  V.  Engle,  1  Zabr.  347      . 

State  V.  Enloe,  4  Dev.  &  Batt.  373 

State  V.  Ephraim,  2  Dev.  &  Batt.  163 

State  V.  Epperson,  27  Mo.  255 

State  V.  Epps,  4  Sneed,  552     . 

State  V.  Errickson,  3  Vroom  (32  N.  J.)  431 

State  V.  Eskridge,  1  Swan,  413 

State  V.  Este.s,  46  Maine,  150 

State  V.  Eubanks,  41  Texas,  291 

State  V.  Evans,  15  Rich.  31           .             .             . 

"            "         5  Ired.  603     . 

State  v.  Everett,  Dudley,  S.  C.  295 

State  V.  Evers,  49  Mo.  542 

State  V.  Fairclough,  39  Conn.  47 

State  V.  Fairfield,  37  Me.  517 

State  V.  Fann,  65  N.  C.  317 

State  V.  Farley,  8  Blackf.  239 

State  V.  Farmer,  4  Ired.  334 

State  V.  Farrall,  29  Conn.  72 

State  V.  Farrar,  41  New  Hamp.  53 

49 

Nolle  prosequi,  467. 

Homi.  256,  309;  Trial,  614,  619. 

Lasciviousness,  418. 

Officer,  492. 

Dueling,  116,  117. 

Verdict,  640. 

Indictment,  347. 

Homicide,  368. 

Abortion,  6. 

False  pretenses,  180. 

Witness,  653. 

Indictment,  336. 

Burglary,  91 ;  Evidence,  134,  149. 

Bail  and  recognizance,  67. 

Embezzlement,  131, 

Bail  and  recognizance,  70. 

Indictment,  334. 

Former  acquittal  or  convic.  338. 

Jurisdiction,  368. 

Trial,  601. 

Assault  and  battery,  38. 

Assault  and  battery,  41. 

Bribery,  85. 

Larceny,  385. 

Perjury,  501. 

Rape,  531. 

Arson,  36. 

Spirituous  liquors,  sale  of,  567. 

Larceny,  389. 

Indictment,  330. 

Larceny,  379. 

New  trial,  447. 

Conspiracy,  106. 

Trial,  611. 

Assault  and  battery,  33. 

Assault  and  battery,  47. 

Escape,  13 1. 

Spirituous  liquors,  sale  of,  569. 

False  pretenses,  183. 

Assault  and  battery,  39. 

Larceny,  389. 

Lasciviousness,  416. 

Warrant,  646. 

False  pretenses,  173,  175. 

Larceny,  374. 

Spirituous  liquors,  sale  of,  573. 

Larceny,  373. 

Pardon,  495. 

Rape,  531. 

Breach  of  the  peace,  84. 

Abduction,  2. 


770 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

State  V. 
State  V. 
State  V. 


State  V. 
State  V. 
State  V, 
State  V, 
State  V. 
State  V, 


State  V, 


Farrier,  I  Hawks,  487 
Farrow,  10  Rich.  165 
Fasset,  16  Conn.  457 
Faucett,  4  Dev.  &  Batt.  107 
Fearson,  2  Md.  310    . 
Feaster,  25  Mo.  324 
Fee,  19  Wis.  562 
Fellows,  2  Hayw.  520      . 
Felter,  25  Iowa,  67     . 

"       32  Iowa,  49 
Fenley,  18  Mo.  445    . 
Fenn,  41  Conn.  590 
Ferguson,  9  Nev.  106 

2  McMullan,  502 
"  33  New  Hamp.  424 

Fidment,  85  Iowa,  541 ;  2  Green's  Cr, 
Fielding,  32  Maine,  585  . 
Fields,  Peck,  140      . 
Fifield,  18  New  Hamp.  34 
Fish,  3  Dutch.  323     . 
Fisher,  6  Jones,  478 

"       70  N.  C.  78     . 

"       2  Nott  &  McCord,  261 
Flanders,  38  New  Hamp.  324 


R.  632, 


State  V.  Fleetwood,  16  Mo.  372   . 
State  V.  Fleming,  7  Humph.  152 
State  V.  Fletcher,  35  Texas,  740  . 

"  "         5  New  Hamp.  257 

State  V.  Florez,  5  La.  An.  429 
State  V.  Flower,  Walker,  318 
State  V.  Floyd,  6  Jones,  392 
State  V.  Flye,  26  Maine,  312. 


State  V. 

Flynn,  36  New  Hamp.  64 

State  V. 

Foley,  45  New  Hamp.  466     . 

State  V. 

Folke,  2  La.  An.  744       . 

State  V. 

Follet,  6  New  Hamp.  53 

State  V. 

Foot,  2  Mills,  123             ..             . 

State  V. 

Ford,  3  Strobh.  517,  note 

a 

2  Root,  93               .             .             . 

State  V. 

Fore,  1  Ired.  378         . 

State  V 

Forney,  24  La.  An.  191 

State  V 

Forno,  14  La.  An.  450 

State  V. 

Foster,  37  Iowa,  404         . 

u 

"       33  Iowa,  525 

(( 

"       3  Fost.  348            ..             . 

state  V 

Fowler,  28  New  Hamp.  181 

State  V 

Fox,  1  Dutch.  566            ..             . 

(( 

"     2  Halst.  244        . 

u 

"     Ga.Decis  pt.  1,  35 

Dueling,  117. 

Perjury,  504. 

Grand  jury,  248;  Indictment,  348, 

Spirituous  liquors,  sale  of,  571. 

Gaming,  237. 

Indictment,  346. 

Assault  and  battery,  50. 

Forcible  entry  and  detainer,  194, 

Evidence,  161,  162  ;  Insanity,  356. 

Insanity,  357. 

Forgery  &  counterfeiting,  201,  207. 

Larceny,  374,  388. 

Homicide,  319. 

Larceny,  379. 

Spirituous  liquors,  sale  of,  566. 

Arson,  28;  Ev.  148;  Indict.   339. 

Indictment,  832. 

Indictment,  329. 

Officer,  490,  492. 

Arson,  29. 

Evidence,  147. 

Larceny,  413. 

New  trial,  444,  463. 

Bill  of  exceptions,   83;  Ev.    163; 

Forgery  and  counterfeiting,  200. 
Indictment,  843. 
Nolle  prosequi,  466. 
Estray,  126. 
Indictment,  326. 
Verdict,  642. 
Trial,  594. 
Homicide,  298,  307. 
Forg.  and  counterf.  205,  214,  222; 

Indictment,  340. 
Evidence,  143. 

New  trial,  449 ;  Nuisance,  482,  485, 
Indictment,  333 ;  Trial,  605. 
Lottery,  428. 

Bail  and  recognizance,  66. 
Evidence,  151 ;  New  trial,  447. 
Forgery  and  counterfeiting,  214. 
Lasciviousness,  418. 
Homicide,  268. 
Bail  and  recognizance,  65. 
Embezzlement,  119. 
Former  acquittal  or  convict.  230. 
Spir.  liquors,  sale  of,  576 ;  Wit.  655. 
Bail  and  recognizance,  67. 
Evid.  170  ;  Homic.  271  ;  Trial,  598. 
Indictment,  327. 
New  trial,  454. 


TABLE  OF   CASES. 


771 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Foye,  53  Mo.  336 
State  V.  Franklin  Falls  Co.  49  New  Hamp.  240 
State  V.  Frazer,  2  Bay,  96        . 
State  V.  Fredericks,  16  Mo.  382 
State  V.  Freeman,  12  Ind.  100 
6  Blackf.  248 
"  15  Vt.  722 

"  "         8  Iowa,  428 

"  37  Vt.  520 

"  "  5  Conn. 348 

State  V.  Frisby,  19  La.  An.  143 
State  V.  Fritz,  23  La.  An.  55 
State  V.  Froiseth,  16  Minn.  296 
State  V.  Fuentes,  5  La.  An.  427 
State  V.  Fulford,  Phil.  N.  C.  563 
State  V.  Fuller,  33  New  Hamp.  259 

"  "      34  Conn.  280 

"  "1  McCord,  178      . 

"  "      39  Vt.  74 

"  "1  Bay,  245 

Furlong,  19  Maine,  225 
"        26  Maine,  69      . 

Fyles,  1  Const.  234    . 

GaflFery,  12  La.  An.  265    . 

Gaffney,  Rice,  431      . 

Gager,  26  Conn.  607;  28  lb.  232 

Gailor,  71  N.  0.  88     . 

Gallimon,  2  Ired.  372 

Gardiner,  1  Ired.  27 

Garity,  46  New  Hamp.  61 

Garland,  25  La.  An.  532 

Gamer,  8  Porter,  447 

Garrett,  11  N.  C.  85 ;  2  Green's  Cr.  Reps 
"         Busbee,  357 

Garrigues,  1  Hayw.  276 

Garthwaite,  3  Zabr.  143  . 

Garvey,  11  Minn.  154 


State  V. 

a 

State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

State  V. 
State  V. 
State  V. 

State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


(51. 


Gary,  36  New  Hamp.  359 
Gaskins,  65  N.  C.  320 
Gasting,  23  La.  An.  609 
Gates,  17  New  Hamp.  373 
Gay,  10  Mo.  440 
Gazell,  30  Mo.  92 
Gentry,  2  Jones,  406 
George,  15  La.  An.  145 
Gerkin,  1  Ired.  121 
German,  54  Mo.  526 
Gherkin,  7  Ired.  206 
Gibbons,  1  South.  40 


Evidence,  168. 

Nuisance,  474. 

Continuance,  113. 

Spirituous  liquors,  sale  of,  567. 

Evidence,  144. 

Grand  jury,  247;  Iniict.  337,  345. 

Indictment,  348. 

Officer,  491. 

Spirit,  liquors,  sale  of,  572,  574. 

Verdict,  642. 

New  trial,  452. 

Forgery  and  counterfeiting,  217. 

Indictment,  327. 

Assault  and  battery,  55. 

Larceny,  390. 

Indictment,  344. 

New  trial,  444;  Spirituous  liquors, 

sale  of,  568. 
Pardon,  494. 
Trial,  602. 
Verdict,  639. 
Larceny,  401. 
Perjury,  503. 
Continuance,  113. 
Larceny,  393. 
Homicide,  303. 

Religious  meeting,  disturb,  of,  540. 
Arson,  28. 
Perjury,  503. 

Forgery  and  counterfeiting,  304, 
Nuisance,  481. 
Contempt,  110. 
Malicious  mischief,  433. 
Evidence,  140. 
Trial,  613. 

Former  acquittal  or  convict.  334. 
Trial,  593. 
Evidence,  164 ;  Intoxication  as  an 

excuse  for  crime,  361. 
Indictment,  339,  340. 
Sentence,  558. 
Larceny,  391. 
Perjury,  497,  509,  513. 
Sentence,  556. 
Larceny,  373. 
Trial,  613. 
Evidence,  143. 
Mayhem,  430. 
Homicide,  370. 

Forgery  and  counterfeiting,  199. 
Certiorari,  97. 


772 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  T. 

Gibson,  10  Irod.  214 
"       *  29  Iowa,  295 

State  V. 

Gilbert,  36  Vt.  145 

2  Bay,  355    . 
"         13  Vt.  647 

State  T. 

Gillick,  7  Iowa,  287  . 

State  T. 

Gillis,  4  Dev.  600 

State  V. 

Gilman,  51  Maine,  206 

State  V. 

Givens,  5  Ala.  747 

State  V. 

Glasgow,  Dudley,  S.  C.  40      . 

State  V. 

Glaze,  9  Ala.  283  . 

State  V 

Godet,  7  Ired.  210      . 

State  V. 

Godfrey,  24  Maine,  232    . 

12  Maine,  361 
"-       Bray  t.  170 

state  V. 

Godsey,  13  Ired.  348 

State  V. 

Godwin,  5  Ired.  401 

State  V. 

GoflF,  20  Ark.  289 

State  V. 

Gooch,  7  Blackf.  468 

State  V. 

Goode,  1  Hawks,  463 

State  V. 

Goodman,  6  Rich.  387      . 

State  V 

Goodrich,  19  Vt.  116 

(1 

46  New  Hamp.  186     . 

State  T. 

Goold,  53  Maine,  279 

a 

' '      62  Maine,  509 ;  2  Green's  Cr 

.Reps. 

State  V. 

Gordon,  1  R.  I.  179    . 

State  V. 

Gorbam,  53  New  Hamp.  152 

State  V.  Gorman,  2  Nott  &  McCord,  90 
State  V.  Goulding,  44  New  Hamp.  284     . 
State  V.  Gove,  34  New  Hamp,  510 
State  V.  Grady,  34  Conn.  118        . 

State  V.  Graham,  13  Kansas,  299 

"  "  74  N.  C.  646      . 

"  "  46  Mo.  490 

"  "  3  Sneed,  134      . 

"  "  15  Rich.  310 

"  "  1  Ark.  428 

State  V.  Grand  Trunk  R.  R.  58  Maine,  176 

"  "  "      60  Maine,  145 

State  V.  Grant,  23  Maine,  171 
State  V.  Graves,  72  N.  C.  483 

"  "        Busbee,  402 

"  "        74  N.  C.  396 

State  V.  Gray,  21  Mo.  492 

"  "      8  Blackf.  274 

"  "37  Mo.  463 

"  "      8  Jones,  179 

State  V.  Green,  7  Wis.  676 

"  "5  Rich.  N.  S.  65 


Assault  and  battery,  39. 
.      Trial,  625. 

Evidence,  149. 

Forcible  entry  and  detainer,  192. 

Indictment,  334. 

Grand  jury,  246;  Homicide,  277. 

Evidence,  152. 

Homicide,  285. 

Forg.  and  counterf.  198,  200,  217. 

Fomier  acquittal  or  convict.  223. 

Incest,  325. 
.      Larceny,  392,  399,  402. 

Indictment,  344. 

Nuisance,  474,  477. 

Trial,  602. 

Forcible  entry  and  detainer,  194. 

New  trial,  462, 
.      Sunday,  584, 

Lasciviousness,  418, 

Accessory,  10. 

Libel,  422,  423. 
.      Aflfray,  18. 

Larceny,  394,  395. 

Assault  and  battery,  37. 
482.     Libel,  425. 

Homicide,  287 ;  New  trial,  448. 

Ass.  and  batt.  33 ;  Larceny,  393 ; 
Robbery,  545. 

Larceny,  374. 

Lasciviousness,  417. 
.      Indictment,  341,  343,  345. 

Conspiracy,  109;  Jurisdict.  865; 
Statutes,  580,  581. 

Embezzlement,  121  ;  Trial,  622. 

Larceny,  404. 

Malicious  mischief,  433, 

Nuis.  468;  Profane  swear.  517, 

Nuisance,  481. 

Writ  of  error,  662. 

Assault  and  battery,  38. 

Indictment,  342. 

Evidence,  141  ;  Larceny,  402. 

Larceny,  406. 

Perjury,  506,  511. 

Trespass,  590. 

Assault  and  battery,  40. 

Bastardy,  72. 

Larceny,  406. 

Rape,  519. 

False  pretenses,  184. 

False  pretenses,  187;  Trial,  620. 


TABLE  OF   CASES. 


773 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V,  Green,  35  Conn.  203 
"  "7  Ired.  39 

"  10  Iowa,  239 
State  V.  Greenlee,  1  D'ev.  523 
State  V.  Greenwood,  5  Porter,  474 

State  V.  Gregory,  5  .Jones,  315 

"  "         3  Murphy,  09    . 

State  V.  Griffin,  18  Vt.  198 
State  V.  Griffiths,  3  Ired.  504 
State  V.  Grigsljy,  3  Yerg.  280 
State  V.  GroflF,  1  Murph.  270 
State  V.  Grooms,  5  Strobh.  158 
State  V.  G.  S.  1  Tyler,  295 
State  V.  Guild,  5  Halst.  163 
State  V.  Gupton,  8  Ired.  271 
State  V.  Gurney,  37  Maine,  149 
State  V.  Gut,  13  Minn.  341 

'state  V.  Guyer,  6  Iowa,  263 
State  V.  Hadley,  54  New  Hamp.  224 
State  V.  Hagan,  54  Mo.  192 
State  V.  Hailstock,  2  Blackf.  257 
State  V.  Haines,  30  Maine,  65 
State  V.  Hall,  4  Halst.  256 

"  "      9  Nev.  58 

"  "      49  Maine,  412 

"  "      5  Harring.  492 

"  "      3  Vroom  (32N.  J.)  158 

"21  Maine,  84 

'♦  "      7  Blackf.  25 

State  V.  Ham,  54  Maine,  194 
State  V.  Hamer,  2  Carter,  371 
State  V.  Hamilton,  55  Mo.  520      . 

"  "  32  Iowa,  573 

"7  Mo.  300 
State  V.  Hammond,  5  Strobh.  91 
State  V.  Hampton,  63  N.  C.  13 
State  V.  Handy,  20  Maine,  81 
State  V.  Hanson,  23  Texas,  233      . 

"39  Maine,  337 
State  V.  Hardin,  1  Kansas,  474     . 
State  V.  Hardwick,  2  Mo.  226 
State  V.  Hardy,  47  New  Hamp,  538 
State  V.  Hargett,  65  N.  C.  669 
State  V.  Ilargrave,  65  N.  C.  466    . 
State  V.  Harkin,  7  Nev.  377 
State  V.  Harlow,  21  Mo.  440 
State  V.  Harrington,  21  Ark.  195 
State  V.  Harris,  34  Mo.  347 

"  "         38  Iowa,  243 


Homicide,  380. 
Mayhem,  436. 

Sentence,  55(i. 

Forgery  and  counterfeiting,  208. 

Abat.  1;  Gr.  jury,  247;  Trial,  606; 

Venue,  change  of,  630. 
Evidence,  147. 
Perjury,  509. 

Forg.  and  counterf.  200,  211,  214. 
Assault  and  battery,  44. 
Bail  and  recognizance,  69. 

Accessory,  10. 

False  pretenses,  177. 

Indictment,  332. 

Evidence,  149;  Homicide.   285. 

Gaming,  238. 

Indictment,  344. 

Horn.  355 ;  Insanity,  359 ;  Intoxica- 
tion as  an  exc.  for  cr.  360,  361. 

Witness,  651. 

Conspiracy,  108. 

Evidence,  143. 

Assault  and  battery,  49. 

Nuisance,  476. 

Former  acquittal  or  convict.  334. 

Homicide,  319. 

Jurisdiction,  365. 

Larceny,  384. 

Nuisance,  470, 

Nuisance,  479. 

Perjury,  500. 

Assault  and.  batteiy,  47. 

Bail  and  recognizance,  64. 

Evidence,  153,  169. 

Evidence,  168. 

Perjury,  507. 

New  trial,  463. 

Assault  and  battery,  34. 

Forgery  and.  counterfeiting,  313. 

Lasciviousness,  418. 

Perjury,  501,  504. 

Gaming,  336. 

Indictment,  333. 

Assault  and  battery,  41. 

Homicide,  858. 

Rape,  519. 

Trial,  610. 

Intox.  as  an  excuse  for  crime,  300. 

Assault  and  battery,  40. 

Assault  and  battery,  50. 

Conspiracy,  105. 


774 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Harris,  5  Ired.  287  ..  . 

"  "        63  N.  C.  1       . 

"  "         59  Mo.  550  ..  . 

"  "         1  Jones,  190    . 

«  "         2  Halst.  361  . 

"  "         3  Harring.  559 

"  "        8  Jones,  136  • 

State  V.  Harrison,  09  N.  C.  143;  1  Green's  Or.  R.  537 
State  V.  Harrold,  38  Mo.  496        . 
State  V.  Hart,  2  Harr.  327        . 

"  "      34  Maine,  36  .  .  . 

State  V.  Harten,  4  Harring.  582 
State  V.  Hartford  &  N.  Haven  R.  R.  Co.  29  Conn.  533 
State  V.  Hartigan,  32  Vt.  607 

"         19  NeAv  Hamp.  248    . 
State  V.  Harvey,  3  New  Hamp.  65 
State  V.  Hascall,  6  New  Hamp.  352 
State  V.  Hash,  12  La.  An.  895 
State  V.  Haskell,  33  Maine,  127     . 
State  V.  Haskett,  3  Hill,  S.  C.  95        . 

"  "       Riley,  97 

State  V.  Hastings,"  53  New  Hamp.  452 ;  2  Green's  C 
Rep.  334  .... 


State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

State  V. 
State  V. 
State  V. 
State  V. 

u 

state  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


State  V. 


Hatchcock,  7  Ired.  52 
Hattaway,  2  Nott  &  McCord,  118 
Havelin,  6  La.  An.  167    , 
Havely,  21  Mo.  498     . 
Hawell,  4  Jones,  55 
Hawkins,  5  Eng.  71 

"        8  Porter,  461    . 
Hayes,  24  Mo.  358      . 
Haynes,  36  Vt.  667 
Hays,  23  Mo.  287 
Hayward,  1  Nott   &  McCord,  546 

"  22  La.  An.  39 

Hazard,  2  R.  I.  474 
Hazeltou,  15  La.  An.  72 
Healy,  48  Mo.  531 
Heath,  41  Texas,  426 
Heathman,  Wright,  690 , 
Hedge,  6  Ind.  330      . 
Heed,  57  Mo.  252 
Heflin,  8  Humph.  84 
Helle,  2  Hill,  S.  C.  290     . 
Helms,  5  Ired.  304      . 
Hemphill,  3  Dev.  &  Batt.  109     . 
Henderson,  15  Mo.  486 

"  66  N.   C.  027 

"  1  Rich.  179 

Hendricks,  Cam.  &  Nor.  369 


Forgery  and  counterfeiting,  216. 

Homicide,  263. 

Homicide,  316. 

Homicide,  318. 

Indictment,  337. 

Larceny,  400. 

Trial,  592. 

Forgery  and  counterfeiting,  222. 

Evidence,  158. 

Forgery  &  counterfeiting,  200,  205. 

Judg.  363;  Nuis.  469;  Trial,  614. 

Kidnapping,  372. 

Mandamus,  435. 

Rape,  529. 

Trial,  607. 

Forcible  entry  and  detainer,  191. 

New  trial,  450 ;  Perj.  512 ;  Ver.  642. 

Evidence,  147. 

Embezzlement,  122. 

Bail  and  recognizance,  68. 

Nolle  prosequi,  467. 

Evidence,  133;  Forgery  and  coun- 
terf'g,  210,  214,  217;  Ind.  338. 
Indictment,  337. 
Perjury,  498. 
Evidence,  148. 
Indictment,  331. 
Assault  and  battery,  43. 
Grand  jury,  247. 
Larceny,  381. 
Indictment,  333. 
Trial,  609. 
Homicide,  256. 
Perjury,  500,  511. 
Insanity,  357. 

Receiving  stolen  property,  535, 536. 
Evidence,  150. 
Embezzlement,  119. 
Malicious  mischief,  431. 
Commitment,  98. 
Indictment,  336. 
Perjury,  511. 
Affray,  17. 
Perjury,  498. 
Malicious  mischief,  430. 
Forcible  trespass,  195. 
Indictment,  337. 
Larceny,  376. 
Libel,  421,  422. 
Indictment,  334. 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Henley,  7  Blackf.  324 
State  V.  Hennessy,  23  Ohio,  N.  S.  339 ;  2  Gr.  C 
State  V,  Henry,  9  Ired.  403 
"  "       5  Jones,  65     . 

"       R.  M.  Charlt.  505 
State  V.  Herman,  13  Ired.  503 
State  V.  Herring,  1  Brev.  159 
State  V.  Hessenkamp,  17  Iowa,  25 
State  V.  Hewitt,  31  Maine,  396     . 
State  V.  Hey  ward,  2  Nott  &  McCord,  312 
State  V.  Hickman,  3  Halst.  299     . 
State  V.  Hicks,  27  Mo.  588     . 
State  V.  Higdon,  32  Iowa,  262      . 
State  V.  Hildreth,  9  Ired.  440 
"  "        9  Ired.  429 

State  V.  Hill,  55  Maine,  365     . 
"  "      3  Brev.  89  . 

"  "      4  Dev.  &  Batt.  491 

State  V.  Hilton,  3  Rich.  434 

"  "         26  Mo.  199     . 

State  V.  Hinckley,  38  Maine,  21     . 

"  "         4  Minn.  345 

State  V.  Hinton,  6  Ala.  864 
State  V.  Hobbs,  39  Maine,  212 
State  V.  Hodge,  50  New  Hamp.  510 
State  V.  Hodgeden,  3  Vt.  481 
State  V.  Hodges,  Phil.  K  C.  231 
State  V,  Hodgkins,  42  New  Hamp.  474 
State  V.  Hoffman,  46  Vt.  176 
State  V.  Hogan,  3  La.  An.  714 
"  "        R.  M.  Charlt.  474 

"  "         30  New  Hamp.  268  . 

State  T.  Hogard,  12  Minn.  293     . 
State  V.  Hogue,  6  Jones,   381 
State  V.  Hoit,  3  Foster,  355 
State  T.  Holden,  48  Mo.  93      . 
State  V.  Holding,  1  McCord,  31  . 
State  V.  HoUey,  1  Brev.  35 
State  V.  HoUoway,  5  Ark.  433      . 
State  V.  Holme,  54  Mo.  153     . 
State  V.  Holmes,  48  New  Hamp.  377 

"  "         28  Conn.  230 

State  V.  Homer,  40  Maine,  438      . 
State  V.  Hood,  51  Maine,  363 
State  V.  Hooker,  17  Vt.  658 
State  V.  Hooper,  2  Bail.  29      . 
State  V.  Hoover,  4  Dev.  &  Batt.  305 
State  V.  Hopkins,  5  R.  I.  53  . 
"  "  7  Blackf.  494  , 

"  "  1  Bay,  373 

State  V.  Horan,  Phil.  N.  C.  571    . 


Indictment,  353. 
r.  R.  481.   Larceny,  397. 
Burglary,  87. 
E\'idence,  150. 

New  trial,  458,  459;  Trial,  596. 
Bastardy,  75. 
New  trial,  464. 
Nuisance,  472. 
Conspiracy,  101,  105. 
Robbery,  547. 
Indictment,  352. 
Homicide,  298. 
Seduction,  553. 
Accessory,  9;  Evidence,  137. 
Homicide,  258,  305,  308. 
Arson,  27. 

Bail  and  recognizance,  61,  62. 
Homicide,  258. 
Bigamy,  80. 
Officer,  492. 

Bill  of  excep.  83 ;  Embezzle.  122. 
Larceny,  390. 
Adultery,  12. 
Warrant,  645,  646. 
Larceny,  409. 
Indictment,  334. 
Rape,  519,  520. 

Former  acquit,  or  conviction,  231. 
Evidence,  166. 
Evidence,  148. 
Indictment,  340. 
Spirituous  liquors,  sale  of,  567. 
Larceny,  409. 
Homicide,  258. 
Indictment,  326,  331. 
Perjury,  507. 

Subornation  of  peijury,  514. 
Forgery  &  counterfeiting,  202,  207. 
Bail  and  recognizance,  69. 
Homi.  256,260,300;  Insanity,  359. 
Arrest,  20. 
Larceny,  397. 

Evidence,  127;  Lasciviousness,417 
Indict.340;  Larc.415;  Vcrdict,639. 
Ass.«&  batt.40,41  ;Ev.l35  ;  Ver.640. 
New  trial,  463. 
Homicide,  263,  313,  320. 
Bill  of  exceptions,  83. 
Indictment,  333. 
New  trial,  445. 
Larceny,  388. 


77G 


TABLE  OF  CASES. 


I 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Horn,  43  Vt.  20   . 

"      19  Ark.  578     . 
State  V.  Home,  9  Kansas,  119;  1  Gr.  Cr.  R.  718 

State  V.  Horton,  63  N.  C.  595 

State  V.  House,  65  N.  C.  315        .  .      ' 

State  V.  Houseal,  3  Brev.  219 

State  V.  Houser,  28  Mo.  233 

State  V.  Houston,  1  Bailey,  300 

"  19  Mo.  211       . 

State  V.  Howard,  83  Vt.  380  . 

"  "         17  New  Hamp.  171 


State  V, 
State  V. 


State  V. 
State  V. 
State  V. 

State  V, 
State  V. 
State  V. 


State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

state  V. 
State  V. 
State  V. 
state  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


"        9  New  Hamp.  485  . 
Howe,  1  Rich.  260 
Howell,  Ga.  Decis.  pt.  1,  1S8 

"         R.  M.  Cbarlt.  120 

"  9  Ired.  485   . 

Hoyle,  6  Ired.  1  . 
Huber,  8  Kansas,  447 
Hudson,  59  Mo.  135         . 
Huffman,  Addis.  140 
Hufford,  28  Iowa,  391     . 
Hughes,  1  Ala.  655     . 
"         1  Swan,  263      . 
"         2  Har.  &  McHen.  479 
Hull,  34  Conn.  133 
Humphrey,  33  Vt.  569 
Humphreys,  10  Humph.  443 
Hundley,  46  Mo.  414 
Hunt,  Coxe,  287  . 
Hunter,  5  Ired.  369    . 
Huntly,  3  Ired.  418 
Hurd,  51  New  Hamp.  176     . 
Hussey,  Busbee,  123 
Hutchinson,  36  Maine,  261     . 

"  26  Texas,  111 

Huting,  21  Mo.  464 
Hutson,  15  Mo.  513 
Hyde,  29  Conn.  564  . 
I.  En,  10  Nev.  377 
Igo,  31  Mo.  459 
Ingold,  4  Jones,  316 
Inhabs.  of  Freeport,  43  Maine,  198 
Inhabs.  of  Gorham,  37  Maine,  451 
Inhabs.  of  Madison,  63  Maine,  540 
Inness,  53  Maine,  530 


State  V.  Intoxicating  Liquors,  44  Vt.  308 
"  "  "54  Maine,  564 

"  "  "         50  Me.  506;  63  lb 


131, 


Bigamy,  80. 

Religious  meeting,  disturb,  of,  541. 

Homicide,  319  ;  Intoxication  as  an 

excuse  for  crime,  361. 
Indictment,  349. 
Larceny,  384. 

Forgery  and  counterfeiting,  211. 
Homicide,  378. 

Forgery  and  counterfeiting,  231. 
Homicide,  366. 
Abortion,  4,  6. 
Evidence,  144;  New  trial,  446,456; 

Trial,  596,  597,  601. 
Evidence,  169  ;  Witness,  659. 
Judgment,  363. 
Assault  and  battery,  50. 
Bail  and  recognizance,  63. 
Homicide,  358. 
Perjurj',  503. 
Homicide,  304. 
Homicide,  357. 

Former  acquit,  or  conviction,  328. 
Fugitives  from  justice,  235. 
Grand  jury,  248  ;  Judgment,  363. 
Indictment,  331. 
Indictment,  331. 
Ass?ult  and  battery,  36. 
Larceny,  378. 

Forg.  and  counterfeiting,  203,  309. 
Insanity,  359. 
Certiorari,  97. 
Nuisance,  471. 

Indict.  336  ;  Misdemeanor,  437. 
Arson,  34. 
Witness,  651. 
Adultery,  13,  14. 
Indictment,  346. 
Insanity,  355. 
Indictment,  331. 
Assault  and  battery,  43. 
Larceny,  409. 
New  trial,  453. 
Homicide,  330. 
Nuisance,  474. 
Nuisance,  474. 
Nuisance,  473,  477. 
Demurrer,  115  ;  Former  acquittal 

or  conviction,  330. 
Indictment,  351. 
Jurisdiction,  364. 
Spirituous  liquors,  sale  of,  578. 


TABLE  OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page, 


State  V.  Irwin,  1  Hayw.  130 

State  V.  I.  S.  S.  1  Tyler,  178 

State  V.  Ives,  13  Ired.  333 

State  V.  Ivins,  36  N.  J.  233 ;  3  Green's 

State  V.  Izard,  14  Rich.  209 

State  V.  Jackson,  17  Mo.  544 

"       33  Maine,  40      . 

"  "39  Maine,  391 

"       65N.  C.  305       . 

"  "13  Ired.  329 

"  "7  Ind.  270 

State  V.  James,  37  Conn.  35o 

State  V.  Jarrett,  1  Ired.  76 
State  V.  Jarvis,  63  N.  C.  556     . 
State  V.  Jasper,  4  Dev.  323 
State  V.  Jay,  5  Vroom  (34  IST.  J.)  363 
State  V.  J.  B.  1  Tyler,  269 
State  V.  Jefferson,  6  Ired.  305 
State  V.  Jeffrey,  3  Murph.  460 
"      66  K  C.  309 
State  V.  Jenkins,  5  .Jones,  430 
"  "14  Eich.  215      . 

"  "2  Tyler,  379 

State  V.  Jennings,  18  Mo.  435 
State  V.  Jericho,  40  Vt.  121     . 
State  V.  Jerome,  33  Conn.  365 
State  V,  Jewell,  33  Maine,  583 
State  V.  Jim,  3  Murphy,  3 

"  "     1  Dev.  149 

State  V.  John,  8  Ired.  330 

"       5  Jones,  103     . 
State  V.  Johnson,   12  Ala.  840 
"         4  Mo.  018 
"         12  Minn.  476     . 
"         Phil.  N.  C.  180       . 
"  "         33  New  Hamp.  441 

"  "         26  Iowa,  407 

"8  Blackf.  533    . 
"  "1  Ired.  354 

"  "8  Iowa,  525 

"  "         10  La.  An.  456 

"  "        40  Conn.  136;  41  lb. 

Cr.  Reps.  487 
'»  "3  Jones,  266     . 

"  "         2  Jones,  247 

"  ■    "         1  Chip.  120       . 

"  "         2  Oregon,  115 

"  "         7  Blackf.  40      . 

"  "         28  Vt.  512 


Evidence,  156. 
Nolle  prosequi,  465. 
Receiving  stolen  property,  535. 
Cr.  Reps.  591.    Rape,  531. 

Assault  and  battery,  47. 
Assault  and  battery,  54  ;  Trial,  606. 
Grand  jury,  248. 
Indictment,  329,  333. 
Larceny,  872. 
Malicious  mischief,  430. 
Malicious  trespass,  435. 
Commitment,  98;  Evidence,  129; 

New  trial,  449. 
Homicide,  255. 
Larceny,  375. 
Misdemeanor,  437. 
Indictment,  345, 
Perjury,  513. 

Evidence,  142;  Rape,  526. 
New  trial,  463. 
Trial,  628. 
Burglary,  88. 
Homicide,  257,  273. 
Larceny,  379. 

Homicide,  256 ;  Verdict,  640. 
Nuisance,  478. 
Rape,  523. 
Trial,  597. 
Indictment,  347. 
Rape,  520. 
Homicide,  260,  276. 
Larceny,  376. 

Assault  and  battery,  37,  47. 
Assault  and  battery,  51. 
Bigamy,  80. 
Burglary,  87. 
False  pretenses,  188,  189. 
Forgery  and  counterfeit.  190,  200. 
Former  acquittal  or  convic.  223. 
Homicide,  355,  377. 
Homicide,  250. 
Homicide,  266, 
584 ;  2  Green's 

Homicide,  ^75 ;  Insanity,  350. 
Homicide,  300. 
Homicide,  314. 
Information,  354. 
Larceny,  385. 
Perjury,  499,  508. 
Rape,  520. 


78 


TABLE   OF  CASES. 


I 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Johnson,  Walker,  392     . 

"  '•         9  La.  An.  308 

State  V.  Joiner,  4  Hawks,  550 
State  V.  Jolly,  3  Dev.  &  Batt.  110 
State  V.  Jones,  7  Nev.  408 

"  "1  Murphy,  257 

"  "5  Ala.  666 


"       4Halst.  2 

"       13  Iowa,  269 

"      54  Mo.  478;  2  Green's  Cr, 

"      70  N.  C.  75 

"       1  McMullan,  236 

"      20  Mo.  58 

"       50  New  Hamp.  369      . 

"       4  Halst.  357 

"       39  Vt.  370 

"       65  N.  C.  395  ■ 

"       2  Bay,  520 

"      9  Ired.  38  . 
Jordan,  19  Mo.  212     . 
Josey,  64  N.  C.  56 
Justice,  2  Dev.  199     . 
J.  W.  1  Tyler,  417 
Kalb,  14  Ind.  403 
Kane,  1  McCord,  482 
Raster,  35  Iowa,  221;  2  Green's 
Kattlemann,  35  Mo.  105  . 
Keach,  40Vt.  113       . 
Kean,  10  New  Hamp.  347 


State  V. 
State  V, 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
.State  V. 

State  V. 
State  V. 
State  V. 


State  V. 

State  V, 


State  V, 
State  V. 
State  V. 
State  V. 
State  V. 


Keel,  54  Mo.  182 
Keenan,  8  Rich.  456  . 
Keene,  6  La.  An.  375 
"        50  Mo.  357      . 
"        34  Maine,  500 
"        26  Maine,  33 
Kemp,  17  Wis.  609 
Kennedy,  7  Blackf.  233 
36  Vt.  563 
"  20  Iowa,  569 

"  7  Nev.  374 

Kent,  65  N.C.  311     . 
Kersh,  1  Strobh.  353 
Keyes,  15  Vt.  405      . 
Kilgore,  6  Humph.  44 
Kimball,  50  Maine,  409 


Reps.  602 


Cr.  R. 


29. 


"  29  Iowa,  267 

State  V.  Kimbrough,  2  Dev.  431 
State  v.  King,  22  La.  An,  454     . 


Trial,  590. 

Witness,  651. 

Bastardy,  76. 

Adultery,  13,  15. 

Accessory,  8 ;  New  trial,  454,  455. 

Appeal,  19. 

Bill  of  exceptions,  83 ;  Trial,  604 ; 

Verdict,  637. 
Certiorari,  97. 
Conspiracy,  105. 
Evidence,  142. 
False  pretenses,  177. 
Forgery  and  counter.  203, 207,  220. 
Homicide,  267. 

Homi.  209 ;  Insanity,  356,  358,  360. 
Indictment,  329. 
Indictment,  346. 
Larceny,  372. 
New  trial,  462. 
Profane  swearing,  517. 
Assault  and  battery,  49. 
Evidence,  166. 
False  pretenses,  179. 
New  trial,  459. 

Spirituous  liquors,  sale  of,  576. 
Larceny,  399. 
Nuisance,  485. 

Forgery  and  counterfeiting,  196. 
Conspiracy,  105. 
Bigamy,  78,  80;   Indictment,  331, 

346. 
Peijury,  507. 
Perjury,  498. 
Contempt,  110. 
Homicide,  290,  298,  316. 
Indictment,  344. 
Perjury,  496,  503,  506. 
Writ  of  error,  662. 
Assault  and  battery,  57. 
Complaint,  99. 
Homicide,  318. 
Trial,  620. 

Larceny,  374  ;  Statutes,  580. 
Larceny,  415. 

Spirituous  liquors,  sale  of,  567. 
Gaming,  243. 
Evi.  132;  Forg.  and  count'fg,  198, 

199,  208,  214,  220;  Trial,  625. 
Indictment,  352. 
Evidence,  134. 
Homicide,  315. 


TABLE   OF   CASES. 


779 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  King,  Sired.  411 

State  V.  Kingsbury,  58  Maine,  238 

State  V.  Kirby,  2  Ired.  201     . 

"  "       57  Maine,  30. 

State  V.  Kitchen,  15  Mo.  207  . 
State  V.  Kitchens,  2  Hill,  S.  C.  612 
State  V.  Klinger,  46  Mo.  224  . 

"  "         43  Mo.  127 

State  V.  Knapp,  45  New  Hamp.  148 
State  V.  Knight,  19  Iowa,  94 

"  "        43  Maine,  11 

State  V.  Knouse,  29  Iowa,  118 
State  V.  Knox,  Phil.  N.  C.  312 
State  V.  Koch,  4  Harring.  570 
State  V.  Kreps,  8  Ala.  591 
State  V.  Kroeger,  47  Mo.  562 
State  V.  Kube,  20  Wis.  217     . 
State  V.  Kuns,  5  Blackf.  314 
State  V.  Kyle,  10  Mo.  389 
State  V.  Ladd,  32  New  Hamp.  110 

"  "       10  La.  An.  271 

"  "       15  Mo.  430 

State  V.  Laflferty,  5  Harring.  491 
State  V.  Laliyer,  4  Minn.  368 
State  V.  Lamb,  65  N.  C.  419  . 

"  "        28  Mo.  218 

State  V.  Lambert,  9  Nev.  321 
State  V.  Lamon,  3  Hawks,  175 
State  V.  Lane,  4  Ired.  113 
State  V.  Lang,  63  Maine,  215 


State  V.  Langford,  Busbee,  N.  C.  436 

"  "  1  Dev.  253 

State  V.  Langley,  34  New  Hamp.  539 
State  V.  Langton,  6  La.  An.  282  . 
State  V.  Lanier,  71  N.  C.  288  ;  2  Green's  Cr.  R.  753. 
State  V.  Larkin,  49  New  Hamp.  36     . 
State  V.  Lathrop,  15  Vt.  279        . 
State  V.  Lattin,  29  Conn.  389. 
State  V.  Laughlin,  8  Jones,  354     . 
State  V.  Lavalley,  9  Mo.  834  .  .  .  . 

State  V.  Laurance,  57  Maine,  574 

"  "  38  Iowa,  51 

State  V.  Lawry,  4  Nev.  161 
State  V.  Lazarus,  1  Rep.  Con.  Ct.  34  . 

"  "         1  Mills,  12         .  . 

State  V.  Lea,  1  Cold.  Tenn.  175 
State  V.  Leaben,  4  Dev.  305 


Nuisance,  480. 

Evidence,  155,  168;  Trial,  599. 

Arrest,  21,  22. 

Bastardy,  77. 

Indictment,  353. 

Homicide,  305. 

Evidence,  160,  164. 

Insanity,  359. 

Rape,  522,  523,  524,  525,  527. 

Evidence,  138. 

Evidence,    161;  Grand  jury,  248; 

Homi.  272;  Trial,  595. 
Homicide,  269  ;  Verdict,  640. 
Perjury,  497. 
Larceny,  393. 
Larceny,  399. 

Forgery  and  counterfeiting,  190. 
False  pretenses,  187. 
Indictment,  339. 
Gaming,  344. 
False  pretenses,  185. 
New  trial,  271,  452. 
Spirituous  liq.  sale  of,  571,  573. 
Arrest,  31. 
Evidence,  149. 

Forg.  &  coun.  203 ;  Indict.  347. 
Homicide,  270. 
Larceny,  397. 
Jury,  371. 

Homi.  258  ;  Indictment,  334. 
Former  acquittal  or  convic.  233  ; 

Nuis.  478;  Search  warrant,  550  ; 

Spirituous  liquors,  sale  of,  570, 

572;  Verdict,  640. 
Bill  of  exceptions,  83. 
Burglary,  88. 
Peijury,  503. 
Nolle  prosequi,  467. 
AflFray,  17. 

Former  acquittal  or  convic.  326. 
False  pretenses,  184. 
Rape,  538. 
Arson,  35. 
Perjury,  500. 

Evidence,  154;  Insanity,  359. 
Trial,  600. 

Assault  and  battery,  56. 
Assault  and  battery,  38,  43. 
Evidence,  132. 
Subornation  of  perjury,  514. 
Grand  jury,  247. 


780 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Leach,  50  Mo.  535      . 
"         60  Maine,  58 

''  "         27  Vt.  317     . 

State  V.  Leaden,  35  Conn.  515 
State  V.  Learned,  41  Vt.  585  . 

47  Me.  426 
State  V.  Leavitt,  82  Maine,  183 
State  V.  Leblanc,  3  Brev.  339 
State  T.  Ledbetter,  4  I  red.  242 
State  V.  Ledford,  67  N.  C.  60 

"  "  6Ired.  5      . 

State  V.  Lehre,  2  Brev.  446 
State  V.  Leighton,  3  Foster,  167 
State  V.  Lemodelio,  23  La.  An.  16 
State  V.  Lemp,  16  Mo.  389 
State  V.  Lendou,  5  Strobh.  85 
State  V.  Leunig,  42  Ind.  541  . 
State  V.  Levy,  3  Stew.  123 
State  V.  Lewis,  1  Bay,  1 

"       2  Hawks,  98 

"  "       10  Kansas,  157 

State  V.  Libby,  44  Maine,  469 
State  V.  Lightbody,  38  Maine,  200 
State  V.  Lincoln,  17  Wis.  579 

"        49  New  Hamp.  464 
State  V.  Lindley,  14  Ind.  430 
State  V.  Linkaw,  63  N.  C.  214;  1  Green's 
State  V.  Linney,  52  Mo.  40 ;  1  Green's  Crim, 
State  V,  Lipsey,  3  Dev.  485     . 
State  V.  Liquor,  38  Vt.  387 
State  V.  Litch,  33  Vt.  67 
State  V.  Litchfield,  58  Maine,  267 
State  V.  Little,  1  New  Hamp.  257 

"  "        6  Blackf.  267 

State  V.  Livermore,  44  New  Hamp.  380 
State  V.  Locke,  35  Ind.  419 
State  V.  Lockhardt,  24  Ga.  420 
State  V.  Loftis,  3  Head,  500 
State  V.  Logan,  1  Mo.  532 
State  V.  London,  3  Rich.  N.  S.  230 
State  V.  Long,  1  Humph.  386 
State  V.  Longljottoms,  11  Humph.  39 
State  V.  Lonou,  19  Ark.  577   . 
State  V.  Lord,  16  New  Hamp.  357 
State  V.  Lorumbo,  Harper,  183 
State  V.  Love,  1  Bay,  167 

"  "        4  Humph.  255 

State  V.  Lowry,  1  Swan,  34 
State  V.  Ludenthall,  5  Rich.  237 
State  V.  Ludwick,  Phil.  N.  C.  401 
State  V.  Lull,  37  Maine,  246     . 


Cr.  R. 

Reps. 


288 
753 


LascivioLsness,  419, 

Officer,  490,  493. 

Subornation  of  perjury,  514. 

Burglary,  93. 

Duress,  118;  Evidence,  152. 

Spirituous  liquoi  s,  sale  of,  567. 

Malicious  mischief,  429. 

Witness,  647. 

Bastardy,  73. 

Larceny,  381. 

Perjury,  502. 

Libel,  424,  425. 

Gaming,  236. 

New  trial,  458. 

Spirituous  liquors,  sale  of,  566. 

Trial,  591. 

Trial,  611. 

Larceny,  396. 

Continuance,  113. 

Former  acquittal  or  convic.    220. 

Perjury,  512. 

Adultery,  14. 

Grand  jury,  246. 

Homicide,  267. 

Indictment,  340. 

Gaming,  237. 

Religious  meeting,  disturb,  of,  540. 

Homicide,  263,  320. 

Homicide,  277. 

Spirituous  liquors,  sale  of,  568. 

Indictment,  334. 

Ev.  150;  Trial,  607  ;  Verdict,  637. 

Former  acquittal  or  convic.  227. 

Gaming,  243. 

Arson,  25. 

False  pretenses,  181. 

Burglary,  91, 

Trial,  606. 

Larceny,  388, 

Larceny,  403. 

Indictment,  329. 

Larceny,  388,  391. 

Assault  and  battery,  35. 

Nuisance,  481. 

New  trial,  463. 

Bastardy,  76. 

Presentment,  517. 

Former  acquittal  or  convic.  227. 

Larceny,  377. 

Ai-'sault  and  battery,  46. 

Larceny,  404 ;  Witness,  654, 


TABLE   OF   CASES. 


781 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Lymburu,  1  Brev.  397 
State  V.  Lyon,  13  Conn.  487    . 

"  "       47  New  Ilamp.  416 

State  V.  Lyons,  3  La.  An.  154 
State  V.  Lytle,  5  Ired.  58    . 
State  V.  Mabrey,  64  N.  C.  592 
State  V.  Mace,  6  R.  L  85   . 
State  V.  Madison,  33  Maine,  267 
State  V.  Magee,  11  Ind.  154. 
State  V.  Magoon,  37  Vt.  122  . 
State  V.  Maher,  35  Maine,  225      . 
State  V.  Mahon,  3  Harring.  568 

"  "        32  Vt.  241 

State  V.  Main,  31  Conn.  572     . 
State  V.  Mairs,  Coxe,  453  . 


"  "      Coxe,  335 

State  V.  Mallory,  5  Vroom  (34  N.  J.)  410 
State  V.  Manchester,  &c.  R.  R.  52  New  Hamp.  52^ 
State  V.  Manly,  1  Overt.  428    . 
State  V.  Manning,  14  Texas,  402  . 
State  V.  Mansfield,  41  Mo.  470 
State  V.  Mansker,  36  Texas,  364   . 
State  V.  Manuel,  72  N.  C.  201 
State  V.  Markham,  15  La.  An.  498 
State  V.  Marler,  2  Ala.  43         .  .  . 

State  V.  Marsh,  36  New  Hamp.  196 

"  "         64  N.  0.  378 

State  v.  Marshall,  47  Mo.  378        . 

"  "  45  New  Hamp.  281 

State  V.  Martin,  30  Wis.  216  . 

"  "         2  Ired.  101     . 

"  "         10  Mo.  391  ,.  . 

"  "         28  Mo.  530     . 

"  "         3  Hawks,  381       . 

"  "         3  Murphey,  533 

State  V.  Marvin,  35  New  Hamp.  22 

"  "         12  Iowa,  499 

State  V.  Massage,  65  N.  0.  480      . 
State  V.  Mathis,  3  Ark.  84       . 
State  V.  Matthews,  37  New  Hamp.  450    . 

"    "  66  N.  C.  106 

State  V.  Maupin,  57  Mo.  205 
State  V.  May,  9  La.  An.  69       . 
State  V.  Mayberry,  48  Maine,  218 


"  "  3  Strobh.  144 

State  V.  May.son,  3  Brev.  284 
State  V.  Maze,  6  Humph.  17    . 


Assault  and  battery,  35. 

Arson,  23 ;  New  trial,  462. 

Larceny,  392. 

Indictment,  329. 

New  trial,  443,  453. 

Assault  and  battery,  36. 

Nuisance,  484. 

Trial,  624. 

False  pretenses,  175. 

Perjury,  501,  508. 

Former  acquittal  or  convic.  230. 

Arrest,  20,  21 ;  Bail  and  recog.  69. 

Evidence,  136. 

Lasciviousness,  416,  419. 

Accessory,  11;  Indictment,  326; 
Mayhem,  436. 

Bail  and  recognizance,  62. 

Malicious  mischief,  431. 

Homicide,  311. 

Commitment,  98. 

Indictment,  331. 

Trial,  603. 

Gaming,  243. 

Animals,  18. 

Indictment,  340. 

Insanity,  357. 

False  pretenses,  178. 

Forcible  entry  and  detainer,  191. 

Perjury,  508. 

Voting,  644. 

Former  acquittal  or  conviction, 
229;  Homicide,  319,  322. 

Homi.  258  ;  Venue,  change  of,634. 

Indictment,  331. 

Larceny,  383. 

New  trial,  442. 

Riot,  544,  545. 

Adultery,  14,  16. 

Lasciviousness,  420. 

Homicide  307. 

Indictment,  336. 

Contempt,  111. 

Evidence,  142. 

Forgery  and  counterfeiting,  203. 

Jurisdiction,  368. 

Conspiracy,  101,  106 ;  Evidence, 
135;  False  pretenses,  176;  In- 
dictment, 336;  Verdict,  G40. 

Escape,  125. 

Perjury,  513. 

Indictment,  326. 


782 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  McAdden,  71  N.  C.  307         . 
State  V.  McAllister,  34  Maine,  139 

"  13  Maine,  374       . 

State  V.  McAloon,  40  Maine,  133  . 
State  V.  McBride,  8  Humph.  66  .  .  . 

"  "         19  Mo.  339        . 

State  V.  McCafferty,  63  Maine,  333     . 

State  V.  3IcCall,  4  Ala.  643  ..  . 

State  V.  McCann,  19  Mo.  349 

'•  "         61  Maine,  116    . 

State  V.  McCanon,  51  Mo.  160  ..  . 

State  V.  McCants,  1  Spear,  384 

State  V.  McCarron,  51  Mo.  37  .  .  . 

State  V.  McCarty,  1  Bay,  334         . 

"17  Minn.  76  .  .  . 

State  V.  McCauless,  9  Ired.  375     . 
State  V.  McClintock,  1  Iowa,  339 ;  8  lb.  303 

"1  Iowa,  393 
State  V.  McCluer,   5  Nev.  133  ... 

State  V.  McClure,  35  Mo.  338        . 
State  V.  McCord,  8  Kansas,  333 ;  1  Green's  Cr.  R.  406. 
State  V.  McCormick,  37  Iowa,  403 

"  3  Carter,  305     . 

State  V.  McCoy,  34  Mo.  531 

"  "        14  New  Hamp.  364 . 

State  V.  McCune,  5  R.  I.  60 
State  V.  McDaniel,  8  Jones,  384 
State  V.  McDavid,  15  La.  An.  403 
State  V.  McDermott,   36  Iowa,  107;    3  Green's  Cr. 
Reps.  634  ..... 

State  V.  McDonald,  35  Mo.  176     . 

"  3  McCord,  399     . 

State  V.  McDonnell,  33  Vt.  491    . 
State  V.  McDowell,  0  Blackf.  49         .  .  . 

Dudley,  S.  C.  346      . 
State  V.  McDuffie,  34  New  Hamp.  510 
State  V.  McElmurray,  3  Strobh.  33 
State  v.  McFall,  Addis.  355    .... 
State  V.  McGinnis,  5  Nev.  337 
State  V.  McGlyun,  34  New  Hamp.  433 

State  V.  McGouigal,  5  Ilarring.  510 
State  V.  McGowan,  30  Conn.  345 

1  Rich.  N.  S.  14 
State  V.  McGregor,  41  New  Hamp.  407 
State  V.  ilcGrew,  13  Rich.  316     . 
State  V.  Mclntire,  1  .lones,  1  ... 


Trespass,  588. 

Forgery  and  counterfeiting,  219. 

Indictment,  336,  340. 

Receiving  stolen  property,  535. 

Gaming,  243. 

Riot,  544. 

Search  warrant,   550 ;    Spirituous 

liquors,  sale  of,  573;  Trial,  635. 
Burglary,  86. 
Larceny,  381. 

Spirituous  liquors,  sale  of,  577. 
Trial,  631. 

Homicide,  358,  375,  308,  313. 
Witness,  653. 
Former  acquittal  or  convic'n,  330 ; 

Pardon,  495. 
Larceny,  377. 
Forcible  trespass,  195. 
Assault  and  battery,  43. 
Former  acquittal  or  convict'n,235. 
Homicide,  333. 
Assault  and  battery,  48. 
Former  acquittal  or  convict'n,  229. 
Homicide,  269. 
Indictment,  335. 
Insanity,  359. 
Larceny,  403. 
Robbery,  545. 
Nuisance,  470. 
Bigamy,  80. 

Malicious  mischief,  433 ;  Malicious 

trespass,  435. 
Adultery,  14. 
Bastardy,  74. 

Homi.  307,308,  314;  Trial,  619. 
Indictment,  331. 
Lasciviousness,  417;  Nuis.  484. 
Malicious  mischief,  430. 
Evidence,  133. 
Homicide,  300. 
Trial,  631. 
Evidence,  130  ;    Indictment,  344  ; 

Spirit,  liquors,  sale  of,  573, 
Intoxic'n  as  excuse  for  crime,  363. 
Arson,  34. 
Larceny,  898. 

Lasciviousness,  420 ;  Trial,  592. 
Larceny,  413. 
Pardon,  493,  494. 


TABLE   OF   CASES. 


783 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V,  McKean,  36  Iowa,  343 ;  3  Green's  Cr.  Reps. 

635  ..  . 

State  V.  McKee,  1  Bailey,  651 
State  V.  McKennau,  Harper,  302 
State  V.  McKenzie,  42  Maine,  392 
State  V,  McLain,  2  Brev.  443  . 
State  V.  McLane,  4  La.  An.  435  . 
State  V.  McLaughlin,  27  Mo.  Ill 
State  V.  McLean,  1  Ark.  311 

"  "         36  Iowa,  343 

State  V.  McLelland,  4  Sneed,  437 
State  V.  McLendon,  1  Stew.  195 
State  V.  McLeod,  1  Hawks,  344    . 

"  "         5  Jones,  318 

State  V.  McMurphy,  52  Mo.  251  ;  1  Green's  Cr.  Reps. 

640  ..  . 

State  V.  McNally,  32  Iowa,  580    . 
State  V.  McNeill,  3  Hawks,  183 
State  V.  McPherson,  70  N.  C.  239 ;  2  Green's  Cr.  Reps. 

737  ... 

State  V.  McQueen,  1  Jones,  177      . 
State  V.  Mead,  27  Vt.  722 
State  V.  Meader,  47  Vt.  78 
State  V.  Medbury,  8  R.  I.  543 

3  R.  L  138         . 
State  V.  Medlicott,  9  Kansas,  257;  1  Green's  Cr.  Reps. 

227  ..  . 

State  V.  Melton,  Busbee,  N.  C.  426 
State  v.  Melvin,  11  La.  An.  535 
State  V.  Merrick,  19  Maine,  398    .  . 
State  V.  Merrill,  2  Dev.  269     . 

"  "3  Blackf.  346       . 

"  "      -44  New  Hamp.  624 

State  V.  Merrit,  35  Conn.  315 
State  V.  Middletown,  5  Porter,  484 
State  V.  Millain,  3  Nev.  409 
State  V.  Millard,  18  Vt.  574   . 
State  V.  Miller,  27  Ind.  15 

"  "       5  Blackf.  502 

"  "       7  Ired.  275 

"       24  Conn.  522 
"       2  Blackf.  35 

"  "      48  Maine,  576 

State  V.  Mills,  2  Dev.  421 

"       17  Maine,  211 
"       19  Ark.  476 
State  V.  Minyard,  7  En^.  156 
State  V.  Mise,  15  Mo.  153 
State  V.  Mitchell,  5  Ired.  350 

Phil.  N.  C.  447 

"  «'        Sired.  Ill 


Evidence,  160. 

Nolle  prosequi,  466. 

Perjury,  506. 

Indictment,  343. 

Larceny,  388. 

Larceny,  397. 

New  trial,  458. 

Forgery  and  counterfeiting,  202. 

Witness,  649. 

Voting,  645. 

Trial,  590. 

Evidence,  167  ;  Verdict,  642. 

Larceny,  388. 

Evidence,  151. 
Verdict,  640. 
Nolle  prosequi,  467. 

Burglary,  92 ;  New  trial,  464. 

Evidence,  168. 

Nuisance,  478. 

Assault  and  battery,  45. 

Adultery,  14. 

Statutes,  579. 

Evidence,  160;  Homicide,  294. 

Bail  and  recognizance,  70. 

Trial,  616. 

Larceny,  406. 

Homicide,  255, 280 ;  New  trial,  447. 

Indictment,  336. 

Indictment,  350  ;  Larceny,  395. 

Nuisance,  471. 

Abatement,  1. 

Evid.  129;   Homi.  256;  Larc.  40G. 

Lasciviousness,  416. 

Assault  and  battery,  51. 

Gaming,  242. 

Indictment,  336. 

Indictment,  344. 

Jury,  370. 

Spirit,  liquors,  sale  of,  567,  577. 

Evid.  152;  False  pretenses,  195. 

False  pretenses,  174. 

Verdict,  641. 

Religious  meeting,  disturb,  of,  541. 

Forgery  and  counterfeiting,  221. 

Arson,  25. 

Evidence,  142. 

Religious  meeting, disturb,  of,  541. 


784 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V. 
State  V. 
State  V. 

State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


State  V. 

u 

State  V. 
State  V. 
State  V. 


State  V. 
State  V. 
State  V, 
State  V. 

State  V, 
State  V, 
State  V, 
State  V 


State  V. 

State  V, 
State  V, 
State  V. 
State  V, 
State  V. 
State  T 


State  V 
State  V 


Mix,  15  Mo.  153      . 
Mobley,  1  McMullati,  44  . 
Moflfett,  1  Iowa,  347 

7  Humph.  250 
Molier,  1  Dev.  263 
Montague,  2  McCord,  257 
Montgomery,  1  Spear,  13 
Mooney,  64  K  C.  54      . 
Moor,  Walker,  134 
Moore,  12  New  Ilamp.  43 

"       1  Smith,  316 

"       69  N.  C.  267;  1  Green's  Cr.  R.  611 

6  Ind.  436    . 

"       11  Ired.  70  .  .  . 

"       1  Swan,  136 

"       31  Conn.  479     . 

"       39  Conn.  244:  1  Green's  Cr.  R.  296 

"       14  New  Hamp.  451 

7  Ired.  228 

"       3  Dutch.  105      . 
"       25  Iowa,  128 
Morau,  34  Allen,  453;  1  Green's  Cr.  R.  749 

"        40  Maine,  129 
Mordecai,  68  N.  C.  207  . 
Morea,  2  Ala.  275    . 
Morgan,  3  Ired.  186       . 
"         2  Dev.  &  Batt.  348 
"         3  Heisk.  262;  1  Green's  Cr.  R.  521 
Morpbin,   37  Mo.  373 
Morphy,  33  Iowa,  270    . 
Morrill,  16  Ark.  384 
Morris,  36  Iowa,  272      . 

3  Mo.  127     .  . 

Morris  Canal  Co.  2  Zabr.  537     . 
Morris  &  Essex  R.  R.  Co.  3  Zabr.  3G0 
Morrisey,  22  Iowa,  158 
Morrison,  2  Ired.  9 

3  Dev.  299     .  . 

3  Dev.  &Batt.  115 
Morse,  50  New  Hamp.  9 

1  Iowa,  503 
Morton,  27  Vt.  310         . 
Moseley,  14  Ala.  390 
Moses,  7  Black f.   244     . 
Mott,  16  Minn.  472 
Muldroon,  9  La.  An.  24 
Mullen,  14  La.  An.  570 
"        10  Iowa,  451     . 
"        30  Iowa,  203 
,  Munco,  13  La.  An.  625  . 
,  Munger,  15  Vt.  2C0  . 


Trial,  610,  612. 

Nuisance,  471. 

Nuisance,  486. 

Perjury,  503. 

Perjury,  498,  511. 

New  trial,  404. 

Riot,  543. 

Assault  and  battery,  45,  46. 

Trial,  638. 

Burglary,  87,  89,  93. 

False  pretenses,  179. 

Homicide,  274,  313. 

Jurisdiction,  366. 

Larceny,  384,  400. 

Lasciviousness,  417. 

Nuisance,  468,  469. 

Officer,  490,  493,  493. 

Spirituous  liquors,  sale  of,  573. 

Verdict,  641. 

Voting,  643. 

"Witness,  651. 

Evidence,  159. 

Spirituous  liquors,  sale  of,  568. 

Burglary,  87,  88. 

Hom.  264 ;  Trial,  596 ;  Wit.  647. 

Assault  and  battery,  83,  55. 

Forgery  and  counterfeiting,  220. 

Threat'ing  to  accuse  of  crime,  586. 

Larceny,  397. 

•Homicide,  26 i,  273;  New  trial, 455. 

Contempt,  110. 

Indictment,  353. 

Trespass,  589.        * 

Nuisance,  473. 

Nuisance,  473,  477. 

Burglary,  90. 

Assault  and  battery,  47. 

Spirituous  liquors,  sale  of,  576. 

Trial,  638. 

Nuisance,  470,  471,  483. 

Peijury,  505. 

Forgery  &  count.  306,310,  214,  219. 

Gaming,  238. 

Indictment,  347. 

Forgery  and  counterfeiting,  201. 

Jurisdiction,  368. 

Homicide,  315. 

Larceny,  383. 

Larceny,  393. 

Assault  and  battery,  51. 

Spirituous  liquors,  sale  of,  571. 


TABLE   (3F   CASES. 


785 


Title  of  Case  and  Report. 


Subject  and  Page, 


State  V.  Munsou,  40  Conu.  475  ;  2  Green's  Cr.  R.  493. 
State  V.  Murdook,  9  Mo.  730 
State  V.  Murphy,  3  Dutch.  112 

"        10  Gill  &  Johns.  365 
"  "       4  Ala.  765     . 

"  "       5  Eng.  74 

"  "        33  Ind.  270  .  .  . 

"  "       61  Me.  56;  2  Green's  Cr.  Reps.  457. 

"       8  Blackf.  498      . 
"  "39  Texas,  46 

"       6  Ala.  845 
State  V.  Murray,  3  Shepl.  (15  Me.)  100 


"  "         63  K  C.  31 

State  V.  Myerfield,  Phil.  N.  C.  108 
State  V.  Myers,  19  Iowa,  517 
"       10  Iowa,  448 
State  V.  Napper,  6  Nev.  113 
State  V.  Nash,  7  Iowa,  347     . 

"  "8  Ired.  85 

"10  Iowa,  81      . 
State  V.  Neal,  37  Maine,  468 

"  "      42  Mo.  119 

State  V.  Neeley,  20  Iowa,  108 
State  V.  Neely,  74  JST.  C  425     . 
State  T.  Negro  Bill,  3  Harring,  571 
State  V.  Nelson,  3  La.  An.  497 
State  V.  Ness,  1  Carter,  64 
State  V.  Nettleton,  1  Root,  308 
State  V.  Neville,  6  Jones,  423 
State  V.  Newbergin,  25  Maine,  500 
State  V.  Newberry,  26  Iowa,  467 

"  "  43  Mo.  429 

State  V.  Newby,  64  N.  C.  23 
State  V.  Newer,  7  Blackf.  307 
State  V.  Newfane,  12  Vt.  422 
State  V.  Newland,  7  Iowa,  242 
State  V.  Newman,  2  Car.  Law  Repos.  74 

"  "         9  Nev.  48     . 

State  V.  Newmarket,  20  N.  Hamp.  519     . 
State  V.  Newport,  4  Harring.  567 
State  V.  Newton,  1  Iowa,  160 
State  V.  Nichols,  8  Conn.  4915 
State  V.  Niles,  47  Vt.  82 
State  V.  Nixon,  18  Vt.  70 
State  V.  Noble,  15  Maine,  476 
State  V.  Noggle,  16  Wis.  333 
State  V.  Noland,  29  Ind.  212 
State  V.  Norman,  2  Dev.  222  . 
State  V.  Norris,  9  N.  Ilamp.  96      . 
State  V.  Northumberland,  44  N.  Ilamp.  628 
50 


Indictment,  332. 

Indictment,  346. 

Abortion,  4. 

Bail  and  recognizance,  70. 

Conspiracy,  104, 106, 

Escape,  125. 

Evidence,  130. 

Homicide,   306,  307. 

Larceny,  383,  395. 

Larceny,  388. 

Rec'g  stolen  prop.  533,  534,  535. 

Conspiracy,    104 ;     Escape,     124 ; 

Misdemeanor,  440. 
Rape,  526. 

Assault  and  battery,  34. 
Ass.  and  bat.  32;  Consp.  104. 
Forgeiy  and  counterfeiting,  210. 
Assault  and  battery,  44. 
Consp.  104;  Homicide,  262,  281. 
Evidence,  157. 
Witness,  651. 
Assault  and  battery,  53. 
Perjury,  505. 
Homicide,  320. 
Rape,  530. 

Assault  and  battery,  55. 
Evi.  144 ;  Indict.  353 ;  Lar.  397. 
Gaming,  238. 
Witness,  648. 
Homicide,  260. 
Burglary,  87,  92.      ' 
Assault  and  battery,  50. 
Witness,  651. 
Malicious  mischief,  434. 
Abatement,  2. 
Indictment,  335. 
Forgery  and  counterfeiting,  212. 
Abatement,  1. 
Larceny,  385. 
Nuisance,  470. 
Accessory,  11. 
Perjury,  502. 
Assault  and  battery,  57. 
Rape,  519,  523. 
Nuisance,  481. 
Indictment,  349. 
Bill  of  exceptions,  82. 
Gaming,  241. 
Bigamy,  78. 

Perjury,  497,  498,  504,  505. 
Nuisance,  471,  485. 


■86 


TxVBLE   OF   CASES. 


I 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Northumberland,  46  K  Hamp.  156 
State  V.  Norton,  45  Vt.  258     . 
"         3  Zabr.  33 
"         2  Ircd.  40       . 
State  v.  Norvell,  2  Yerg.  24 
State  v.  Noyes,  25  Vt.  415 

"  "         36  Conn.  80 

"  "         30  N.  Hamp.  279 

State  V.  Nutt,  28  Vt.  598  . 
State  V.  Nutting,  39  Maine,  359 
State  V.  O'Bonnor,  1  Bail.  144 
State  V.  Obregon,  10  La.  An.  799 
State  V.  O'Brien,  2  Root,  516 

"  "         7  R  I.  336    . 

"  "         3  Vroom  (32  N.  J.)  169 

State  V.  O'Connell,  26  Ind.  266     . 
State  V.  O'Conner,  49  Me.  594 
State  V.  O'Connor,  31  Mo.  389      . 
State  V.  Odel,  3  Brev.  552;  2  Const.  R.  758 
State  V.  Odell,  4  Blackf.  156 
State  V.  O'Donald,  1  McCord,  532      . 
State  V.  O'Dounell,  10  R.  I.  472;  2  Green's  Cr.  R 
State  V.  ODriscoll,  2  Bay,  153 
State  V.  Offutt,  4  Blackf.  355 
State  V.  O'Hagan,  38  Towa,  504 
State  V.  O'Keefe,  41  Vt.  691 
State  V.  Oliver,  2  Houston,  Del.  585 

''  "        70  N.  C.  60 

State  V.  O'Neal,  7  Ired.  251     . 

"  "  ■      4  Ired.  88 

State  V.  Ormond,  1  Dev.  &  Batt.  119 
State  V.  Orrell,  Busbee,  N.  C.  217 

"  "       1  Dev.  139 

State  V.  Orvis,  13  Ind.  569 
State  V.  Orwig,  24  Iowa,  102    . 
State  V.  Osborn,  1  Root,  152 
State  V.  Outlaw,  72  N.  C.  598  . 
State  V.  Overton,  4  Zabr.  435 

"  "         6  Ired.  165    . 

State  V.  Owen,  1  Murphey,  453     . 

"      Phil.  N.  C.  425 
State  V.  Owens,  10  Rich.  169 
State  V.  Oxford,  30  Texas,  428 
State  V.  Packard,  4  Oregon,  157  . 
State  V.  Paddock,  24  Vt.  312  . 

State  V.  Paine,  T.  U.  P.  Charlt.  142 
State  V.  Palmer,  18  Vt.  570 
State  V.  Parham,  5  Jones,  416 
State  V.  Parish,  8  Rich.  323 


Nuisance,  477. 

Animals,  18;  Complaint,  100. 

Consp.  103,  103,  105 ;   Indict.  353. 

Unwholesome  prov.  sale  of,  631. 

Former  acquit,  or  convic.  238,  330. 

Conspiracy,  104,  105. 

Rape,  533. 

Statutes,  579. 

Former  acquittal  or  convic.  330. 

Nolle  prosequi,  467  ;  Trial,  608. 

Indictment,  339. 

Trial,  624. 

Arson,  25. 

Evidence,    131;    New   trial,    453; 

Verdict,  641. 
Homicide,  310. 
Arson,  28. 

Spirituous  liquors,  sale  of,  575.. 
Homicide,  310. 

Forgery  and  counterfeiting,  308. 
Former  acquittal  or  convic.  337. 
Indictment,  330. 
Indictment,  344. 
New  trial,  444. 
Perjury,  503. 
Perjury,  504. 
Indictment,  333. 
Arrest,  31 ;  Homicide,  259. 
Assault  and  battery,  35. 
Evidence,  151 ;  Trial,  614. 
Witness,  659. 
Mayhem,  436. 
Bill  of  exceptions,  82. 
Homicide,  283. 
False  pretenses,  180. 
Embezzlement,  119. 
Forgery  and  counterfeiting,  314. 
Burglary,  88,  90. 
Assault  and  battery,  37. 
Trial,  596. 

Assault  and  bat.  41 ;  Homi.  267. 
Homicide,  358. 
Larceny,  403. 
Grand  jury,  248. 
Officer,  401. 
Information,  354;  Spirit,  liquors, 

sale  of,  577. 
Habeas  corpus,  350. 
Indictment,  344. 
Adultery,  13. 
Former  acquittal  or  convic.  230, 


TABLE   OF   CASES. 


787 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Pariah,  8  Humpb.  80  . 
State  V.  Parker,  43  New  Hamp.  83 

"  "        1  Chip.  298    . 

State  V.  Parmelee,  9  Conn.  259      . 
State  V.  Parrant,  16  Minn.  178  ..  • 

State  V.  Parrott,  71  N.  C.  311;  2  Green's  Cr.  R.  755. 
State  V.  Patillo,  4  Hawks,  348  .•  • 

State  V.  Patrick,  3  Wis.  812  ..  • 

"  "         3  Jones,  443  ... 

State  V.  Patten,  10  La.  An.  299     . 
State  V.  Patterson,  45  Vt.  308;  1  Green's  Cr.  R  490. 

"  "  2  Irecl.  346  ..  • 

"  "  1  McCord,  177 

u  "  1  Woodbury  &  Minot,  305 

"  "  63  N.  C.  520  . 

State  V.  Patton,  5  Ired.  180    . 
State  V.  Patza,  3  La.  An.  512       . 
State  V.  Payne,  4  Mo.  376        . 
State  V.  Payson,  37  Maine,  361      . 
State  V.  Peace,  1  Jones,  251    . 
State  V.  Pearce,  2  Blackf.  318        . 
State  V.  Pearman,  Phil,  N.  C.  371 
State  V.  Pearson,  2  New  Hamp.  550 
State  V.  Peckbam,  9  R.  I.  1    . 
State  V.  Pemberton,  30  Mo.  376    . 
State  V.  Pendergrass,  2  Dev.  &  Batt.  365 
State  V.  Penley,  27  Conn.  587 
State  V.  Pennington,  3  Head,  Tenn.  299 
State  V.  Pepper,  8  Mo.  249 
''  "        11  Iowa,  347 

u  "        68  N.  C.  259 ;  3  Green's  Cr.  R.  733,  n 

State  V.  Perham,  4  Oregon,  188 
State  V.  Perkins,  3  Hawks,  377     . 
State  V.  Perry,  5  Jones,  9 

"  "       42  Texas,  238 

State  V.  Peter,  Ga.  Decis.  pt.  1,  46 

"  "      8  Jones,  10 

State  V.  Peterson,  2  La.  An.  221 
State  V.  Pettaway,  3  Hawks,  623  . 
State  V.  Pettis,  63  Maine,  124  . 
State  V.  Petty,  Harper,  59 
State  V.  Phelp3,  11  Vt.  116  •  . 

"  "         24  La.  An.  493 

State  V.  Phil,  1  Stew.  31     . 
State  V.  Philbrick,  31  Maine,  401 
State  V.  Phillips,  24  Mo.  475 
State  V.  Phinncy,  43  Maine,  384 
State  V.  Phipps,  10  Ired.  17 
State  V.  Pierce,  8  Iowa,  231     . 


Gaming,  241. 

Conspiracy,  104, 105, 106,  107,  108. 
Forgery  and  counterfeiting,  203. 
Assault  and  battery,  53. 
New  trial,  454. 
Nuisance,  486. 
False  pretenses,  184. 
Assault  and  battery,  50. 
Eyidence,  147. 
Insanity,  356. 

Assault   and  battery,   38;   Homi- 
cide, 293,  314,  321 ;  Trial,  626. 
Bigamy,  78,  80 ;  Witness,  657,  658. 
Continuance,  111. 
Indictment,  340. 
Larceny,  411. 
Bastardy,  73. 

Evidence,  158 ;  Indictment,  348. 
Former  acquittal  or  convic.  227. 
Nuisance,  479 ;  Verdict,  639. 
Homicide,  295. 
Adultery,  12. 
Trespass,  588. 

Forcible  entry  and  detainer,  192. 
Nuisance,  478. 
Homicide,  267. 
Assault  and  battery,  36. 
False  pretenses,  181,  189. 
Eavesdropping,  118. 
Bail  and  recognizance,  71. 
Evidence,  158. 
Profane  swearing,  517. 
Officer,  491. 
Evidence,  139. 
Affray,  17. 
Perjury,  505. 
New  trial,  454. 
Rape,  523. 

Indictment,  329;  Jurisdiction,  368. 
Bastardy,  72,  75. 
Larceny,  402,  411. 
Indictment,  343. 
Forgery  and  counterfeiting,  212; 

Indictment,  346. 
Homicide,  268. 
Trial,  591. 

False  pretenses,  180,  181. 
Homicide,  262,  288. 
Ass.&bat.57;  Officer,489;  Ver.640. 

Trespass,  588. 

For^.  and  count.  195,196,200,215. 


788 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Pierce,  43  New  Hamp.  273 

"  "       7  Ala.  728 

"       8  Nev.  291      . 
State  V.  Pike,  61  New  Hamp.  105 

"  "      49  New^  Hamp.  399 

"  '"      20  New  Hamp.  844 

"      33  Maine,  361 
State  V.  Pile,  5  Ala.  72     . 
State  V.  Pilsbury,  47  Me.  449 
State  V.  Pitts,  13  Rich.  27 
"      57  Mo.  85 
State  V.  Pluinmer,  50  Maine,  217 
State  V.  Plunket,  3  Stewart,  12 
State  V.  PoUand,  53  Maine,  124     . 
State  V.  Pollock,  4  Ired.  303  . 
State  V.  Poison,  29  Iowa,  133 
State  V.  Pool,  2  Dev.  202 
State  V.  Populus,  12  La.  An.  710 
State  V.  Porter,  34  Iowa,  131 ;  1  Green's  Cr, 

"  "       2  Hill,  S.  C.  611 

State  V.  Portland,  &c.  R.  R.  Co.  67  Maine 
State  V.  Posey,  1  Humph.  384      . 
State  V.  Poteet,  8  Ired.  28 
State  V.  Potter,  13  Kansas,  414    . 
"       28  Iowa,  554 
"       18  Conn.  166 
State  V.  Potts,  4  Halst.  26 
State  V.  Powell,  28  Texas,  026     . 

"  "       70  N.  C.  67 ;  2  Green's  C 

"3  Halst.  244 
State  V.  Powers,  8  Hawks,  376 

"  "        Ga.  Decis.  pt.  1,  150 

State  V.  Pratt,  34  Vt.  333 

"  "       9La.  An.  157 

"  "20  Iowa,  367     . 

State  V.  Prescott,  83  New  Hamp.  312 

"  "7  New  Hamp.  287 

State  V.  Presler,  3  Jones,  421 
State  V.  Preston,  34  Wis.  675 
State  V.  Prey,  14  New  Hamp.  464 
State  V.  Price,  6  Halst.  303 
State  T.  Prince,  63  N.  C.  539 
State  V.  Prudhomme,  35  La.  An.  633 
State  V.  Pryor,  30  Ind.  350 
State  V.  Pugh,  7  Jones,  61 

"  "       15  Mo.  509 

Slate  V.  Purdom,  3  Mo.  83      . 
State  V.  Putnam,  Coxe,  360 
State  V.  Pybass,  4  Humph.  443 
State  V.  Quick,  15  Rich.  343 


Lasciviousness,  417. 

Malicious  mischief,  431. 

Sentence,  556. 

Evidence,  138. 

Evidence,  164  ;  Homicide,  369;  In- 
sanity, 356,  359 ;  Trial,  595. 

New  trial,  446,  448. 

Trespass,  588. 

Assault  and  battery,  51. 

Spirituous  liquors,  sale  of,  571. 

False  pretenses,  188. 

Former  acquit,  or  convic.  231. 

Perjury,  501. 

Larceny,  388. 

Larceny,  392. 

Fore.  ent.  and  det.  194  ;  Nuis.  476. 

Evidence,  135. 

Indictment,  347. 

New  trial,  455. 
Reps.  241.  Evi.l61;Homi.273,301;Insan.358. 

Perjury,  504. 
403         .      Nuisance,  479,  480. 

Gaming,  338;  Homicide,  383. 

Lasci\"iousness,  430. 

Affray,  17;  Homicide,  398,  819. 

Conspiracy,  105,  106. 

Trial,  603,  603. 

Forgery  and  counterfeiting,  303. 

Perjury,  505. 
Reps.  731.     Profane  swearing,  517. 

Witness,  653. 

New  trial,  441. 

New  trial,  463. 

Evi.  156;  Common  drunkard,  99. 

Jurisdiction,  868. 

Larceny,  379,  410. 

Gaming,  343,  344. 

New  trial,  441,  454. 

Homicide,  373. 

Indictment,  346. 

Witness,  648. 

Indictment,  335,  339. 

Trial,  611. 

Evidence,  159. 

False  pretenses,  180. 

Assault  and  battery,  35. 

Malicious  mischief,  431. 

Gaming,  338. 

Forcible  entry  and  detainer,  194. 

Accessory,  10. 

Homicide,  298. 


TABLE   OF   CASES. 


r89 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V,  Quimby,  51  Maine,  395    . 
State  V.  Quin,  3  Brev.  515 ;  2  Const.  Rep.  C91 
State  V.  Rabon,  4  Rich.  260  . 

State  V.  Raiford,  7  Porter,  101 
State  V.  Ramsej',  5  .Jones,  195      . 
State  V.  Rand,  33  New  Hamp.  216    . 
State  V.  Randolph,  24  Conn.  363  . 
State  V.  Rankin,  3  Rich.  N.  S.  438;  1  Gr.  Cr.  R.  503. 
"  "  8  Iowa,  355  ..  . 

State  V.  Rash,  12  Ired.  382  ..  . 

State  V.  Ravelin,  1  Chip.  295  .... 
State  V.  Ravvles,  65  N.  C.  334       . 
State  V.  Rawls,  2  Nott  &  McCord,  331 
State  V.  Ray,  10  Ired.  39  . 

"      Rice,  1 

"  "      53  Mo.  345  .... 

State  V.  Raymond,  20  Iowa,  582 
State  V.  Records,  4  Har.  554 
State  V.  Rector,  11  Mo.  28       . 
State  V.  Reddick,  7  Kansas,  143  . 
State  V.  Redmond,  9  La.  319  . 
State  V.  Reed,  40  Vt.  603 

"  "       62  Maine,  129;  2  Green's  Cr.  Reps.  438 

"  "35  Maine,  489  . 

"  "       88  New  Hamp.  59 

"  "       39Vt.417         .  .  .  . 

"  "       26  Conn.  202  .  .  . 

State  V.  Reeves,  8  Ired.  19     .... 
State  V.  Regan,  63  Maine,  127       . 
State  V.  Reid,  20  Iowa,  413     . 
State  V.  Reidel,  26  Iowa,  430        . 
State  V.  Renton,  15  New  Hamp.  169  . 
State  V.  Reonnals,  14  La.  An.  278 
State  V.  Revels,  Busbee,  200  .  . 

State  V.  Rhodes,  Phil.  N.  C.  453  . 
State  V.  Richards,  33  Iowa,  420         . 
State  V.  Richardson,  38  New  Hamp.  208 
State  V.  Ricker,  29  Maine,  84  .  .  . 

State  V.  Rickey,  5  Halst.  83  .  .  . 

"4  Halst.  293 
State  V.  Riggs,  39  Conn.  498;  1  Green's  Cr.  R.  558. 
State  V.  Ripley,  31  Maine,  386 

State  V.  Rippon,  2  Bay,  99  ... 

State  V.  Ritchie,  3  La.  An.  715     . 
State  V.  Roach,  2  Hayw.  552 
State  V.  Roane,  2  Dev.  58  .  .  . 

State  V.  Roberts,  34  Maine,  320  . 

"  •'         1  Hawks,  349    . 

"  "26  Maine,  208  . 


Grand  jury,  246. 

Assault  and  battery,  39. 

Homicide,  268 ;  New  trial,  462,463. 

Indictment,  334,  343. 

Homicide,  307. 

Burglary,  89;  Evidence,  139. 

Evidence,  169. 

Nuisance,  469,  470,  476. 

Witness,  651. 

Homicide,  279;  Trial,  615. 

Forgery  and  counterfeiting,  216. 

Assault  and  battery,  33. 

Evidence,  131. 

Forcible  entry  and  detainer,  191 ; 

Forcible  trespass,  195. 
Former  acquittal  or  conviction, 227. 
New  trial,  458. 
Perjury,  505,  506,  511,  513. 
Gaming,  236. 
Indictment,  353. 

Ev.  161 ;  Homi.  304;  Insanity,  358. 
Contempt,  110. 
Assault  and  battery,  42. 
Evidence,  139,153;  Trial,  614,  619; 

Witness,  660. 
Indictment,  334. 
Nuisance,  470. 
Rape,  526. 
Trial,  618. 
Trial,  593. 
Larceny,  401. 

Burglary,  86,  90 ;  Larceny,  409. 
False  pretenses,  179,  186. 
Riot,  544. 

Embezzlement,  123;  Larceny,  385. 
Former  acquittal  or  conviction,  226. 
Assault  and  battery,  35,  36. 
Rape,  523. 
Officer,  490. 
Accessory,  10. 
Abatement,  2. 

Conspiracy,  109;  Grand  jury,  247. 
Libel,  424. 

Conspiracy,  102,  103,  105,  108. 
New  trial,  442. 

Former  acquittal  or  conviction,  228. 
Indictment,  352. 
Homicide,  322. 
Conspiracy,  105. 
Homicide,  305. 
Indictment,  333. 


roo 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page, 


State  v.Eoberts,  52  NewHamp.  493;  1  Gr.  Cr.  R.  157. 

"  "         11  Humph.  539      . 

"  "         15  Mo.  28  .  .  . 

State  V.  Robey,  8  Nev.  312 ;  1  Green's  Grim.  R.  G74. 
State  V.  Robinson,  6  Vroom  (35  N.  J.)  71      . 

"  "  1  Harr.  507     . 

"  ''  29  New  Hamp.  274 

"  ''  2  Dev.  &  Butt.  130     . 

"  "  49  Maine,  285       . 

"  "  17  New  Ilamp.  263   . 

State  T.  Rochelle,  2  Brev.  388  ..  . 

State  V.  Rockafellow,  1  Halst.  332 
State  V.  Roderica,  35  Texas,  507 
State  V.  Roe,  12  Vt.  93     . 

State  V.  Robfriscbt,  12  La.  An.  382    . 

State  V.  Rood,  12  Vt.  296 

State  V.  Roper,  3  Dev.  473      .... 

"         1  Dev.  &  Batt.  208   ' 
State  V.  Roiabacber,  19  Iowa,  154 
State  V.  Rose,  Phil.  N.  C.  406       . 

"  "-    29  Mo.  32  ...  . 


"     7Blackf.  322 

"  "■     21  Iowa,  467      . 

"  "     18  La.  An.  340 

"  "     32  Mo.  560 

"  "     4  Jones,  315 

State  V,  Roulstone,  3  Sneed,  107 
State  V.  Rout,  3  Hawks,  618 
State  V.  Rowley,  12  Conn.  101 
State  V.  Royal,  1  Scam.  557 
State  V.  Royster,  65  N.  C.  539 
State  V.  Ruhl,  8  Iowa,  447 
State  Y.  Runnals,  49  New  Hamp.  498 
State  V.  Russell,  2  La.  An.  604 

"  "         45  New  Hamp.  88     . 

State  V.  Rust,  8  Blackf.  195 

"  "      35  New  Hamp.  438       . 

State  V.  Rutherford,  1  Hawks,  457 
State  V.  Rutledge,  8  Humph.  32 
State  V.  Rye,  9  Yerg.  386 
State  V.  Sales,  2  Nev.  268 
State  V.  Saliba,  18  La.  An.  35 
State  V.  Sam,  2  Dev.  567 
State  V.  Samuel,  3  Jones,  74 
State  V.  Sanders,  30  Iowa,  582 
State  T.  Sandv,  3  Ired.  570 


Officer,  488,  490,  492. 

Perjury,  499. 

Vagrant,  634;  Witness,  649. 

Assault  and  battery,  49. 

Burglary,  90. 

Forg.  &  counterfeiting,  199, 221. 

Indictment,  332,  333,  344. 

Malicious  mischief,  429. 

Search   warrant,  550 ;    Sijirituous 

liquors,  sale  of,  577. 
Spirituous  liquors,  sale  of,  577. 
Accessory,  10 ;  Homi.  262,  266. 
Abatement,  1. 
Gaming,  242. 
Arson,  28;  Evidence,    166;  Nolle 

prosequi,  465 ;  Trial,  614. 
Arson,  31. 
Adultery,  14. 
Larceny,  379. 
Lasciviousness,  418. 
Evidence,  136. 
Assault  and  battery,  46. 
Former   acquittal    or   conviction, 

229;  Homicide,  288. 
Gaming,  242. 
Jurisdiction,  366. 
Jurisdiction,  368. 
Lasciviousness,  516. 
Trespass,  589. 
Lasciviousness,  417. 
Larceny,  389. 
Conspiracy,  103,  104. 
Writ  of  error,  662. 
Larceny,  400. 
Seduction,  551. 
Complaint,  100. 
Indictment,  347. 
Riot,  542,  543. 
Indictment,  334. 
Indictment,    338;     Misdemeanor, 

438 ;  Spirit,  liquors,  sale  of,  570. 
Bail  &  recog.  62 ;  Homicide,  322. 
Judgment,  362. 
Bail  and  recognizance,  64. 
Embracery,  123. 
Verdict,  638. 
Indictment  333. 
Homicide,  260. 
Adultery,  12,  14. 
Arson,  23,  28,  29 ;  Indictment,  347. 


TABLE   OF   CASES. 


791 


Title  of  Case  and  Report. 


Subject  and  Page, 


State  V.  Sant'ord,  1  Nott  &  McCord,  512 

State  V.  Sausom,  3  Brev.  5 

State  V.  Surtor,  2  Strobh.  60 

State  V.  Sauuclers,  3  Halst.  177     . 

State  V.  Savage,  32  Maine,  583 

State  V.  Scaggs,  33  Mo.  92 

State  V.  Scaiinell,  39  Maine,  68 

State  V.  Scates,  5  Jones,  420 

State  V.  Schaunhmst,  34  Iowa,  547    . 

State  V.  Scbill,  27  Iowa,  363 

State  V.  Sebingeu,  20  Wis.  74 


.State  y 
State  V, 
State  V, 
State  V. 


State  V, 
State  V. 
State  V. 
State  V. 
State  V. 
State  V, 
State  V. 
State  V, 
State  V 
State  V. 
State  V, 


State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


,  Schlagel,  19  Iowa,  169 
Scblottman,  52  Mo.  164;  1  Green 
Scboenwald,  31  Mo.  147 
Scott,  24  Vt.  127 

"       39  Mo.  424       . 

"       45  Mo.  302 

"       12  La.  An.  274 

"       4  Ired.  409 

"       64  N.  C.  586     . 

"       1  Hawks,  24 

"       72  N.  C.  461    . 

"       11  La.  An.  429;  12  lb.  380 
Scovel,  1  Mills,  274    . 
Scripture,  42  New  Hamp.  48 
Seals,  16  Ind.  352 
Seamons,  1  Iowa,  418 
Seay,  3  Stew.  123 
Segar,  T.  U.  P.  Charlt.  24 
Self,  1  Bay,  242 
Sexton,  3  Hawks,  184 
Seymour,  36  Maine,  225 
Sbadley,  16  Ind.  230 
Shaw,  3  Ired.  20 

"        1  Koot,  134 

"        31  Maine,  523 

"       4  Jones,  440 

"       3  Ired.  532 
Shawley,  5  Hayw.  256     . 
Shean,  32  Iowa,  88     . 
Shelledy,  8  Iowa,  477 
Sbelton,  2  Jones,  360 
Shepard,  10  Iowa,  126     . 
"         7  Conn.  54 


State  V.  Shepherd,  8  Ired.  195       . 
State  V.  Slierbourne,  Dudley,  Ga.  28 
State  V,  Sherlock,  26  Texas,  106 
State  V.  Shermer,  55  Mo.  83 ;  2  Green's  Cr. 
State  V.  Shcttleworth,  1  8  Minn.  208 


Receiving  stolen  property,  533. 

Larceny,  400. 
.      New  trial,  463. 

Bail  and  recognizance,  69. 

Larceny,  392. 

Gaming,  242. 

Assault  and  battery,  57. 

Evidence,  147;  Homicide,  257. 
.      Incest,  324,  325. 

Perjury,  503. 

Intoxication    as     an     excuse    for 
crime,  361 ;  Larceny,  375. 

Witness,  649. 
'sCr.  R.  553.  Nuisance,  467. 

Trial,  605. 

Assault  and  battery,  47. 

Evidence,  149. 

Forgery  and  counterfeiting,  222. 

Homicide,  264. 

Homicide,  318. 

Larceny,  378. 

New  trial,  445,  446. 

Rape,  520. 

Verdict,  638. 

Receiving  stolen  property,  533, 

Burglary,  86,  90 ;  Indictment,  336. 

Bigamy,  80. 

As3.  &  battery,  50 ;  Indict.  334. 

Larceny,  385. 

Habeas  corpus,  251. 

Larceny,  381. 

Indictment,  333. 

Burglary,  90. 

Malicious  trespass,  435. 

Arrest,  20;  Indictment,  337. 

Arrest,  21, 

Arson,  24. 

Larceny,  409. 

Trial,  596,  597. 

Forgery  and  counterfeiting,  210. 

Seduction,  553. 

Conspiracy,  104,  201,  310. 

Homicide,  292. 

Assault  and  battery,  33,  50,  57. 

Former   acquittal    or    conviction, 
229;  Rape,  521,531, 

Homicide,  265, 

New  trial,  455. 

Larceny,  387. 
Reps.  613.    Larceny,  380,  382,  412. 

Evidence,  129;  Rape,  523,524. 


792 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V. 

Shields,  8  Blackf.  151 

'^       11  La.  Au.  395 
"       13  Mo.  236    . 

state  V, 

Shinborn,  46  New  Hamp,  497     . 

State  V. 

Shippey,  10  Minn.  233 

State  V. 

Shoemaker,  7  Mo.  177      . 

State  V. 

Shooter,  8  Kich.  73 

State  V. 

Shorts,  3  Vroom  (32  N.  J.)  398 

State  V. 

Shoultz,  25  Mo.  128 

State  V. 

Shuford,  69  N.  C.  486 ;  1  Green's  Cr 

R.  347. 

State  V. 

Shule,  10  Ired.  153     . 

State  V. 

Shurtliflf,  18  Maine,  368 

State  V. 

Shupe,  16  Iowa,  36 

State  V. 

Sias,  17  New  Hamp.  558 

State  V. 

Sickles,  Brayt.  132     . 

State  V. 

Silver,  3  Dev.  332 

State  V. 

Simmons,  1  Brev.  6 

19  Ohio,  139    . 
4  Strobh.  366 
3  Ala.  497 

State  V. 

Simon,  50  Mo.  370      . 

State  V. 

Simons,  17  New  Hamp.  83 
Dudley,  Ga.  37 
30  Vt.  630 

State  V. 

Simpson,  3  Hawks,  460 

3  Hawks,  630   . 
1  Bail.  378 

State  V 

Sims,  3  Bail.  39                . 
"       3  Strobh.  137 
"      Dudley,  Ga.  213      . 

State  V 

Sisson,  3  Brev.  58      . 

State  V 

Skolfield,  63  Maine,  366 

State  V 

Slack,  6  Ala.  676 

State  V 

Sleeper,  37  Vt.  133 

State  V 

Sloan,  47  Mo.  604 

. 

State  V 

Slocum,  8  Blackf.  315      . 

State  V 

Smart,  4  Rich.  356     . 

State  V 

Smith,  33  Maine,  369       . 
54  Maine,  33  , 

31  Texas,  748 

1  New  Hamp.  346 
38  Iowa,  565 

3  Humph.  457     . 

2  Bay,  63 

3  Greenl.  63 

5  La.  An.  340 
13  Kansas,  374      . 
8  Jones,  133 
11  Ired.  33 

• 

Indictment,  339. 

Trial,  616. 

Witness,  658. 

Evidence,  131,  133,  163. 

Homicide,  317. 

Foigery  and  counterfeiting,  211. 

Conspiracy,  103. 

Lottery,  436. 

Homicide,  383. 

Evidence,  157, 

New  trial,  463. 

Forg.  and  counterf.  197,  198,  333. 

Pel  jury,  498. 

Former  acquittal  or  convict.  336. 

Information,  354. 

Witness,  653. 

Accessory,  10. 

Bail  and  recognizance,  61,  63. 

Conspiracy,  108. 

Mayhem,  436. 

Homicide,  397. 

Evi.  153 ;  Spir.  liq.  sale  of,  573. 

New  trial,  459. 

Perj.  and  suborn,  of  perj.  496,  514. 

Arson,  28. 

False  pretenses,  173. 

Pardon,  493. 

Accessory,  10. 

Assault  and  battery,  33,  42. 

New  trial,  463. 

Homicide,  363. 

Fishery,  190. 

Former  acquittal  or  convict.  223. 

Perjury,  501,  505,  508. 

Homicide,  316. 

Indictment,  332,  339. 

Larceny,  391,  403. 

Abort.5,7;  Ev.l60;  Hom. 261,271. 

Amend.  18 ;  New  trial,  442 ;  Spirit. 

liquors,  sale  of,  577. 
Animals,  18. 
Arrest,  21. 
Arson,  39. 

Assault  and  battery,  33,  41. 
Assault  and  battery,  46. 
Bail  and  recognizance,  64. 
Burglary,  93. 

Embezzlement,  131 ;  Trial,  632. 
Evidence,  120. 
Evidence,  135. 


I 


TABLE   OF   CASES. 


r93 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Smith,  8  Blackf.  489 

2  Ired.  127 
"             •'         8  Yerg.  150    . 

5  Day,  175 
"         Meigs,  99 

3  Dev.  &  Batt.  117 
2  Strobli.  77    . 
12  Pick.  430 

<•  "         10  Nev.  106     . 

Peck,  165 
20  New  Hamp.  390 
8  Rich.  460 

"  "         31  Maine,  386 ;  2  Green's 

"  "         1  Murjjhy,  213       . 

"        53  Mo.  267 ;  2  Green's  Cr, 

"  "2  Ired.  402 

"  "         Cheves,  157     . 

"  "        3  Hawks,  378       . 

"  "         49  New  Hamp.  155     . 

"  "         1  Bail.  123 

"  "         Phil.  N.  C.  302 

*'  "        43  Vt.  324 

"  "         37  Mo.  58 

"  "         5  Harring.  490      . 

"  "         61  Maine,  386 

"  "         23  Vt.  74  . 

"  "         10  R.  I.  258    . 

«  "         18  New  Hamp.  91 

State  V.  Snell,  9  R.  I.  112;  1  Green's  Cr, 
State  V.  Snow,  18  Maine,  346 
State  V.  Snyder,  50  New  Hamp.  150  . 
State  V.  Somerville,  21  Maine,  14 

"  "  21  Maine,  20 

State  V.  Soper,  16  Maine,  293 
State  V.  Soragan,  40  Vt.  450    . 
State  V.  South,  4  Dutch.  28 
State  V.  Sowls,  Phil.  N.  C.  151 
State  V.  Spainhour,  2  Dev.  &  Batt.  547 
State  V.  Spalding,  19  Conn.  233 
State  V.  Sparks,  27  Texas,  627      . 

"  "27  Texas,  705 

State  V.  Sparrow,  3  Murphy,  487  . 
State  V.  Spear,  6  Mo.  644 
State  V.  Speight,  69  N.  C.  72 ;  1  Green's  C 
State  V.  Speirin,  1  Brev.  119 
State  V.  Spencer,  10  Humph.  431 

"  "1  Zabr.  197 

State  V.  Spenlove,  Riley,  269 
State  V.  Squires,  48  New  TIamj).  364 

"  "11  New  Hamp.  38 


.      False  pret.  184,  185;  Felony,  189; 
Indictment,  352. 

Forcible  entry  and  detainer,  194. 

Forgery  and  counterfeiting,  200. 

Forg.  and  counterf.  315;  Sent. 557. 
.      Gaming,  235,  238,  241. 

Homicide,  259. 
.      Homicide,  263,  277. 

Homicide,  298,  299. 

Homicide,  320. 

Indictment,  330. 

Indictment,  335. 

Indictment,  336. 
Cr.  R.  462.      Indictment,  338 ;  Peddlers,  496. 

Indictment,  351,  352. 
Reps.  507.       Insanity,  356,  359. 

Larceny,  406,  407. 

Malicious  michief,  430. 

Misdemeanor,  437. 

Nolle  prosequi,  465. 

Pardon,  494. 
.      Rape,  523. 

Rape,  531. 

Receiving  stolen  prop.  535,  536. 

Religious  meeting,  disturb,  of, 540. 

Spirituous  liquors,  sale  of,  572. 

Spirituous  liquors,  sale  of,  574. 

Unwholesome  provis.  sale  of,  632. 

Voting,  643. 
Reps.  533.         Embezzlement,  122. 

Riot,  542;  Verdict,  637. 

Larceny,  397. 

Larceny,  385.  402. 

New  trial,  464. 

Evid.  138  ;  Trial,  591 ;  Wit.  655. 

Complaint,  100. 

Larceny,  381. 

Trespass,  588. 

Nuisance,  471. 

Forgery  and  counterfeiting,  222. 

Duress,  118. 

Evidence,  155. 

New  trial,  455. 

Former  acquittal  or  convict.  223. 
r.  Reps.  363.     Evidence,  170;  Larceny,  415. 

Forcible  entry  and  detainer,  194. 

Former  acquittal  or  convict.  227. 
.      Insanity,  359 ;  Trial,  599. 

New  trial,  462. 

Evidence,  149. 

Larceny,  397. 


r94 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Stalcup,  1  Ired.  30     . 
State  V.  Staley,  14  Minn.  105 
State  V.  Stalker,  3  Ind.  570     . 
State  V.  Stallings,  3  Ind.  531 
State  V.  Stalmaker,  2  Brev.  1 

2  Brev.  44      . 
State  V.  Standifer,  5  Porter,  523 
State  V.  Stanley,  64  Maine,  157     . 

33  Iowa,  526 
State  V.  Staples,  45  Maine,  320    . 
"  "        47  New  Hcimp.  113 


State  V. 

Starr,  38  Mo.  270 

State  V. 

St.  Clair,  17  Iowa,  149 

State  V. 

Stebbins,  29  Conn.  463  . 

State  V. 

Stedman,  7  Porter,  495 

State  V. 

Steele,  3  Heisk.  135 

State  V. 

Stephens,  32  Texas,  155 

State  V. 

Stephenson,  2  Bail.  334 

u 

4  McCord,  165  . 

State  V. 

Sterling,  34  Iowa,  443 ;  1  Green's  Cr. 

568 

. 

State  V. 

Stevens,  30  Iowa,  391 

II 

36  New  Hauip.  59    . 

11 

"          62  Maine,  284 ;  2  Green's  Cr 

481      . 

II 

"         40  Maine,  559     . 

u 

47  Maine,  357 

11 

58  Maine,  548    . 

State  V. 

Stewart,  29  Mo.  419  . 

11 

9  Ired.  342 

II 

9  Nev.  120  . 

" 

6  Conn.  47 

State  V. 

Stiefle,  13  Iowa,  603 

State  T. 

Stillman,  7  Cold.  Tenn.  341 

State  V. 

Stinipson,  45  Maine,  608 

Reps. 


Reps. 


State  V.  Stimson,  4  Zabr.  478 
State  V.  Stinson,  17  Maine.  154 
State  V.  Stokely,  16  Minn.  282      . 
State  V.  Stokes,  Coxe,  392       . 
State  V.  Storkey,  63  N.  C.  7 
State  V.  Stotts,  5  Blackf.  460 
State  V.  Stouderman,  6  La.  An.  286 
State  V.  Stout,  6  Halst.  124  . 
State  V.  Stoyell,  54  Maine,  24       . 
State  V.  Strat,  1  Miirphey,  124 
State  V.  Stratton,  27  Iowa,  420     . 
State  V.  Straw,  33  Maine,  554 

42  New  Hamp.  393 
State  V.  Street,  1  Tayl.  158     . 
"  "       1  Murphey,  156     . 


Riot,  543. 

Evidence,  142. 

Indictment,  353. 

Indictment,  338. 

Forgery  and  counterfeiting,  215. 

Former  acquittal  or  convict'n,  228. 

Former  acquittal  or  conv.  223, 225. 

False  jjretenses,  177. 

Homicide,  230. 

Spirituous  liquors,  sale  of,  569. 

Witness,  656. 

Homicide,  256, 309. 

Receiving  stolen  property,  533. 

Evid.  159;  Indict.  336;  Trial,625. 

Assault  and  battery,  57. 

Profane  swearing,  517. 

Larceny,  387. 

Larceny,  384. 

Perjury,  499. 

Conspiracy,  107, 109. 
Conspiracy,  102, 105, 106. 
Indictment,  336. 

Larceny,  390,  397. 

Lasciviousness,  418. 

Spirituous  liquors,  sale  of,  578. 

Verdict,  637. 

Assault  and  battery,  52. 

Homicide,  269. 

Homicide,  319. 

New  trial,  464. 

Sentence,  556. 

Peijury,  503. 

Larceny,    397 ;     Receiving   stolen 

property,  536. 
Officer,  489. 

Spirituous  liquors,  sale  of,  571. 
Jury,  369. 

Forcible  entry  and  detainer,  194. 
Rape,  520,521. 
Extortion,  172. 
Officer,  488. 

Bail  and  recognizance,  67. 
Abduction,  2. 
Perjury,  498. 

Forgery  and  counterfeiting,  196. 
Bill  of  excep.  81 ;  Riot,  543. 
Conspiracy,  102,  105 ;  Indict.  346. 
Indictment,  334. 
Peijurj^,  501. 


TABLE   OF   CASES. 


795 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  T. 

State  V. 

State  V. 

State  V. 

State  V, 

State  V. 
li 

State  V. 
State  V. 


State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

u 

State  V. 
State  V. 
State  V. 
State  V. 
State  V. 

State  V. 
State  V. 
State  V. 


State  V. 

u 

State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


Strickland,  2  Nott  &  McCord,  181    . 

Stroll,  1  Rich.  244 

Stroope,  20  Ark.  202 

Stuart,  23  Maine,  111      . 

Stucky,  2  Blackf.  389  .  . 

Sturdivant,  21  IVFaine,  9 

Stiitz,  20  Iowa,  488     . 

Suhur,  33  Maine,  539 

Sullivant,  3  Yerg.  281 

Summers,  9  Nev.  269 

Sumner,  5  Strobh.  53 

"  2  Carter,  377  . 
Sutherland,  30  Iowa,  570 
Sutton,  10  R.I.  159;  2  Green's  Cr.  Reps 

"       1  Murphey,  281 

"       3  Gill,  194  ..  . 

Swails,  8  Ired.  524      . 
Sweetsir,  53  Maine,  438  , 
Swift,  14  La,  An.  827 
Swiuk,  2  Dev.  &  Batt.  9 
Sykes,  28  Conn.  225 
Symonds,  36  Maine,  128 

"  57  Maine,  148        . 

Ta-Cha-Na-Tah,  64  N.  C.  014       . 
Tackett,  1  Hawks,  210 
Taggart,  38  Maine,  298   . 
Tally,  23  La.  An.  677 
Tappan,  1  Foster,  56 

"         15  New  Harap.  91 
Tarr,  28  Iowa,  397 
Taunt,  16  Minn.  109 
Taylor,  45  Maine,  322      . 

3  Brev.  243 ;  1  Const.  R.  106 

"       1  Root,  226 

"       2  Dutch.  117  ,         *  . 

1  Hawks,  462      . 

"       29  Ind.  517 

"       3  Sneed,  662 
3  Oregon,  10 
Temple,  38  Vt.  37 

"         12  Maine,  214 
Teidman,  4  Strobh.  300 
Terrell,  12  Rich.  321 
Terry,  4  Dev.  &  Batt.  152 
Thacher,  35  N.  J.  445 ;  1  Green's  Cr.  R. 
Thayer,  4  Strobh.  286     . 
Thibcau,  30  Vt.  100 
Thomas,  5  Ired.  366 
Thomason,  17  K  C.  14S 
Thompson,  20  New  Hamp.  250 
4  Ired.  484 


Dueling.  117. 

False  pretenses,  1"3. 

Evidence.  157. 

Indictment,  351. 

Spirituous  liquors,  sale  of,  571. 

Nuisance,  477. 

Spirituous  liquors,  sale  of,  577. 

Bail  and  recognizance,  67. 

Bail  and  recognizance,  65. 

Sentence,  558. 
.       Affray,  17. 

Malicious  mischief,  430. 

Seduction,  553. 
,370.    Homicide,  311. 
,     Indictment,  329. 

Verdict,  640. 
.     Assault  and  battery,  48. 

Bigamy.  78. 

Homicide,  315. 

Homicide,  281. 
.      Lottery,  427. 

Abatement,  1 ;  Indictment,  326. 
.      Voting,  643,  644. 

Homicide,  314 ;  Witness,  651. 

Homicide,  255,  309. 

Indictment,  327,  351. 
.       Verdict,  638. 

Perjury,  511. 

Usury,  633. 

Rape,  522. 

Larceny,  390. 

Arson,  26,  29. 

Dueling,  116,  117. 

Information,  354. 

Larceny,  388. 

New  trial,  442. 

Nuisance,  469. 

Concealed  weapons,  101. 

Witness,  655. 

Incest,  324. 

Indictriient,  345. 

Receiving  stolen  property,  533. 
.      Evidence,  160 ;  Homicide,  287,296. 

Rape,  521. 
62.       False  pretenses,  175,  176. 

Indictment,  332. 

Conspiracy,  109;  Indictment,  330. 

Bastardy,  73. 

Larceny,  390. 

Assault  «fe  batt.  37  ;  Complaint.  100. 
.      Bastardy,  73. 


796 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  v.  Thompson,  R.  M.  Charlt.  80  . 
"  "  19  Iowa,  299 . 

"  31  Iowa,  393 

"  "  1  Jones,  274  , 

''  "  9  Iowa,  188 

"  "  Cheves,  31     . 

"  "  2  Strobh.  12 

"  "  3  Hawks,  613 

State  V.  Thornburgli,  6  Ired.  79 
State  V.  Thornton,  13  Ired.  256     . 

"  "  Busbee,252 

State  V.  Thurstin,  35  Maine,  205  . 
State  V.  Thurston,  2  McMullan,  382     . 
State  V.  Tidwell,  5  Strobh.  1 
State  T.  Tiernans,  4  Gratt.  545 
State  V.  Tilghman,  11  Ired.  513    . 
State  y.  Tilletson,  7  Jones,  114 
State  V.  Tilly,  3  Ired.  424 
State  V.  Timmens,  4  Minn.  325 
State  V.  Tindall,  10  Rich.  212       . 
State  V.  Toadvine,  1  Brev.  16 
State  V.  Toliver,  5  Ired.  452 
State  V.  Tom,  2  Dev.  509 
State  V.  Tomlin,  5  Dutch.  13 
State  V.  Tomlinson,  11  Iowa,  401 
State  V.  Toole,  29  Conn.  342 
State  V.  Tooley,  1  Head,  9 
State  V.  Towle,  42  New  Ham  p.  540 
State  V.  Town,  Wright,  75      . 
State  V.  Town  of  Leicester,  33  Vt.  653 
State  V.  Townsend,  5  Harring.  487     . 

"  "  2  Harring.  543 

State  V.  Tozier,  49  Maine,  404 
State  V.  Trammell,  2  Ired.  379      . 
State  V.  Trapp,  14  Rich.  203 
State  Treasurer  v.  Rice,  11  Vt.  339 
State  V.  Trott,  2  Harr.  561      . 
vState  V.  Tryon,  39  Conn.  183 
State  V.  Tucker,  20  Iowa,  508 
State  V.  Taller,  34  Conn.  280 
State  V.  Turner,  Wright,  20     . 
"  "         65  N.  C.  592 

"  "         6  La.  An.  309 

19  Iowa,  144 
State  V.  Tweed,  3  Dutch.  Ill 
State  V.  Tweedy,  11  Iowa,  350      . 
State  V.  Twiity,  2  Hawks,  449 

2  Hawks,  248       . 
"  "4  Hawks,  193 

State  V.  Underwood,  6  Ired.  96     . 


Burglary,  87. 

Forgery  and  counterfeiting,  196. 

Homicide,  269. 

Homicide,  292. 

Homicide,  317,  320. 

Indictment,  350. 

Misd.  438;  Nuis.  474;  Sent.  557. 

Nolle  prosequi,  466. 

Forgery  and  counterfeiting,  202. 

Nolle  prosequi,  467. 

Nuisance,  475. 

Adultery,  13. 

Larceny,  386,  397. 

Abduction,  3. 

Gaming,  244. 

Hom.  294,  295;  New  tr.  451,  454. 

Trial,  629. 

Homicide,  274,  286,  298. 

Seduction,  551,  552. 

Trial,  626. 

Forgery  and  counterfeiting,  211. 

Forcible  trespass,  195. 

Conspiracy,  107. 

False  pretenses,  177. 

Rape,  530. 

Arson,  28. 

Bail  and  recognizance,  60. 

Contempt,  111. 

Homicide,  300. 

Nuisance,  473. 

Arrest,  22. 

Former  acquittal  or  convict.  229. 

Evidence,  151. 

Conspiracy,  108. 

Malicious  trespass,  434,  435. 

Bail  and  recognizance,  59. 

Larceny,  399. 

Statutes,  581. 

Indictment,  353, 

Embezzlem't,  122;  Jurisdic'n,  367. 

Homicide,  263,  274,  277,  301,  306. 

Larceny,  406. 

New  trial,  443. 

Receiving  stolen  property,  533. 

Voting,  643. 

Homicide,  297;  Verdict,  640. 

Forgery  and  counterfeiting,  196. 

Forgery  and  counterfeiting,  221. 

Pardon,  493. 

New  trial,  443,  458. 


TABLE   OF   CASES. 


797 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V. 


State  V. 

State  V. 

State  V. 

State  V. 

u 

state  V. 

State  V. 

State  V. 

State  V. 

(t 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

State  V. 

30 

State  V. 

State  V. 

State  V. 

State  V. 

State  Y. 


State  V. 

u 

State  V. 
State  V. 
State  V. 
State  V. 
State  V, 


Uuderwood,  57  Mo.  40 

"  49  Maine,  181 

Upchurch,  9  Ired.  454 
Updike,  4  Harring.  581    . 
Upham,  38  Maine,  261 
Upton,  1  Dev.  268 

"       20  Mo.  397      . 
Vaigneur,  5  Eich.  391 
Valentine,  7  Ired.  225 
Vance,  17  Iowa,  138 
Van  Houten,  37  Mo.  357        . 

"  Penning.  672  (2d  ed.  495) 

Vanloan,  8  Ind.  182  ... 

Van  Matre,  49  Mo.  268    . 
Vannoy,  65  N.  C.  532 
Vaughan,  1  Bay,  282        . 

"         29  Iowa,  286  . 

Vawter,  7  Blackf.  592     . 
Verrill,  54  Maine,  408  ..  . 

Vickery,  19  Texas,  326     . 
Vill,  2  Brev.  262         . 
Vincent,  24  Iowa,  570 
Vitturn,  9  New  Hamp.  519    . 
Vowels,  4  Oregon,  324 
Vridely,  4  Humph.  429  . 

Vt.  Cent.  R.  R.  Co.  27  Vt.  103;    28  lb.  583; 

lb.  108 

Wade,  34  New  Hamp.  495     .  .     •        . 

Wagner,  61  Maine,  178    . 

Walcott,  21  Conn,  272 
Walker,  34  Vt.  296  . 

32  Maine,  195 
10  Ired.  234         . 
"       14  Mo.  398    . 

22  La.  An.  425    . 
"       16  Maine,  241  ..  . 

3  Harring.  597  . 
"       26  Ind.  346  ... 

Wall,  15  Mo.  208  ... 

"       9  Yerg.  347       . 
"       34  Me.  165 
Wallace,  9  N.  Hamp.  515       . 

"         3  Ired.  195         . 
Walters,  15  La.  An.  648         . 
Waltliam,  48  Mo.  55        . 
Walton,  62  Maine,  106;  2  Green's  Cr.  R.  465. 
Wamire,  16  Ind.  357 
,  Ward,  63  Maine,  225 
"       39  Vt.  225        . 


Homicide,  258,  320. 

Larceny,  385. 

Sentence,  559. 

New  trial,  442. 

Evidence,  151. 

New  trial,  441. 

New  trial,  455. 

Evidence,  141,  144,  148. 

Witness,  652. 

Homicide,  259,  310. 

Abortion,  4. 

Forgery  and  counterfeiting,  221. 

Affray,  17. 

Trial,  604. 

Assault  and  battery,  32. 

False  pretenses,  179. 

Trial,  629. 

Abortion,  4. 

Homicide,  266. 

False  pretenses,  175. 

Indictment,  343. 

Evidence,  170;  Horn. 271,  289,302. 

Adultery,  15. 

Mayhem,  436. 

Affray,  17. 

Nuisance,  472,  477,  481. 
Indictment,  344. 

Homicide,    265,   278,   281;    Juris- 
diction, 365. 
Evidence,  158,  159. 
Evidence,  145. 
Conspiracy,  108. 
Forcible  trespass,  195. 
Indictment,  335. 
Larceny,  392. 

Spirituous  liquors,  sale  of,  566. 
Spirituous  liquors,  sale  of,  571. 
Trial,  628. 
Indictment,  353. 
Perjury,  496,  500,  503. 
Spirituous  liquors,  sale  of,  573. 
Adultery,  12,  15. 
Verdict,  641. 
Verdict,  641. 
Trial,  612. 

Embezzlement,  122;  Officer,  489. 
Trial,  628. 
Abatement,  2. 
Evidence,  134. 


r98 


TABLE   OF   CASES. 


Title  of  Case  and  Report, 


Subject  and  Page. 


State  V. 

Ware,  10  Ala.  814 

State  V 

Warner,  14  Ind.  572 

25  Iowa,  200      . 

state  V 

Warren,  33  Maine,  30 

State  V 

Washington,  15  Rich.  39 

State  V. 

Waterhouse,  1  Mart.  &  Yerg. 

278      . 

State  V. 

Waterman,  1  Nov.  132     . 
INev.  543 

State  V. 

Waters,  39  Maine,  54 
3Brev.  507 

, 

State  V. 

Watkins,  27  Iowa,  415     . 
9  Conn.  47 

State  V. 

Watson,  63  Maine,  128     . 
"        2  Const.  R.  669 

u 

41  N.  Hamp.  533 

(( 

3  R.  I.  114    . 

state  V. 

Watts,  10  Ired.  369 

State  V. 

Weare,  38  N.  Hamp.  314      . 

State  V. 

Weatherby,  43  Maine,  258 

State  V. 

Weaver,  18  Ala.  293  . 

(( 

13  Ired.  491 

State  V, 

State  V. 
State  V. 

u 

State  V, 
State  V 
State  V, 
State  V. 


State  V. 
State  V. 
State  V. 


Webb,  26  Iowa,  262 

"        25  Iowa,  235    . 
Weber,  22  Mo.  322 
Webster,  39  N.  Hamp.  96      . 

17N.  Hamp.  543 
Wedemeyer,  11  La.  An.  49    . 
Weekly,  29  Ind.  206 
Weeks,  30  Maine,  182 
Welch,  26  Maine,  30 

"       7  Port.  453       . 

"       37  Wis.  196 
Wellman,  3  Ohio,  14  . 
Wells,  31  Conn.  210 
Wentworth,  37  N.  Hamp.  196 


"  "  35  N.  Hamp.  442      . 

State  V.  West,  6  Jones,  505      .  .  .  , 

State  V.  Westlield,  1  Bail.  132       . 
State  V.  Weston,  9  Conn.  527  . 

State  V.  Wheeler,  19  Minn.  98;  1  Green's  Cr.  R.  541. 
35Vt.  261 
"  "  3  Vt.  344      . 

State  V.  Whit,  4  Jones,  349  ..  . 

State  V.  Whitby,  5  Hairing.  494         . 
State  V.  White,  7  La.  An.  531        . 
2  Tyler,  352  . 


Larceny,  382;  Trial,  617. 
Burglary,  95. 

Trial,  621. 

Arson,  24, 

Larceny,  402. 

Trial,  628. 

Homicide,  323. 

Witness,  651. 

Ass.  and  bat,  57 ;  Witness,  653, 

Forgery  &  counterfeiting,  199,  215, 

Homicide,  269. 

Homicide,  280,  302. 

Ars.  27,  30;    Evi,  169  ;  Verd.  640. 

Forgery  and  counterfeiting,  196. 

Larceny,  373. 

Receiving  stolen  property,  535. 

Verdict,  641. 

Information,  354, 

Adultery,  12, 

Bail  and  recognizance,  64 ;  Indict- 
ment, 349. 

Forgery  and  counterfeiting,   203; 
Trial,  628, 

False  pretenses,  180. 

Nuisance,  475. 

Trial,  592, 

Indictment,  351  ;  Verdict,  639. 

Malicious  mischief,  430, 

Evidence,  148. 

AfiFray,  17. 

Malicious  mischief,  432. 

Adultery,  15. 

Gaming,  237. 

Officer,  490. 

Bail  and  recognizance,  66. 

Rape,  529. 

Evidence,    144,  166;   Indict.  335; 
Malicious  mischief,  431,  433, 433. 

Spirituous  liquors,  sale  of,  571. 

Concealed  weapons,  101. 

Misdemeanor,  438. 

Larceny,  379,  406,408;  Receiving 
stolen  property,  534. 

Forgery  and  counterf'g,  200,  203. 

Forgery  and  counterf'g,  305,  214. 

Malicious  mis.  429 ;  Misdem'r,  440. 

Burglary,  89,  93. 

Trespass,  589. 

Indictment,  336. 

Larceny,  375. 


TABLE   OF   CASES. 


799 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  White,  G  Ired.  418     . 
"  "7  Ired.  180 

"  "         25  Wis.  369    . 

State  V.  Whitfield,  70  N.  C.  35G    . 
8  Ired.  315 

State  V.  Whitman,  14  Rich.  113    . 

State  V.  Whitson,  8  Blaokf.  178 

State  V.  Whittemore,  50  N.  Hamp.  245 

State  V.  Whitten,  1  Hill,  S.  C.  100      . 

State  V.  Whittier,  21  Maine,  341  . 


State 

V. 

Wholeham,  22  Iowa,  297       . 

State 

V. 

Wicks, 

R.  M.  Charlt.  139 

State 

V. 

Widenhouse,  71  N.  C.  279     . 

State 

V. 

Wiggin 

,  20  K  Hamp.  449 

State 

V. 

Wilber, 

1  R.  I.  199     . 

State 

V. 

Wilburn,  2  Brev.  296       . 

State 

V. 

Wilcox 

3  Brev.  96     . 

(( 

u 

3  Yerg.  278        . 

State 

V. 

Wiley,  4  Dev.  &  Batt.  192     . 

State 

V. 

Wilkerson,  72  N.  C.  376 

State 

V. 

Wilkin 

?,  17  Vt.  151  . 

State 

V. 

Williams,  27  Vt.  755        . 

u 

u 

65  K  C.  398          . 

(( 

ii 

3  Foster,  321  . 

1( 

u 

20  Iowa,  98            .             .             . 

(( 

(I 

2  Term,  108    . 

(( 

(I 

2  Jones,  257           . 

(( 

it 

54  Mo.  170       . 

u 

a 

27  Vt.  724              ... 

u 

a 

2  Rich.  418      . 

u 

(1 

36  Texas,  352         . 

a 

7  Jones,  446     . 

67  N.  C.  12 

i( 

(( 

2  McCord,  201 

u 
u 

a 

30  Maine,  484        . 
1  Rich.  188     . 

u 

u 

35  Mo.  229 

ti 

ii 

2  Strobh.  239 

u 
u 

9  Ired.  140              .             .             . 
2  Jones,  194     . 

11 

li 

1  Vroom  (30  N.  J.)  102     . 

(. 

u 

30  Mo.  364       . 

a 

u 

8  Hill,  S.  C.  91   ^ 

(I 

a 

4  Ired.  400 

u 

u 

3  Stew.  454 ;  65  N.  C.  5C5 

"  "  4 Ind. 234 

State  V.  Williamson,  16  Mo.  394 
State  V.  Willis,  7  Jones,  190 


Libel,  422. 

Libel,  425. 

Verdict,  638. 

Evidence,  145. 

Forcible  entry  and  detainer,  193. 

New  trial,  462. 

Bail  and  recognizance,  70. 

Perjury,  499,  507. 

Forgery  and  counterfeiting,  212. 

Indictment,  342;  Malicious  tres- 
pass, 435;  Witness,  647. 

Malicious  mischief,  433. 

Bail  and  recognizance,  62. 

Trespass,  588. 

Spirituous  liq.  sale  of,  567,  575. 

Indictment,  347 ;  Stats.  581,  582. 

Assault  and  battery,  39. 

Larceny,  383. 

Malicious  mischief,  430. 

Forcible   trespass,  195. 

Larceny,   372. 

Forgery  and  counterfeiting,  199. 

Assault  and  battery,  36. 

Assault  and  battery,  44. 

Assault  and  battery,  51. 

Bigamy,  80. 

Eavesdropping,  118. 

Evidence,  130. 

Evidence,  152;  Larceny,  406. 

Forgery  and  counterfeiting,  218; 
New  trial,  457. 

Forgery  and  counterfeiting,  219. 

Homicide,  265. 

Homicide,  270. 

Homicide,  293,  294. 

Indictment,  329. 

Jury,  369 ;  Misdemeanor,  439. 

Jury,  371. 

Larceny,  378. 

Larceny,  393. 

Larceny,  406. 

Larceny,  409. 

Nuisance,  474. 

Perjury,  513. 

Spirituous  liquors,  .sale  of,  573. 

Sunday,  58-3. 

Trial,  610,613;  Venue,  change  of, 
635. 

Usury,  633, 

Assau*  and  battery,  55. 

Burghiry,  86. 


800 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V.  Willis,  G;3  X.  C.  26     . 
State  V.  Wilson,  22  Iowa,  364      . 

"         2  Vroom  (30  N.  J.)  77 
"         Phil.  N.  C.  237  . 

Coxe,  439,  441 
"         1  Hayvv.  243 
SO  Conn.  500 


"         2  Const.  R.  135 
38  Conn.  126 

"         11  La.  An.  163  . 

"         47  New  Hamp.  101  . 

"         3  Brev.  196 
23  La.  An.  558 

"         3  Mo.  125 

"         1  Ired.  32     . 

"         43  New  Hamp.  415 

"         50  Ind.  487  . 
Wimberly,  3  McCord,  190 
Wimple,  8  Blackf.  214 
Windsor,  5  Harring.  512 
Wing,  32  Maine,  581 
Wisdom,  8  Port.  511        . 
Wise,  7  Rich.  412       . 
Wishon,  15  Mo.  503 
Witham,  47  Maine,  165 
WolflF,  15  Mo.  168 
Wood,  1  Bay,  351      . 

"       53  N.  Hamp.  484  ;  2  Green's  Cr.  R 


State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 
State  V. 


State  V. 
State  V. 
State  V. 
State  V. 

u 

state  V. 
State  V. 
State  V. 
State  V. 


State  V. 
State  V. 
State  V. 


340. 


"       17  Iowa,  18 

"       3  Zabr.  560      . 
Wooderd,  20  Iowa,  541 
Woodman,  3  Hawks,  384 
Woodson,  5  Humph.  55  . 
Woodward,  34  Me.  293 

"  50  New  Hamp.  527 

AYoody,  2  Jones,  335 
Worley,  11  Tred.  243      . 
Worthing,  31  Maine,  62 
Wright,  53  Maine,  328    . 

"         3  Brev.  431 

''         6  Jones,  25 
Wyatt,  6  La.  An.  701 
Wyckoff,  2  Vroom,  65     . 
Yancy,  1  Const.  Ct.  241 

1  Car.  L.  Rep.  519 


"  "       3  Brev.  143    . 

State  V.  Yarborough,  1  Hawks,  78 
"  "  19  Texas,  161 


Homicide,  300. 

Adultery,  14. 

Adultery,  77. 

Assault  and  battery,  35. 

Burglary,  85,  86,  92 ;    Larc'y,  372. 

Burglary,  88. 

Conspiracy,   104;    Evidence,  137  ; 

Indict.  337;  Larceny,  376. 
False  pretenses,  183. 
Habeas  corpus,  249;  Trial,  601. 
Indictment,  332. 
Larceny,  380. 
Larceny,  382,  390. 
Homicide,  296. 
Malicious  tresj^ass,  434. 
Riot,  544,  545. 
Statutes,  582. 
Trial,  628. 

Homicide,  312;  Indictment,  346. 
Assault  and  battery,  41. 
Evidence,  101. 
Bill  of  exceptions,  82. 
Evidence,  134;  Larceny,  872. 
New  trial,  462. 
Indictment,  353. 

Forgery  and  counterfeiting,  208. 
Larceny,  406,  412;  Trial,  610. 
Assault  and  battery,  39. 
Evidence,  160;  Grand  jury,  248; 

Indictment,  336  ;    Witness,  653. 
Perjury,  511. 
Writ  of  error,  663. 
Forgery  and  counterfeiting,  196. 
Indictment,  334. 
False  pretenses,  181. 
Spirituous  liquors,  sale  of,  576. 
Trespass,  589. 
Affray,  17. 
Wan-ant,  647. 
Witness,  652. 

Grand  jury,  246 ;    Verd.  637,  640. 
New  trial,  443. 
Nuisance,  468. 
Bail  and  recognizance,  67. . 
Jurisdiction,  365. 
Accessory,  10. 
Assault  and  battery,  42 ;    Former 

acquittal  or  conviction,  230. 
Homicide,  305. 
Homicide,  308. 
Religious  meeting,  disturb,  of,  541. 


TABLE   OF   CASES. 


801 


Title  of  Case  and  Report. 


Subject  and  Page. 


State  V. 
State  V. 
State  V. 
State  V. 


State  V. 


State  V. 
State  V. 


Yarborougli,  70  N.  C.  350 

Yarrell,  13  lied.  130 

Yeaton,  53  Maine,  135     . 

York,  37  New  Hamp.  175     . 
"       5  Harring.  493      . 
"       70  N.  C.  66     . 

Young,  56  Maine,  219     . 
"        8  Vroom  (36  N.  J.)  184 
"        46  New  Hamp.  266 
"        47  New  Hamp.  403  . 
"        18  New  Hamp.  543 
"        39  New  Hamp.  283 

Zachai7,  Busbee,  N.  C.  452 

Zellers,  2  Halst.  330  . 


State  V.  Zale,  5  Halst.  348     . 
State  V.  Zulich,  6  Dutch.  409 
Staten  v.  State,  30  Miss.  619  . 
Staup  V.  Com.  74  Penn.  St.  458 
Steele  v.  People,  45  Dl.  153     . 
Steele  v.  State,  4  Ind.  561 
Steerman  v.  State,  19  Mo.  503 
Stegar  v.  State,  39  Ga.  583 
Stein  V.  State,  37  Ala.  133       . 
Steinston  v.  State,  6  Yerg.  531 
Stephen  v.  State,  11  Ga.  335  . 


"  "     40  Ala.  67 

Stephen's  Case,  3  Leigh,  759  . 
Stephens  v.  People,  4  Parker,  396 ;  19  N.  Y.  549 


Stephens  v.  State,  14  Ohio,  886 

"  "       47  Ala.  696      . 

Stevens'  Case,  4  Leigh,  683     . 
Stevens  v.  Cora.  4  Mete.  360         .  .  . 

Stevens  v.  People,  67111.  587  . 

"  "        1  Hill,  361       . 

Stevens  v.  State,  31  Ind.  485  . 

"  "      44  Ind.  469 ;  3  Green's  Cr.  R.  717. 

"  "      3  Ark.  66  .  .  . 

"  "1  Swan,  157 

Stewart  v.  Com.  4  Serg.  &  Rawle,  194     . 
Stewart  v.  State,  26  Ala.  44   . 

"  "5  Ohio,  241        . 

"  "33  Ohio,  N.  S.  477;  1  Green's  Cr, 

Reps.  537 

"  "      18  Ohio,  .302      . 

"      1  Ohio,  N.  S.  60      . 
"  "      8  Eng.  720  . 

51 


Trespass,  588. 

Nuisance,  474. 

Assault  and  battery,  34. 

Evidence,  144. 

Larceny,  381. 

Riot,  543. 

Bail  and  recognizance,  66,  67. 

Conspiracy,  103,  105. 

Forgery  and  counterfeiting,  198. 

Forgery  and  counterfeiting,  301. 

Pound  breach,  516. 

Witness,  649. 

Indictment,  337. 

Evidence,  134;  Homicide,  354,376, 

379,  305  ;  Trial,  594. 
Indictment,  330. 
Jurisdiction,  367. 
Homicide,  333. 
Trial,  599. 

Forgery  and  counterfeiting,  231. 
Bail  and  recognizance,  60. 
Trial,  590. 
Robbery,  547. 
Nuisance,  480,  484. 
Perjury,  501. 
Evidence,  143,   149;    Indict.  340; 

Rape,530,533,538,533 ;  Trial,  606. 
Statutes,  581. 
Nuisance,  477. 
Evidence,129, 167,  168;  Homicide, 

273,279,283,  300 ;  New  trial,  455 ; 

Trial,  608,  610  ;  Wit.  653,  654. 
Evidence,  127. 
Trial,  604,  619. 
Arson,  25. 
Sentence,  556,  558. 
Gaming,  237. 
Larceny,  396. 
Insanity,  355. 
Larceny,  403. 
New  trial,  463. 
Peijury,  498. 
Larceny,   38S. 
Assault  and  battery,  54. 
Assault  and  battery,  57. 

Evidence,  151  ;  Perjury,  501 ;  Sub- 
ornation of  perjury,  514. 
Homicide,  286. 
Homicide,  315. 
Trial,  595,  602. 


802 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Stiff,  Ex  parte,  .18  Ala.  464      . 
Stinson  v.  People,  43  111.  397 
Stipp  V.  State,  11  Ind.  63 
Stocking  V.  State,  7  Ind.  336 
Stockton  V.  State,  35  Texas,  773 
Stofer  V.  State,  8  West  Va.  689     . 
Stoffer  V.  State,  lo  Ohio,  N.  S.  47 
Stokes  V.  People,  53  N.  Y.  164      . 


Stone  V.  Nat.  Ins.  Co.  19  Pick.  84      . 
Stone  V.  People,  3  Scam.  336 
Stone  V.  State,  30  Ind.  115     . 
'♦  "      1  Spencer,  401      . 

"  "      8  Heisk.  457;  1  Green 

"  "1  Spencer,  404 

"  "      4  Humph.  37 

Stoneman  v.  Com.  35  Gratt.  887 
Stoner  v.  State,  4  Mo.  614 
Stoops  V.  Com.  7  Serg.  &  Eawle,  491 
Stouffer  V.  Latshaw,  3  Watts,  165 
Stoughton  V.  State,  3  Ohio,  563 
Stout  V.  People,  4  Parker,  71,  133 
Stover  V.  People,  56  N.  Y.  315 
Strang  v.  People,  34  Mich.  1 
Stratton  y.  Cora.  10  Mete.  317 
Stratton  v.  State,  8  Eug.  688 
Straughan  v.  State,  16  Ark.  37 
Strawhern  v.  State,  37  Miss.  433 
Strawn  y.  State,  14  Ark.  549 
Strohm  y.  TJ.  S,  Taney  C.  C.  413 
Strong  v.'Grannis,  36  B:\rb.  133 
Strong  y.  State,  1  Blackf.  198 
Stroup'9  Case,  1  Rob.  754 
Studdard  y.  Linville,  3  Hawks,  474 
Studstill  y.  State,  7  Ga.  3 
Stupp,  In  re,  13  Blatchf.  501 ;  3  Green' 
St.  Valerie  y.  People,  64  Barb.  436     . 
Sullivan  v.  People,  31  Mich.  1 

'■  ''        1  Parker,  347 

Sullivan  v.  State,  5  Stew.  &  Port.  175 
Sullivant  v.  State,  3  Eng.  409 
Summerfield's  Case,  3  Rob.  767 
Sumner  v.  Com.  8  Cush.  531 
Sumner  v.  People,  39  N.  Y.  337 
Sumner  y.  State,  5  Blackf.  579 
Sumpter  v.  State,  11  Fla.  347 
Sutcliffe  V.  State,  18  Ohio,  469 
Sutton  V.  State,  9  Ohio,  133 
Swaggerty  v.  State,  9  Yerg.  338 
Swails  y.  State,  7  Blackf.  334 


tail  and  recognizance,  60. 

Larceny,  373,  386,  387,  396. 

Homicide,  361. 

Evid.  158;  Homi.  270;  Verd.  637. 

Assault  and  battery,  83. 

Perjuiy,  508. 

Evidence,  130;  Homicide,  330. 

Evid.  158;  Homi.  390,801  ;  Stats. 
580 ;  Trial,  599 ;  Witness,  657  ; 
Writ  of  error,  665. 

Barratry,  71. 

Homicide,  267  ;  Trial,  594. 

Evidence,  137. 

Forgery  and  counterfeiting,  315. 
s  Cr.  Reps.  520.    Malicious  mischief,  438. 

Misdemeanor,  438. 

New  trial,  448,  453, 454,  455,  456. 

Homicide,  319. 

Habeas  corp.  249 ;  New  trial,  443. 

Accessory,  10,  11. 

Arrest,  30. 

Forgery  and  counterfeiting,  314. 

Trial,  595  ;  Writ  of  error,  663. 

Evidence,  150,  154;  Larceny,  409. 

Rape,  518,  530,  525,526. 

Certiorari,  96. 

Religious  meeting,  disturb,  of, 541. 
.      Verdict,  640. 

Witness,  650. 

Indictment,  834. 

Slave  trade,  563. 
.       Arrest,  30;  Duress,  117. 

Peijury,  509. 

Larceny,  396. 

Perjury,  498. 

Homicide,  305;  Verdict,  643. 
s  Cr.  Reps.  183.     Fugitives  from  justice,  232,  234. 

Larceny,  878. 

Evidence,  154. 
.      Homicide,  256;  Writ  of  error,  663. 

Arson,  25. 

Rape,  53, 

Bail  and  recognizance,  63. 

Writ  of  error,  663. 

Usury,  683. 

Evidence,  129. 

Homicide,  357;  Witness,  649. 

New  trial,  465. 

Forg.  &  counterf.  308 ;  Jury,  370. 

Receiving  stolen  property,  535. 

Assault  and  battery,  43. 


TABLE   OF   CASES. 


803 


Title  of  Case  and  Report. 


Subject  and  Page. 


Swallow  V.  State,  23  Ala.  20 
"      20  Ala.  30 
Swan  V.  State,  4  Humph.  136 
Sweatman,  Matter  of,  1  Cow.  144 

S  weed  en  v.  State,  19  Ark.  205 
Sweet  V.  Sherman,  21  Vt.  23 
Sweet  V.  Stubbs,  33  .Maine,  481 
Swinney  v.  State,  8  Smed.  &  Marsh.  576 
Swisher  v.  Com.  26  Gratt.  963 
Sword  V.  Nestor,  3  Dana,  453 
Sword  V.  State,  5  Humph.  102 


Evidence,  129;  Trial,  615. 
Gaming,  236,  240;  Trial,  624. 
Homicide,  257,  275. 
Commitment,  98  ;  Judgment,  363 ; 

Sentence,  558. 
Assault  &  battery,  57 ;  Trial,  606. 
Bastardy,  74,  75. 
Bastardy,  74. 

Larceny,  414 ;  Verdict,  639. 
Homicide,  295. 
Bastardy,  72,  75. 
Sentence,  559,  560. 


T 


TaflF  V.  State,  39  Conn.  82       . 

Taflfe  V.  State,  23  Ark  34  .  .  . 

Tailor  v.  Taintor,  16  Wallace,  366 ;   2  Green's  Cr. 

Reps.  143  .... 

Taliaferro  v.  State,  40  Texas,  522 
Taner  v.  Allen,  Litt.  Sel.  Cas.  25 
Tanner  v.  Com.  14  Gratt.  635 
Tanner's  Case,  8  Leigh,  741 
Tarpley  v.  People,  42  111.  340 
Tarver  v.  State,  43  Ala.  374 
Tate  V.  State,  46  Ga.  148 

"  "      6  Blackf.  110 

"  "      5  Blackf.  174 

Tayloe,  Ex  parte ^  5  Cow.  39  . 
Taylor  v.  Com.  20  Gratt.  825 
"  "      2  Va.  Cas.  940 

"      1  Duvall,  Ky.  160 
Taylor  v.  Hughes,  3  Greenlf.  433 
Taylor  v.  People,  6  Parker,  347      . 
Taylor  v.  State,  22  Ala.  15      . 

"  "35  Texas,  97 

"  "      48  Ala.  180    . 

"  "42  Ala.  529 

"  "      4  Ga.  14 

".  "      6  Humph.  285      . 

"  "      50  Ga.  79       . 

"  "7  Blackf.  93 

Teachout  v.  People,  41  N.  Y.  7 
Tefft's  Case,  8  Leigh,  721 
Temple  v.  State,  40  Ala.  098  . 

"      40  Ala.  350 
Temple  v.  People,  4  Lans.  119 
Templeton  v.  People,  27  Mich.  501 

"  "         6  N.  Y.  Supm.  N.  S.  81 


Judgment,  363. 

New  trial,  458. 

Bail  and  recognizance,  70. 

Assault  and  battery,  54. 

Bastardy,  72. 

Larceny,  380. 

Gaming,  239. 

Assault  and  battery,  48. 

Assault  and  battery,  33,  53. 

Assault  and  battery,  35. 

Disinterring  the  dead,  115. 

Gaming,  246. 

Bail  and  recognizance,  59,  65. 

Evidence,  128;  Rape,   520,  521. 

Indictment,  329. 

Nuisance,  479. 

Bastardy,  75. 

Nuisance,  409,  481,  484,  486. 

Affray,  17. 

Homicide,  270. 

Homicide,  318. 

Larceny,  411 ;  Sentence,  555. 

Libel,  422;  New  trial,  464. 

Mali.  misc.  431 ;  Misdemeanor ,438. 

Rape,  528. 

Statutes,  580. 

Evidence,  136, 141 ;  nomicide,285. 

Misdemeanor,  438, 

Homicide,  206. 

Homicide,  278,  28» ;  Statutes,  581. 

Homicide,  276. 

Evidence,  155. 

Evidence,  102. 


804 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Tenuey  v.  State,  8  Smed.  &  Marsh.  104 

Terr,  of  Mont.  v.  Dreuuan,  1  Mont.  41;  1  Green's  C 

Eeps.  553  .... 

Terr,  of  Mont.  v.  McClin,  1  Mont.  394;  1  Green's  Cr 

Reps.  705  .... 

Terr,  of  Mont,  v.  Whitcomb,  1  Mont.  359 
Terrell  v.  State,  9  Ga.  58 
Territory  v.  Cutler,  McCahon's  Kansas,  152 
Territory  agst.  Freeman,  McCahon's  Kansas,  56 
Territory  v.  Reyburn,  McCahon's  Kansas,  134 
Tesh  V.  Com.  4  Dana,  523        . 
Thayer  v.  Overseers  of  the  Poor,  5  Hill,  443 
The  Antelope,  10  Wheat.  67 
The  Brig  Alexander,  8  Mason,  175 
The  Emily  and  The  Caroline,  9  Wheat.  381  . 
The  Josef  a  Segunda,  5  Wheat.  338 
The  Marianna  Flora,  11  Wheat.  1 
The  Merino,  9  Wheat.  402 
The  Ohio,  1  Newberry  Adm,  409 
The  Porpoise,  3  Curtis,  807 
The  Slavers,  2  Wall.  350,  375 
Thomas'  Case,  2  Rob.  795 
Thomas  v.  Com.  2  Va.  Cas.  479 
Thomas  v.  People,  34  N.  Y.  351    . 

"  "         59  111.  160;  2  Green's  Cr.  R.  551 

Thomas  v.  State,  5  How.  Miss.  20 
"  "       52  Ga.  509    . 

"  "        6  Mo.  457 

Thomasson  v.  State,  22  Ga.  499 
Thompson  v.  Com.  20  Gratt.  724 

"  "      2  Va.  Cas.  135     . 

"  "      8  Gratt.  637    . 

"  "      1  Mete.  Ky.  13     . 

Thompson  v.  People,  3  Parker,  437 
Thompson's  Case,  8  Gratt.  637 
Thompson  v.  State,  25  Ala.  41       . 

"  "      28  Ala.  13 

"  "      18Ind.  386    . 

"  "      9  Ohio,  N.  S.  354 ;  49  Ala.  16 

"  "      30  Ala.  38       . 

"  "      3  Parker,  208      . 

"  "      48  Ala.  165    . 

"  "      5  Humph.  138      . 

"  "      38  Ind.  39      . 

"  "      37  Texas,  131        .  .      . 

"      47  Ala.  37      . 
Thomson  v.  People,  34  111.  60 
Thornton  v.  Com.  34  Gratt.  657   . 


Rape,  535,  527. 
Assault  and  battery,  56. 

Evidence,  149. 

Adultery,  12,  13. 

Judgment,  363. 

Habeas  corpus,  249. 

Indictment,  328. 

Evidence,  130. 

Attorney,  58. 

Bastardy,  73. 

Slave  trade,  561,  563. 

Slave  trade,  562. 

Slave  trade,  563. 

Piracy,  516. 

Piracy,  516. 

Slave  trade,  563,  563. 

Slave  trade,  563. 

Slave  trade,  562. 

Slave  trade,  563,  565. 

Perjury,  506. 

New  trial,  453. 

False  pretenses,  186,  189. 

Lottery,  427. 

Burglary,  92 ;  Indictment,  329. 

New  trial,  459. 

Trial,  598. 

Larceny,  394. 

Evidence,  147. 

Larceny,  394. 

New  trial,  453,  456,  461;  Trial, 
613;  Verdict,  643. 

Witness,  651. 

Trial,  603. 

New  trial,  458, 

Assault  and  battery,  35,  43, 

Bigamy,  78. 

Burglary,  87. 

Forgery  and  counterfg,  305,  307. 

Forgery  and  counterfeiting,  317. 

Indictment,  335,  343 :  Writ  of  er- 
ror, 664. 

Larceny,  403. 

New  trial,  459 ;  Spirituous  liquors, 
sale  of,  568. 

Rape,  534. 

Trial,  608. 

Trial,  630. 

False  pretenses,  184, 

Homicide,  368,  303. 


TABLE   OF   CASES. 


805 


Title  of  Case  and  Report. 


Subject  and  Page. 


Thrasher  v.  State,  0  Bhickf.  460    . 
Thurston  et  al.  v.  Com.  3  Dana,  234 
Tibbals  v.  State,  5  Wis.  596 
Timms  v.  State,  4  Cold.  Tenn.  138 
Timsv.  State,  36  Ala.  165 
Tipper  v.  Com.  1  Mete.  Ky.  6 
Todd  V.  State,  31  lud.  514 
Toler  V.  State,  16  Ohio,  N.  S.  583 
Tolison  V.  State,  39  Ala.  103 
Tomlinson  v.  People,  5  Parker,  313 
Tompkins  v.  State,  17  Ga.  356 
"  "       33  Ala.  569 

Torrey  v.  Field,  10  Vt.  353 
Townsend  v.  People,  3  Scam.  326 
Townsend  v.  State,  3  Blackf.  151 
Towsey  v.  State,  8  Texas,  173  . 
Tracy,  Ex  parte,  35  Vt.  93 
Train  v.  State,  40  Ga.  539 
Treat  v.  Bent,  51  Maine,  478 
Trexler  v.  State,  19  Ala.  21      . 
Trimble  v.  State,  3  Greene,  404    . 
Troxdale  v.  State,  9  Humph.  411 
Truman,  In  re,  44  Mo.  181 
Tuberville  v.  State,  40  Ala.  715 

"     43  Ind.  490   . 
Tucker,  Case  of,  8  Mass.  386 
Tucker  v.  State,  35  Texas,  113     . 

"  "     34  Ala.  77    . 

Turk  V.  State,  7  Ohio,  340 
Turley  v.  State,  3  Humph.  323 
Turner  v.  Com.  3  Mete.  Ky.  619  . 
Turner  v.  State,  40  Ala.  31      . 

"     3Heisk.  453;  1  Green's  Cr.  R. 
Tumey  v.  State,  8  Smed.  &  Marsh.  104 
Turns  v.  Com.  6  Mete.  325 
Tuttle  V.  Com.  3  Gray,   505     . 
Tuttle  V.  People,   36  N.   Y.  431;  2  N.   Y.  Trans 

App.  306  .... 


Tweedy  v.  State,  5  Iowa,  433 ;  lb.  334 
Twitchell  v.  Com.  9  Barr,  311 
Tyler  v.  Greenlaw,  5  Rand.  711    . 
Tyler  v.  State,  3  Humph.  37    . 
Tyner  v.  State,  3  Humph.  383     . 
Tyra  v.  Com.  2  Mete.  Ky.  1     . 


of 


Gaming,  346. 

Bail  and  recognizance,  70. 

Officer,  491. 

Homicide,  370. 

Jury,  369. 

Bill  of  excep.  83;  Larceny,  413. 

False  pretenses,  186,  189. 

Evidence,  166. 

Bail  and  recognizance,  66. 

Forg.  and  count.  205;  Trial,    615. 

Assault  and  batt.  42 ;  Consp'y,104. 

Trial,  618. 

Indictment,  326. 

Forgery  and  counterfeiting,  305. 

Verdict,  637. 

Bail  and  recognizance,  64. 

Trial,  606. 

Larceny,  410. 

Forcible  entiy  and  detainer,  193. 

Assault  and  battery,  49. 

Trial,  602. 

New  trial,  445. 

Forgery  and  counterfeiting,  203. 

Assault  and  battery,  57. 

Larceny,  407. 

Grand  jury,  348. 

Adultery,  13. 

Sinrituous  liquors,  sale  of,  573. 

Indictment,  348;  Verdict,  640. 

Larceny,  388. 

Attorney,  58. 

Former  ac.  or  con.  231 ;  Stat.  580. 

Larceny,  400. 

Witness,  655. 

Grand  jury,  347;  Homicide,  365. 

Indictment,  342. 

Evidence,  130;  Jurisdiction,   364  ; 

Perjury,  499,  504. 
Homicide,  301,  330. 
False  pretenses,  179,  180. 
Bail  and  recognizance,  67. 
False  pretenses,  185. 
Evidence,  155. 
Trial,  603. 


u 


Udderzook  v.  Com.  76  Penn.  St.  340 
Ulil  V.  Com.  6  Gratt.  706 


Homicide,  371;  Trial,  635. 
Witness,  052,  659. 


80G 


TABLE   OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


rill  V.  People,  5  Parker,  410  . 

Ur.derwood  v.  People,  32  Mich.  1 

Underwood  v.  State,  35  Ala.  70 

Unger  v.  State,  42  Miss.  642  . 

Updegraph  v.  Com.  11  Serg.  &  Rawle,  394  . 

Upton  V.  State,  5  Iowa,  465 

U.  S.  T.  Anderson,  10  Blatclif.  226;  1  Green's  C 

Reps.  423     .         . 
U.  S.  T.  Andrews,  2  Paine,  451      . 
U.  S.  T.  Anthony,  11  BlatcLf.  200      . 
U.  S.  V.  Armstrong,  2  Curtis  C.  C.  446 
U.  S.  Y.  Arwo,  19  Wall.  486;  2  Green's  Crim.  R. 
U.  S.  V.  Eabcock,  4  McLean,  113 
U.S.  V.  Bachelder,  2  Gallis.  15     . 
U.  S.  V.  Baker,  5  Blatclif.  6 

"  "3  Benedict,  68      . 

U.  S.  V.  Bailey,  9  Peters,  238 
U.  S.  Y.  Barney,  2  Wheeler's  Crim.  Cas.  513 
U.  S.  Y.  Barton,  Gilpin,  439     . 
U.  S.  Y.  Battiste,  2  Sumner,  240 
U.  S.  Y.  Bejandio,  1  Wood  C.  C.  294  . 
U.  S.  Y.  Benner,  1  Bald.  239         . 
U.  S.  Y.  Bettilini,  1  Woods,  654 
U.  S.  Y.  Booth,  21  How.  U.  S.  506 
U.  S.  Y.  Bott,  11  Blatchf.  346;  2  Green's  Cr.  R. 
U.  S.  V.  Bowman,  2  Wash.  C.  C.  328 
U.  S.  Y.  Boyden,  Lowell,  266 
U.  S.  Y.  Brig  Malek  Adhel,  3  How.  U.  S.  210      . 
U.  S.  Y.  Britton,  2  Mason,  464 

U.  S.  Y.  Brown,  1  Sawyer,  531       . 
U.  S.  Y.  Burroughs,  3  i\IcLean,  405     . 

U.  S.  Y.  Caldwell,  8  Blatchf.  131 

U.  S,  Y.  Carr,  1  Woods,  480     , 

U.  S.  Y.  Chamberlain,  12  Blatchf.  390      . 

U.  S.  V.  Chittenden,  Hemp.  61 

U.  S.  Y.  Clark,  Crabbe,  584 

U.  S.  Y.  Collins,  1  Woods,  499 

U.  S.  Y.  Conner,  3  McLean,  573    . 

U.  S.  Y.  Cook,  17  Wallace,  168 

U.  S.  Y.  Coolidge,  2  Gallison,  304 

U.  S.  Y.  Coons,  1  Bond,  1        . 

U.  S.  y.  Cornell,  2  Mason,  91 

U.  S.  V.  Cottingham,  2  Blatchf.  470  . 

U.  S.  Y.  Craig,  4  Wash.  C.  C.  729 

U.  S.  Y.  Crane,  4  McLean,  817 

U.  S.  Y.  Crow,  1  Bond,  51 

U.  S.  Y.  Cruikshank,  1  Woods,  308  . 

U.  S.  Y.  Curtis,  4  Mason,  233 

U.  S.  V.  Daruaud,  3  Wallace,  Jr.  143 


Homicide,  316. 

Statutes,  579. 

Assault  and  battery,  43. 

Larceny,  392,  406. 

Blasphemy,  83,  84. 

EYidence,  158. 
rim. 

Boarding  vessel,  84. 

Indictment,  341. 
.      Statutes,  579  ;  Verdict,  638. 

Homicide,  274,  303. 
134.     Jurisdiction,  368. 
•     .      Perjury,  500,  505. 

Indictment,  337. 

Piracy,  516. 

Trial,  596. 

Perjury,  500. 

Innkeeper,  355. 

Perjury,  500. 

Slave  trade,  563,  563. 

Forgery  and  counterfeiting,  208. 

Arrest,  20. 

Revenue  law,  violation  of,  541. 

Habeas  cor^ius,  250. 
239.     Abortion,  7. 

Perjury,  503. 

New  trial,  453. 

Piracy,  515,  516. 

Evidence,  133 ;  Forgery  and  coun- 
terfeiting, 203,  211,  220. 

Witness,  656. 
.      Larceny,    393,    394,    395;   Indict- 
ment, 836. 

Bribery,  85. 

Homicide,  255;  Officer,  490. 

Evidence,  133,  156. 

Dueling,  117. 

Embezzlement,  131. 

Officer,  493. 

New  trial,  440. 

Indictment,  345. 

Indictment,  327;  Trial,  637. 

Perjury,  509,  511. 

Homicide,  263. 

Larceny,   383. 

Forgery  and  counterfeiting,  219. 

Accessory,  10. 

Larceny,  398,  406. 

Indictment,  342. 

Indictment,  328. 

Slave  trade,  563,  564. 


TABLE   OF   CASES. 


807 


Title  of  Case  and  Report. 


Subject  and  Page. 


U.  S.  V.  Davis,  5  Mason,  356 

"  "       6  Blatchf.  464 

U.  S.  V.  Demarclii,  5  Blatchf.  84    . 
U.  S.  V.  Devlin,  6  Blatchf.  71 
U.  S.  V.  Dickey,  1  Morris,  413      . 
U.  S.  V.  Dickinson,  2  McLean,  325 

"  "  Hemp.  1 

U.  S.  V.  Doebler,  1  Bald.  519 
U.  S.  V.  Donan,  11  Blatchf.  168;  2  Greeus  Cr.  R.  206 
U.  S.  V.  Douglass,  2  Blatchf.  207 
U.  S.  V.  Dow,  Campbell  C.  C.  34 
U.  S.  V.  Drew,  5  Mason,  28    . 
U.  8.  V.  Driscoll,  1  Low,  303 
U.  S.  V.  Durkee,  1  McAllister  C.  C.  193 
U.  S.  V.  Duval,  Gilpin,  356 
U.  S.  V.  Eddy,  1  Bis.  227 
U.  S.  V.  Farnham,  2  Blatchf.  528  . 
U.  S.  V.  Feely,  1  Brock.  255 
U.  S.  V.  Finlay,  1  Abb.  364 
U.  S.  V.  Fisler,  4  Bis.  59  . 

U.  S.  V.  Flanakin,  Hemp.  30 
U.  S.  V.  Fox,  Low,  199  . 

U.  S.  V.  Foye,  1  Curtis  C.  C.  364  . 
U.  S.  V.  Frank,  2  Biss.  263 
U.  S.  V.  Freeman,  4  Mason,  505    . 
U.  S.  V.  French,  1  Gall.  1 .       . 
U.  8.  V.  Fries,  3  Dall.  515 
U.  S.  V.  Frink,  4  Day,  471        . 
U.  8.  V.  Furlong,  2  Bis.  97 ;  1  Green's  Cr.  Reps.  440, 
U.  S.  V.  Gallagher,  2  Paine,  447 
U.  8.  V.  Gardiner,  10  Pet.  618 
U.  8.  V.  Gibert,  2  8umner,  19 

U.  S.  V.  Gillies,  3  Wheeler's  Cr.  Cas.  308 
U.  8.  V.  Gleason,  1  Woolw.  C.  C.  75;  lb.  123 
U.  8.  V.  Gooding,  12  Wheat.  460 
U.  8.  V.  Gordon,  5  Blatchf.  18       . 

U.  8.  V.  Grassin,  3  Wash.  C.  C.  65       . 

U.  8.  V.  Greathouse,  2*Sbb.  364    . 

U.  8.  V.  Hamilton,  3  Dallas,  17 

U.  8.  V.  Hand,  2  Wash.  C.  C.  435 

U.  8.  V.  Han  way,  2  Wallace,  Jr.  139  . 

U.  8.  V.  Harding,  1  Wallace,  Jr.  127 

U.  8.  V.  Hardman,  13  Peters,  170 

U.  8.  V.  Harries,  2  Bond,  311        . 

U.  8.  V.  Harris,  1  Abb.  110      . 

U.  8.  V.  Hart,  3  Wheeler's  Crim.  Cas.  304 

"     Pet.  C.  C.  390    . 
U.  8.  V.  Haskell,  4  Wash.  C.  C.  402 


Larceny,  382,  386. 

Trial,  606. 

Indictment,  337. 

Revenue  law,  violation  of,  541. 

Perjury,  499. 

Indict.  331,  339;  Wit.  652,  657. 

Rape,  520. 

Forgeiy  and  count.  217,  221. 

Indictment,  335. 

Evi.  129;  Homi.  200;  Juris.  368. 

Indictment,  333. 

Intox.  as  an  ex.  for  crime,  302. 

Larceny,  386. 

Larceny,  381. 

New  trial,  402. 

Letter,  421. 

Homicide,  312. 

Bail  and  recognizance,  69. 

Statutes,  580. 

Forgery  and  counterfeiting,  203. 

Trespass,  588. 

8pirituous  liquors,  sale  of,  570. 

Forg.  &  count.  215 ;  Larc.  893,  401. 

False  pretenses,  179. 

Homicide,  263. 

Bail  and  recognizance,  69. 

New  trial,  445. 

Continuance,  111. 

Evidtince,  157. 

Assault  and  battery,  41. 

Forgery  and  counterfeiting,  200. 

Indictment,   347;  New  trial,  440, 

455, 460 ;  Piracy,  51G ;  Trial,  591. 
Writ  of  error,  662. 
Homicide,  259 ;  Officer,  488. 
Misdem'r,  438 ;  Slave  trade,  564. 
Kidnapping,  372 ;  Sentence,  554 ; 

Slave  trade,  564. 
Vessel,  642. 
Treason,  587. 

Bail  and  recognizance,  00. 
Assault  and  battery,  32. 
Treason,  586.  588. 
New  trial,  442. 
Indictment,  348. 

Evidence,  159;  Misdemean.  438. 
Pardon,  493. 
Breach  of  the  peace,  84. 
Nuisance,  469. 
Former  accpiittal   or  conviction, 

224;  Trial,  611. 


808 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


S.  V.  Hawthorne,  1  Dillon  C.  C.  423 

S.  V.  Henry,  4  Wash.  C.  C.  428 

S.  V.  Hill,  1  Brock.  156       .... 

S.  V.  Hinman,  1  Bald.  293         . 
S.  V.  Hodges,  2  Wheeler's  Crim.  Cas,  477 
S.  V.  Holmes,  Wallace,  Jr.  1     . 
S.  V.  Horn,  5  Blatchf.  103  . . 

S.  V.  Hornibrook,  2  Dill..229;  1-Green's  Cr.  R.  328. 
S.  V.  Hortou's  Sureties,  3  Dillon,  94;  1  Green's  Cr. 
Reps.  ..... 

S.  V.  Howard,  3  Sumner,  12     . 

'  "  3  Wash.  C.  C.  340  . 

S.  V.Howell,  11  Wall.  4-32 

S.  V.  Hoxie,  I'Paine,  265     . 

S.  V.  Imbert,  4  Wash.  C.  C.  702 

S.  V.  Tmsancl,  1  Woods,  581 

S.  V.  Insurgents,  2  Dall.  335     . 

S.  V.  Jailer  of  Fayette  County,  2  Abb.  265 

S.  V.  Johns,  1  Wash.  C.  C.  363 

S.  y.  Jones,  3  Wash.  C.  C.  224 

'     ■        "       2  Wheeler's  Crim.  Cas.  451 

'  "       3  Wash.  C.  C.  228 

S.  V.  Keene,  1  McLean,  429       . 

S.  V.  Kenneally,  5  Bis.  123    ' 

S.  V.  Kennedy,  4  Wash.  C.  C.  91 

'  "3  McLean.  175 

V.  Kepler,  1  Baldw.  22  . 

V.  Klintock,  5  Wheat.  144 

V.  Kohnstamm,  5  Blatchf.  223 

V.  La  Coste,  2  Mason,  129 
S.  T.  Lancaster,  2  McLean,  431 
'  "4  Wash.  C.  C.  64  . 

S.  V.  Lee,  4  McLean,  103  ..  . 

S.  V.  Libby,  1  Woodb.  &  Minot,  221 
S.  V.  Magill,  1  Wash.  C.  C.  463 
S.  V.  Mason,  13  Blatchf.  497 
S.  V.  Maxon,  5  Blatchf.  360      . 
S.  V.  Mayer,  Deady,  127      . 
S.  V.  McAvoy,  4  Blatchf.  418     . 
S.  V.  McHenry,  6  Blatchf.  503 
S.  V.  McNeal,  1  Gallison,  387    . 
S.  V.  Merchant,  13  Wheat.  480 
S.  V.  Miller,  1  Sawyer,  701        . 
S.  V.  Miner,  11  Blatchf.  511 ;  3  Green's  Cr.  R.  246 
S.  V.  Mingo,  8  Curtis  C.  C.  1 
S.  V.  Mitchell,  1  Bald.  30G         . 
'  "3  Dall.  348   . 

S.  V.  Morgan,  1  Morris,  341       . 
S.  V.  Morris,  14  Pet.  464      . 

"       1  Curtis  C.  C.  33  . 
S.  V.  Morrow,  4  Wash.  C.  C.  733    . 


Witness,  650. 

Witness,  649. 

Indictment,  350,  351. 

Forgery  and  counterfeit.  213,  218. 

Treason,  586. 

Homicide,  323. 

Trial,  625;  Witness,  651. 

Gaming,  236. 

Bail  and  recognizance,  60,  65. 

Indictment,  348. 

Piracy,  515. 

Forgery  and  counterfeiting,  209. 

Treason,  587. 

Homicide,  312. 

Evidence,  137. 

Treason,  587. 

Habeas  corpus,  250 ;  Warrant,  647. 

Indictment,  345 ;  Vessel,  642. 

Accessory,  9;  Bail  and  recog.  61. 

Evidence,  151. 

Piracy,  515,  516. 

New  trial,  440. 

Forg.  and  count.  218;  Witn.  653. 

Slave  trade,  563. 

Witness,  648. 

Witness,  649. 

Piracy,  515. 

False  pretenses,  179. 

Slave  trade,  562. 

Misdemeanor,  438. 

Pardon,  495. 

Pardon,  494. 

Acces'y,  9;  Slave  trade,  562,  565. 

Homicide,  354. 

Forgery  and  counterfeiting,  213. 

Jurisdiction,  368. 

Perjury,  512. 

Indictment,  327. 

Trial,  610. ♦ 

Perjury,  503. 

Trial,  591. 

Information,  353. 

Former  acquittal  or  convic.  337. 

Homicide,  358,  373,  330. 

Forgery  and  count.  198,  300,  231. 

Treason,  587. 

Perjury,  506. 

Slave  trade,  562. 

Verdict,  638. 

Forgerv  and  counterfeit.  199,  217. 


TABLE   OF   CASES. 


809 


Title  of  Case  and  Report. 


Subject  and  Page. 


U.S. 
U.S. 
U.S. 
U.S. 
U.S. 
U.S. 
U.S. 
U.S. 
U.S. 
U.S. 
U.S. 
U.S. 
U.S. 
U.S. 

u.  s. 

U.S. 
U.S. 


U.S. 

U..S. 
U.  S. 
U.S. 
U.S. 

U.S. 

u.  s. 

U.S. 

U.S. 
U.S. 

u.  s. 
u.  s. 
u.  s. 

U.S. 

U.S. 
U.S. 

u.-s. 

U.S. 

U.S. 
U.  S. 

U.S. 


u.  s, 

U.S. 

u.  s, 

U.S. 

u.  s, 
u.  s 

u.  s, 


Moses,  4  Wash.  736 
Mulvauey,  4  Parker,  164 
Mundell,  6  Call,  245 
Nelson,  1  Abb.  135      . 
Nichols,  4  McLean,  23 
Nye,  2  Curtis  C.  C.  225 
O'Neill,  2  Sawyer,  481      . 
Palmer,  3  Wheat.  610 
Parsons,  2  Blatchf.  104    . 
Passmore,  4  Dall.  372 
Patterson,  3  McLean,  53,  299 
Perez,  9  Wheat.  579  . 
Peters,  2  Abb.  494 
Pirates,  5  Wheat.  184 
Pond,  2  Curtis  C.  C.  265 
Poyer,  3  Wash.  C.  C.  234      . 
Prescott,  2  Dillon,  405;  1  Green's  Cr.  R 
"  2  Bis.  325 

2  Abb.  169 
Preston,  3  Pet.  65     . 
Ramsay,  Hemp.  481 
Randall,  Deady,  523  . 
Reed,  2  Blatchf.  435 
Reid,  12  How.  U.  S.  361 
Ross,  1  Gallis.  624 
Roundenbush,  1  Bald.  514    . 
Sa-Coo-Da-Cot,  1  Abb.  377 
Schimer,  5  Biss.  195. 
Schooner  Catharine,  2  Paine  C.  C.  721 
Schooner  Kitty,  Bee,  252 
Schumann,  2  Abb.  523     . 
Scott,  4  Biss.  29 
Seagrist,  4  Blatchf.  420   . 
Shackleford,  18  How.  U.  S.  588 
Shelburne,  1  Bald.  350     . 
Shepard,  1  Abb.  431 


439 


V.  Shoemaker,  2  McLean,  114 

V.  Skid  dy,  11  Pet.  73     .  .  .  . 

V.  Small,  2  Curtis  C.  C.  241 

V.  Smith,  2  Bond,  323    .... 

"         1  Dillon  C.  C.  212 

"         5  Wheat.  153 

"        4  Day,  121  ..  . 

V.  Sonachall,  4  Bis.  425 
V.  Souders,  2  Abb.  456 
v.  Stetson,  3  Woodb.  &  Minot,  164 
V.  Stewart,  2  Dallas,  343      . 
V.  Taintor,  11  Blatchf.  374;  2  Greens  Cr.  R.  241 
V.  Tallman,  10  Blatchf.  21 ;  1  Green's  Cr.  R.  418, 
V.  Terrell,  Ilcmp.  411     . 


Forgery  and  counterfeiting,  222. 
Letter,  421, 
Indictment,  328. 
Forgery  and  counterfeiting,  197. 
Perjury,  499. 
Revolt,  542. 
Briljery,  85. 
Piracy,  515,  516. 
Larceny,  383. 
Perjury,  500. 
Witness,  649. 

Former  acquittal  or  convic.  224. 
Forgery 'and  coun.terfeiting,  200. 
Piracy,  515,  516. 
Letter,  421. 
Treason,  587. , 
Evidence,  142. 
False  pretenses,  181. 
Indictment,  334. 
Slave  trade,  562. 
Jurisdiction,  368. 
Evidence,  152. 
Indictment,  327. 
New  trial,  460. 
Homicide,  261. 

Forgery  &  counterfeiting,  221,  222. 
Jurisdiction,  366. 
Misdemeanor,  438. 
Slave  trade,  563. 
Slave  trade,  563. 
Nolle  prosequi,  465. 
Indictment,  340. 
Revolt,  542. 
Trial,  593. 
Perjury,  496. 

Arrest,  20;    Ex.  of  party  arr.  171; 
Indi't,328;  Inf.  353;  Stat.  581. 
Former  acquittal  or  convict'n,  224. 
Slave  trade,  563. 
Assault  and  battery,  43. 
Conspiracy,  107;  Evidence,  159. 
Conspiracy,  108. 
Piracy,  515. 
Slave  trade,  561. 
Perjury,  499. 
Voting,  643. 
Judgment,  363. 
Bail  and  recognizance,  60. 
Eni'jozzlcnient,  123. 
Jury,  37 1 . 
Jurisdiction,  368. 


810 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


U.  S.  V.  The  Isle  cle  Cuba,  3  Cliff.  295      . 

U.  S.  V.  Thomas,  4  Benedict,  370:  2  Abb.  114 

U.  S.  V.  Thompson,  1  Sumner,  168 

U.  S.  V.  Thorpe,  2  Bond,  340 

U.  S.  V.  Travers,  2  Wheeler's  Or.  Cas.  490 

U.  S.  V.  Troax,  3  McLean,  431 

V.  S.  V.  Trout,  4  Bis.  105 


U.  S.  V.  Tully,  1  Gallis.  247    . 

U.  S.  V.  Turner,  2  Wheeler's  Crim.  Cas.  615 

"  "        7  Peters,  133 

U.  S.  V.  Van  Sickle,  2  McLean,  219^ 
U.  S.  V.  Vigol,  2  Dall.  346 
U.  S.  V.  Ward,  1  Wool.  C.  C.  17    . 
U.  S.  V.  Warner,  4  McLean,  463 
U.  S.  V.  Watson,  7  Blatchf.  60      . 

"  "3  Benedict,  1 

r.  S.  V.  Westervelt,  5  Blatchf.  30 
V.  S.  V.  Wilcox,  4  Blatchf.  385 

4  Blatchf.  391,  393 
U.  S.  V.  Williams,  4  Bis.  302    . 

1  ClifiF.  5 
U.  S.  V.  Wilson,  7  Peters,  150 

1  Baldw.  78 
U.  S.  V.  Wiltberger,  3  Wash.  C.  C.  515 
U.  S.  V.  Wood,  3  Wash.  C.  C.  440 

"       14  Peters,  430 
U.  S.  V.  Worrall,  2  Dallas,  384       . 
Uterburgh  v.  State,  8  Blackf.  202 


Slave  trade,  504. 

Smuggling,  565. 

Pvevolt,  541. 

Jury,  309. 

Homicide,  373,  274. 

Witness,  649. 

Forgery  and  counterfeiting,  203, 

209;  Indictment,  347. 
Piracy,  515. 

False  imprisonment,  172. 
Forgeiy  &  counterfeiting,  198, 200. 
Witness,  659. 
Treason,  587. 
Jurisdiction,  368. 
Homicide,  312. 
Xolle  prosequi,  465. 
Trial,  611. 
Kidnapping,  372. 
Forgery  and  counterfeiting,  203. 
Perjury  &  subor.  of  perj.  503,  514. 
Forgery  &  counterfeiting,  203,  305. 
Homicide,  270 ;  New  trial,  440. 
Pardon,  494. 

Robbery,  546;  Trial,  597,598,600. 
Homicide,  302,305. 
Evidence,  135 ;  Robbery,  546. 
Perjury,  511. 
Bribery,  85. 
Trial,  593. 


V 


Vaiden  v.  Com.  12  Gratt.  717       . 
Vallad  V.  Sheriff,  11  Mo.  24     . 
Vallejo  V.  Wheeler,  Oowp.  143     . 
Vance  v.  Com.  2  Va.  Cas.  162 
Vandermark  v.  People,  47  111.  123 
Vanderworker  v.  State,  8  Eng.  700     . 
Vannatta  v.  State,  31  Ind.  210 
Van  Sickle  v.  People,  29  Mich.  61      . 
Van  Steenburgh  v.  Kortz,  10  Johns,  167 
Van  Zant  v.  People,  2  Parker,  168 
Vass  V.  Com.  3  Leigh,  786 
Vasser  v.  State,  33  Ala.  586     . 
Vattier  v.  State,  4  Blackf.  73 
Vaughan  v.  Com.  17  Gratt.  576 

"  "       2  Va.  Cas.  273 

Vaughan,  Ex  parte,  44  Ala.  17 
Veach  v.  Elliott,  1  McCook,  139 


Homicide,  319,  330. 

Fugitives  from  justice,  335. 

Barretry,  71. 

New  trial,  446  ;  Venue,  ch.  of,  636. 

Indictment,  332. 

Gaming,  237,  342. 

Information,  354. 

Evid.157;  Forg.  &  counter'g,  201. 

Perjury,  498. 

Misdemeanor,  437. 

Homicide,  293. 

Bail  and  recognizance,  70. 

Trial,  593. 

Burglary,  95;  Evidence,  145. 

Former  acquittal  or  conviction,225. 

Bail  and  recognizance,  60. 

Gaming,  338. 


TABLE   OF   CASES. 


811 


Title  of  Case  and  Report. 


Subject  and  Page. 


Venable  v.  Com.  24  Conn.  639 
Vermilyea,  Ex  parte ^  6  Cow.  555 
Vicaro  v.  Com.  5  Dana,  505    . 
Villareal  v.  State,  26  Texas,  107 
Villery  v.  Com.  8  B.  Mon.  3  . 
Vincent,  Ex  %Kirte^  2G  Ala.  145 
Vincent  v.  People,  5  Parker,  88 
Vogelsong  v.  State,  9  Ind.  112 


Evidence,  147. 

Certiorari,  96;  Trial,  596,  598. 

Gaming,  238. 

Homicide,  276. 

Bail  and  recognizance,  61. 

Burglar}',  88. 

Forgery  and  counterfeiting,  210. 

Sunday,  584. 


w 


Wade  T.  State,  12  Ga.  25        . 
Wadlin's  Case,  11  Mass.  142  . 

"Wagner  v.  People,  4  N.  Y.  Ct,  of  App.  Decis.  509 ; 
afti'g  54  Barb.  367 ;  2  Keyes,  684      . 

Wait  V.  Green,  5  Parker,  185 
Wakeman  v.  State,  4  Sneed,  425 
Wakker,  Matter  of,  3  Barb.  162 
Walker  v.  Com.  8  Bush,  676         . 

"  "      3  A.  K.  Marsh.  355 

Walker  v.  State,  6  Ala.  350  . 

"  "       5  Ga.  491      . 

"  "       37  Texas,  366     . 

"  "       49  Ala.  398  ... 

Walker's  Case,  8  Leigh,  743 

"  "     1  Leigh,  574     . 

Wall  V.  State,  18  Texas,  682  . 

Wallace  v.  People,  63  111.  451 ;  2  Green's  Cr.  R.  562. 
Wallace  v.  Young,  5  Monr.  156         . 
Waller  v.  State,  40  Ala.  325 

"      4  Ark.  87     . 
Walsh  V.  People,  65  111.  58  .  •  . 

Walsh's  Case,  2  Wallace,  Jr.  143 
WalstoQ  V.  Com.  16  B.  Mon.  15  . 
Walter  v.  People,  6  Parker,  15 ;  32  N.  Y.  147 


Walton  V.  State,  6  Yerg.  377 
"  "3  Sneed,  687 

Waltzer  v.  State,  3  Wis.  788 
Walworth  v.  McCullough,  10  Johns.  03 
Ward  V.  People,  3  Hill,  395 
Ward  V.  State,  28  Ala.  53 

"  "      23  Ala.  10 

"  "      2  Mo.  120 

"  "      8  Black  f.  101 


Trial.  597,  626. 
Grand  jury,  248. 

Indictm.  330,  350 ;  Insan.  356,357 ; 
Homicide,  273,  300. 

Malicious  mischief,  429. 

Homicide,  288 . 

Habeas  corpus,  249. 

Attorney,  58. 

Bastardy,  73. 

Bail  and  recognizance,  65. 

Bastardy,  73,  76. 

New  trial,  460;  Trial,  621,  623. 

Trial,  614. 

Larceny,  375. 

Larceny,  406. 

Statutes,  580. 

Larceny,  393. 

Arson,  25. 

Former  acquittal  or  convict.  231 ; 
Rape,  520,  522 ;  Trial,  597,  629. 

New  trial,  464. 

Misdemeanor,  437. 

Trial,  601. 

Judgment,  363. 

Homicide,  256,  270,  275  ;  Insanity, 
359;  Rape,  518,  519,  522;  Stat- 
utes, 579 ;  Trial,  597. 

Forgery  and  counterleitiiig,  196. 

Former  acquittal  or  convict.  224. 

Sentence,  556. 

Bastardy,  73. 

Bill  of  except.  82;  Larc.  384,  410. 

Assault  and  batt.  43,  46;  Venue, 
change  of,  636. 

Gaming.  241. 

Grand  jury,  248. 

Homicide,  293;  New  trial,  442. 


8J2 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


"Ward  V 

State,  48  Ala.  161       . 

u 

"      3  Hill,  395             .             . 

<4 

"      1  Humph.  253 
"      3  Mo.  98    . 

"Ward's 

Case,  3  Leigh,  743       . 

Warner 

V.  Com,  2  "Va.  Cas.  95      . 

"Warner  v.  "Willey,  2  Root,  490 
Warren  v.  People,  3  Parker,  544  . 
"VWirren  v.  State,  33  Texas,  517 

1  c 

"      1  Greene,  106     . 

( i 

"      19  Ark.  214 

(1 

"      4  Cold.  Tenn.  130 

"Wash  V 

Belk,  3  Conn.  302     . 

Wash  V. 

Com.  16  Gratt.  530 

Wash  V. 

State,  14  Sm.  &  Marsh.  .120 

Washbui-n,  Matter  of,  3  Wheeler's  Cr.  Cas.  4T3 
Washington  v.  State,  41  Texas,  583    . 
Waterman  v.  People,  67  111.  91     . 
Watson  V.  People,  64  Barb.  130 

Watson  V.  State,  3  Ind.  123 

"      36  Miss.  593 
Wattles  V.  Marsh,  5  Cow.  176       . 
Watts'  Case,  4  Leigh,  672       . 
Watts  V.  State,  5  West  Va.  532     . 
Way  V.  State,  35  Ind.  409       . 
Weatherford  v.  Com.  10  Bush,  196 
Weaver  v.  State,  24  Texas,  387 

"       24  Ohio,  K  S.  584 
Webber  V.  State,  10  Mo.  4 
Webster  v.  Com.  5  Cush.  386 
Webster  v.  State,  8  Blackf.  400 
Webster's  Case,  5  Maine,  432 
Weed  V.  People,  3  N.Y.  Supm.  K  S.  50;  56  N.Y.  628. 

"  31  N.  Y.  465  . 
Weinberg  v.  State,  25  Wis.  370 
Weinzorflin  v.  State,  7  Blackf.  186 
Weis  V.  State,  22  Ohio,  N.  S.  486 
Welch  V.  Scott,  5  Ired.  72 
Weldon  V.  State,  32  Ind.  81  . 
Wellar  v.  People,  30  Mich.  16  , 
Wells  V.  Com.  12  Gray,  326  . 
Wells  V.  Jackson.  3  Munf.  458  . 
Welsh  V.  People,  17  111.  339  .... 
Wertz  V.  State,  42  Ind.  161;  2  Green's  Cr.  Reps.  681. 
Wesley  v.  State,  37  Miss.  327         . 

"  "       11  Hnmph.  502 

West  V.  Com.  3  J.  J.  Marsh.  641  . 
West  V.  State,  2  Zabr.  213        . 

"  "      48  Ind.  483  .  .  '  . 


Larceny,  384. 

Larceny,  394. 

Trial,  596. 

Witness,  656. 

Gaming,  236. 

Bigamy,  80. 

Bastardy,  74. 

Nuisance,  476. 

Assault  and  battery,  .34. 

Larceny,  414;  Trial,  604. 

Trial,  606. 

Trial,  619. 

Sentence,  558. 

Forgeiy  and  counterfeiting,  220. 

Bill  of  except.  81 ;  Indictm.  340, 
349;  Rape,  532;  Verdict,  640. 

Fugitives  from  justice,  233. 

False  pretenses,  184. 

Forgery  and  counterfeiting,  200. 

Evidence,  158 ;  Forg.  and  counter- 
feiting, 219;  Trial,  623. 

Gaming,  238,  244. 

Larceny,  377,  385. 

Habeas  corpus,  251. 

Rape,  532. 

Access.  9;  Evid.  157;  Indict.  348. 

Larceny,  409. 

Verdict,  640. 

Assault  and  battery,  48. 

Homicide,  301. 

Libel,  425. 

Sentence,  561. 

Gaming,  242. 

Indictment,  346. 

Abortion,  5,  7. 

Sentence,  558;  Writ  of  error,  661. 

Bigamy.  79. 

Ind.  349;  New  trial,  449;  Rape,  520. 

New  trial,  456. 

Warrant,  645,  647. 

Rape,  531. 

Trial,  608. 

Indictment,  334 ;  Nuisance,  478. 

Warrant,  646. 

Larceny,  373. 

Nuisance,  481. 

Homicide,  298,  318. 

New  trial,  455. 

Gaming,  236. 

Ev.  133,  134;  Tri.  631;   Wit.  654. 

Evidence,  165,  166. 


TABLE   OF   CASES. 


813 


Title  of  Case  and  Report. 


Subject  and  Page. 


West  V.  State,  2  Ala.  312  . 

Weyniau  v.  Peoijle,  6  N.  Y.  Siipin.  N.  S.  69G 

Whaley  v.  State,  11  Ga.  123 

Wharton  v.  State,  5  Cold.  Tenn, 

Wheat  V.  State,  6  Mo.  455 

Whelchell  v.  State,  23  Ind.  89 

White  V.  Com.  6  Binu.  179 

"      9  Bush,  Ky.  178 
White,  Ex.  parte,  4  Eng.  222 

"      40  Cal.  434  . 
White  V.  People,  32  N.  Y.  465 

White  V.  State,  22  Texas,  G08 
"  "       5  Yerg.  183 

"       49  Ala.  344    . 

"       3  Heisk.  338 
"  "31  Ind.  262    . 

"1  Smed.  &  Marsh.  149 

"       17  Ark.  404   . 
Whiteford  v.  Com.  6  Rand.  721     . 
Whitehead  v.  State,  4  Humph.  278 
Whitesides  v.  People,  Breese,  4    . 
Whiting  V.  State,  14  Conn.  487 
Whitley  v.  State,  38  Ga.  50 
Whitlock  V.  Roth,  10  Barb.  78 
Whitman's  Case,  2  Wall.  Jr.  147  . 
Whitney  v.  State,  8  Mo.  168   . 

"  "       35  Ind.  503       . 

Whittem  v.  State,  36  Ind.  196 
Whitten  v.  State,  47  Ga.  297 ;  1  Green's  Cr.  Rep 
Wholford  V.  Com.  4  Gratt.  553 
Wickersham  v.  People,  1  Scam.  128,  130. 
Wicks  V.  State,  44  Ala.  398    . 
Wickwire  v.  State,  19  Conn.  477 

Wigin  V.  Amory,  14  Mass.  1    . 
Wilborn  v.  State,  8  Smed.  &  Marsh.  345  . 
Wilbur  V.  Crane,  13  Pick.  284 
Wilburu  V.  State,  41  Texas,  237  . 
Wilcox  V.  State,  7  Blackf.  456 
Wilde  V.  Com.  2  Mete.  408 
Wilder  v.  State,  47  Ga.  522     . 
Wiles  V.  Brown,  3  Barb.  37 
Wiley  V.  State,  1  Swan,  256     . 
Wilke  V.  People,  53  N.  Y.  525      . 
Wilkinson  v.  State,  10  Ind.  372 
Willey  V.  State,  46  Ind.  363 
Williams  v.  Blincoe,  5  Litt.  171 
Williams'  Case,  2  Gratt.  567 
Williams  v.  Com.  9  Bush,  Ky.  274     . 
Williams  v.  People,  24  N.  Y.  405 


Sentence,  555  ;  Verdict,  640,  643. 

Larceny,  377,  406. 

Evidence,  155;  Trial,  595. 

Statutes,  580. 

Evidence,  130. 

Homicide,  267. 

Homicide,  265. 

Homicide,  265. 

Bail  and  recognizance,  61. 

Fugitives  from  justice,  235. 

Assault   and  batteiy,    47 ;  Indicts 

340,  352  ;  Verdict,  638. 
Assault  and  battery,  57. 
Bail  and  recognizance,  69. 
Burglary,  93. 
Evidence,  148. 
Evidence,  166. 

Habeas  corpus,  349 ;   Perjury,  499. 
New  trial,  458. 
Homicide,  356. 
Accessory,  10. 

Indictment,  334,  346 ;  Riot,  543. 
Information,  354. 
Homicide,  293. 
False  pretenses,  180. 
Trial,  594. 
New  trial,  453. 
New  trial,  463. 
Contempt,  110. 
Evidence,  170. 
New  trial,  458. 

Indictment,  326;  New  trial,  463. 
Burglary,  91. 
Indict.    353;    Misdemeanor,    439; 

Spirituous  liquors,  sale  of,  576. 
Barratry,  71. 
Larceny,  415. 
Bastardy,  72. 
Burglary,  91. 
Gaming,  245. 

Burg.  88;  Inform.  354;  Sent.  558. 
Officer,  489. 
Habeas  corpus,  254. 
New  trial,  455. 

Tri.  609;  Wit.  651 ;  Writ  of  er.661. 
Forgery  and  counterfeiting,  208. 
Abortion,  4. 
Bastardy,  72. 
Trial,  611. 
Trial,  613. 
Larceny,  413. 


814 


TABLE   OF   CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Williams  v.  People,  45  Barb.  201 

"  '^         44  111.  478 

Williams  v.  State,  47  Ind.  568      . 

"  "     44  Ala.  43  . 

"  "     52  Ga.  580 

"  "     2  Snecd,  160 

"  "       41  Texas,  209 . 

«  "       29  Ala.  532 

"  "       47  Ala.  659     . 

"  "       9  Humph.  80 

"  "       51  Ga.  535       . 

»  "       16  Ind.  461 

«  "       12  Smed.  &  Marsh.  58 

"  "       3  Heisk.  376;  1  Green's  Cr.  R 

"  "       2  Carter,  439   . 

"  '•       9  Mo.  268  . 

"  "       12  Ohio,  N.  S.  622 

"  "       4  Mo.  480  . 

"  '^       7  Humph.  47   . 

"  "       47  Miss.  609 

"  "       14  Ohio,  322  . 

"  "       8  Humph.  585 

"  "8  Sneed,  813    . 

"  "       3  Kelly,  453 

"  "       45  Ala.  57 ;  47  lb.  659 

Williamson  v.  State,  16  Ala.  431 
Williford  v.  State,  17  Texas,  653  . 
Willis  V.  People,  5  Parker,  621 
"  "         1  Scam.  399 

"  "  32  N.  Y.  715 

Willis  V.  State,  12  Ga.  444 
Wills  V.  People,  3  Parker,  473 

Wills  V.  State,  8  Mo.  52  . 

"  "      4Blackf.  457  . 

Wilson  V.  Com.  3  Bush.  105 
Wilson  V.  People,  4  Parker,  619 


"  "       39  N.  Y.  459  . 

Wilson  V.  State,  3  Heisk.  278;  1  Green's  Cr.  R.  550. 

"  "       16  Ind.  392 

"  "       24  Conn.  57  . 

•'  "       31  Ala.  371 

"  "      5  Texas,  21   . 

"  "       32  Texas,  112      . 

"  "       1  Porter,  118 

"  "       5  Ark.  513 

"       20  Ohio,  26  . 
Wilson  V.  Wilson,  Wright,  128     . 
Wilson's  Case,  9  Leigh,  648  . 
Winder  v.  State,  25  Ind.  234 
Windham  v.  State,  26  Ala.  69 


New  trial  459. 

Trial,  630. 

Assault  and  battery,  55. 

Bigamy,  79,  80 ;  Homicide,  359. 

Burglary,  86. 

Extortion,  171,  172. 

Evidence,  129 

Evidence,  148. 

Evidence,  165. 

Forgery  and  counterfeiting,  206. 

Forgery  and  counterfeiting,  310. 

Forgery  and  counterfeiting,  217. 

Gaming,  338,  245  ;  Misdem'r,  488. 

Homicide,  315. 

Incest,  325. 

Indictment,  828 ;  Riot,  543. 

.Jury,  369. 

Lasciviousness,  417. 

Perjury,  504. 

Rape,  519. 

Rape,  519,  520. 

Rape,  530,  531. 

Religious  meeting',  disturb,  of,  540. 

Trial,  597. 

Trial,  612,  615,  620. 

Indictment,  326. 

Bail  and  recognizance,  64. 

Certiorari,  96;  Insanity,  356, 

Continuance,  113;  Indict.  333. 

Insan.  356 ;  Juris.  367 ;  New  tr.457. 

Trial,  597. 

Evidence,    138;   Receiving   stolen 

property,  536,  537,  588. 
Indictment,  833. 
Larceny,  398. 
Homicide,  317. 
Homicide.    256,    272,   307;     New 

trial,  442,  460,  4C1. 
Larceny,  382. 
Aflfray,  17. 
Attorney,  58. 

Former  acquittal  or  convic.  230. 
Gaming,  239. 
Gaming,  243. 
Grand  jury,  247. 
Larceny,  373,  377,  382,  395. 
Larceny,  383. 
Verdict,  639. 
Adultery,  15. 
Gaming,  238. 
Larceny,  392. 
Gaming,  240. 


TABLE  OF   CASES. 


815 


Title  of  Case  and  Report. 


Subject  and  Page. 


Windsor  v.  State,  13  Ind.  375       . 
Windsor's  Case,  4  Leigb,  680 
Wininger  v.  State,  13  Ind.  510     . 
Winter  v.  State,  30  Ala.  22     . 
Wise  V.  State,  3  Kansas,  419 

*"  "       24  Ga.  31  .  . 

Witherby  v.  State,  39  Ala.  702     . 
Witt  V.  State,  6  Cold.  Tenn.  5 
Wixon  V.  Peojjle,  5  Parker,  119  . 
Wolf  V.  State,  19  Ohio,  N.  S.  485      . 

"  "         41  Ala.  412  ..  . 

Wolfstein  v.  People,  13  N.  Y.  Supm.  X.  S.  121 
Wolverton  v.  State,  16  Ohio,  173 
Womack  v.  State,  7  Cold.  Tenn.  508 
Wood  V.  People,  3  N.  Y.  Supm.  N.  S.  506;    8  lb 
381;  59  N.  Y.  117 
53  N.  Y.  511       . 
Wood  V.  Phillips,  43  N.  Y.  152  . 

Wood  V.  Ross,  11  Mass.  271 
Wood  V.  State,  46  Ga.  322      . 

"  "       5  Ind.  433  ..  . 

"  "      48  Ga.  192      . 

"  "       2  Mo.  98  . 

Woodburk  v.  Williams,  1  Blackf.  110 
Woodcock  V.  Walker,  14  Mass.  386 
Woodford  v.  State,  5  N.  Y.  Supm.  N.  S.  539 

"  "       1  Ohio,  N.  S.  427      . 

Woodin  V.  People,  1  Parker,  464 
Woods  V.  People,  55  N.  Y.  515 ;    IKY.  Supm.  "N. 

S.  610 ;  1  Green's  Or.  Reps.  659  . 
Woods  V.  State,  43  Miss.  364        . 
Woodside  v.  State,  2  How.  655 
Woodward  v.  Shaw,  18  Maine,  304 
Wbrtham  v.  Com.  5  Ranfl.  669  • 

Wreford  v.  Peo2)le,  14  Mich.  41    . 
Wren  v.  Com.  26  Gratt.  952  . 
Wright  V.  Lindsay,  20  Ala.  428   . 
Wright  V.  People,  61  111.  382 
Wright  V.  State,  5  Blackf.  358     . 

"  "       5  Iowa,  527  .  .  . 

"  "      61  111.  382;  2  Green's  Cr.  R.  558. 

"  "      41  Texas,  246    . 

"  "       4  Huraiih.  194 

"  "       30  Ga.  325 

"  "       34  Ga.  110    . 

"  "       5  Yerg.  154 

"  "       5  Ind.  290    . 

Wroe  V.  State,  20  Oluo,  N.  S.  460 
Wusing  V.  State,  33  Texas,  651 
Wyatt  V.  State,  1  Blackf.  257      . 
Wynhamer  v.  People,  20  Barb.  507;  13  N.  Y.  378. 


Malicious  trespass,  434. 

Gaming,  244. 

Former  acquittal  or  convic.  230. 

License,  425. 

Homicide,  298. 

Larceny,  406;  New  trial,  459. 

Statutes,  581. 

Homicide,  272,  300. 

Acces.  8  ;  Evid.  158;  Witness,  650. 

Arrest,  22. 

Larceny,  405 ;    Misdemeanor,  440. 

Larceny,  377. 

Bigamy,  80. 

Homicide,  268. 

Bill  of  ex.  82,  83 ;   Perj.  498,  504. 

Indictment,  341. 

Forcible  entry  and  detainer,  192. 

Arrest,  21. 

Burglary,  87,  New  trial,  443. 

Nuisance,  477. 

Seduction,  550,  552,  553. 

Witness,  655. 

Bastardy,  72. 

Bastardy,  76. 

Arson,  23,  26,  30 ;  Indict.  351. 

Sentence,  556,  557. 

Evi.  160;  Rape,  522,  527,  528. 

Rape,  520,  527. 
New  tiial,  455. 
Homicide,  292. 
Bastardy,  75. 

Former  acquit,  or  convic.  224,231. 
Nuisance,  468. 
Escape,  124. 
Larceny,   378. 
Misdemeanor,  439. 
Adultery,  14. 
As-^ault  and  battery,  57. 
Embezzlement,  118. 
Homicide,  292. 
Indictment,  339;  Rape,  519. 
Malicious  mischief,  434. 
New  trial,  459. 

Receiving  stolen  property,  533. 
Trial,  628. 
Homicide,  293. 
Trial,  622. 
Larceny,  399. 

Bill  of  exceptions,  81 ;    Spir.  liq. 
sale  of,  566,  577 ;    Statutes,  578. 


810 


TABLE  OF  CASES. 


Title  of  Case  and  Report. 


Subject  and  Page. 


Yarborough  v.  State,  41  Ala.  405 
YateS'  Case,  4  Johns.  317 
Yates  V.  Lansing,  Jr.  9  Johns.  395 
Yates  V.  People,  33  N.  Y.  500 

"        38  111.  527  ..  . 

Yates  V.  State,  10  Yerg.  549    . 

"  "37  Texas,  203         . 

Yoe  V.  People,  49  111.  410        . 
Yoes  V.  State,  4  Eug.  42   . 
Young  V.  Com.  2  A.  K.  Marsh.  63     . 

"      8  Bush,  36B;  1  Green's  Cr.  R.  710. 

"  "      G  Bush,  313  . 

"  "4  Gratt.  550  . 

Young  V.  Shaw,  1  Chip.  334        . 
Young  V.  State,  11  Humph.  300 

"  "      39  Ala.  357         . 


Evi.  158;  Larc'y,414;  Pardon,495. 

Habeas  corpus,  249. 

Habeas  corpus,  351. 

Evidence,  157;  Homicide,  316. 

Trial,  636. 

Bill  of  excep.  83  ;  Larceny,  401. 

Larceny,  409. 

Evidence,  132. 

Ass.  &  batt.  32,  44 ;  Misdem'r,  437 . 

Bastardy,  76. 

Evi.  144,148,  166;  Homi.  266. 

Evi.  151 ;  Homicide,  295,  317. 

New  trial,  457. 

Bail  and  recognizance,  59. 

Homicide,  305,  313,  315,  321. 

New  trial,  449  ;  Sentence,  554. 


z 


Zellers  V.  state,  1  Ind.  659     ....      Comp't,  100;  Forg.  &  count.  217. 
Zschocke  v.  People,  62  111.  127  ;  3  Green's  Cr.  R.  560.     Larceny,  373. 


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